When was innocent until proven guilty introduced

Abstract The maxim,' Innocent until proven guilty', has had a good run in the twentieth century. Enter search terms:. Digital Commons. Notorious crimes still trumped presumption of innocence in the jurisprudence of the Ius commune.

One more crucial change had to occur. Paucapalea's argument that the ordo iudiciarius originated in the Bible was the authoritative and powerful reason that brought about a crucial change in thirteenth-century jurisprudence. Before the middle of the thirteenth century jurists accepted the right of the prince or the judge to ignore the rules of the judicial process because they considered legal procedure to be a part of the civil law, that is positive law, and, therefore, completely under the prince's authority.

Paucapalea and the canonists introduced a different story and a different paradigm. If the ordo iudiciarius can be first found in the Old Testament, and if God had to respect the rights of defendants, then the rules of procedure must transcend positive law.

The jurists were not slow to see the implications of Paucapalea's new paradigm. During the second half of the thirteenth century they began to argue that the judicial process was not derived from civil law, but from natural law or the law of nations, the ius gentium.

A paradigm shift occurred. The story is interesting but complicated. So I'll skip most of it. The main point is that once the jurists decided that the norms of procedure were part of natural law, they quickly saw that essential rights of defendants could not be transgressed.

The most sophisticated and complete summing up of juristic thinking about the rights of defendants in the late thirteenth and early fourteenth centuries is found in the work of a French canonist, Johannes Monachus who died in He began by asking the question: could the pope, on the basis of this decretal, proceed against a person if he had not cited him? Johannes concluded that the pope was only above positive law, not natural law.

Since a summons had been established by natural law, the pope could not omit it. He argued that no judge, even the pope, could come to a just decision unless the defendant was present in court.

When a crime is notorious, the judge may proceed in a summary fashion in some parts of the process, but the summons and judgment must be observed. He argued that a summons to court citatio and a judgment sententia were integral parts of the judicial process because Genesis 3. God had been bound to summon Adam; human judges must do the same. Then he formulated an expression of a defendant's right to a trial and to due process with the following words: a person is presumed innocent until proven guilty item quilbet presumitur innocens nisi probetur nocens.

This sentence is the ultimate irony of the story: rather than a sturdy Anglo-Saxon, a cardinal of the Roman church, a Frenchman, a canonist, Johannes Monachus was the first European jurist to recognize the inexorable logic of God's judgment of Adam: God could not condemn Adam without a trial because even God must presume that Adam was innocent until proven guilty.

Johannes' commentary on Rem non novam eventually became the Ordinary Gloss of the late medieval collection of canon law known as the Extravagantes communes. This collection and its gloss circulated in hundreds of manuscripts and scores of printed editions until the seventeenth century.

Since his gloss was read by the jurists of the Ius commune to the time of Cesare Beccaria, it was a primary vehicle for transmitting the principle to later generations of jurists. Roman law, canon law, the Ius commune : from these sources spring that great Anglo-Saxon principle: A person is innocent until proven guilty. The question remains, however, how deeply did this doctrine inform the jurisprudence and court practice of the late medieval and early modern Europe?

Today I can give only a brief outline of the problem and rough sketch of the story's main features up to the time with which we began, the time of Beccaria and MacNally.

A glance at the standard accounts of procedure and law after the thirteenth century would seem to render the opinion risible that any conception of "innocent until proven guilty" existed before the eighteenth century in European jurisprudence.

Inquisitorial courts searching out heresy seem the antithesis of due process and contrary to any conception of defendants' rights. Torture, secret accusations, and arbitrary procedural injustices seem the norm rather than the exception.

Some scholars have argued that the courts had an obligation to punish crimes, it was a matter of public utility, and that procedural short cuts to the "truth" like torture were means through which the courts fulfilled their obligations. So the question is, how did a defendant's right ot a presumption of innocence survive in the late medieval and early mdoern jurisprudence? It has been true in the past and remains true today that procedural rules are broken and rights violated most often when judges have faced crimes that strike society's most sensitive nerves.

The cases in which I have found that the presumption of innocence discussed again and again are those that dealt with marginal groups, especially heretics, witches, and Jews. Let me give a couple of examples. In or , Salamon and his son Moyses, Jews living in Rimini, had been accused by several Christian women of having had sexual relations with them. The case was heard by a Franciscan inquisitor, Johannes de Pogiali. The case fell under the jurisdiction of the Inquisition because Salamon and Moyses had used heretical arguments to seduce the women.

When the they encountered virtuous resistance from the Christian women Salamon and Moyses told them that Christian women who fornicated with Jewish men did not sin. The women testified before the Inquisition that they capitulated to Salamon and Moyses only after having been convinced by their clever arguments.

Although the bare facts might make us think of this case as material for a Boccaccian farce, Salamon and Moyses did not think the accusation was amusing. The inquisitor's summary of the case is of great interest. He called witnesses before him, examined them, and took their oaths to tell the truth. In the end he did not find that the accusations against Salamon and Moyses were juridically and legitimately proven.

It is not often that we find a judge justifying his decision in the Middle Ages. In this case, Johannes de Pogiali did. He examined the facts and concluded that "it was better to leave a crime unpunished than to condemn an innocent person. Johannes had to choose between two conceptions of order: that crimes should be punished in the public interest or that defendants should be presumed innocent if proofs were insufficient, even in a delicate case where an outsider had violated more than just the public order.

When judges and jurists asked themselves that question in the fifteenth and sixteenth century, the theoretical answer was invariably the same: Jews had the same rights of due process as Christians. And if proofs failed, they were presumed innocent.

To be sure, the theory did not always find its way into the courtroom, but the rules were repeated again and again in papal mandates sent to local judges and inquisitorial courts. Some Christian priests refused to absolve them from their sins unless they did penance for their roles in court aiding Jews. A letter of Pope Sixtus IV in mandated that Jews should receive the names of their accusers, should be able to present legitimate exceptions, proofs, and defenses to the court, and, if these rights were violated, could appeal to Rome.

As Pope Paul III declared in , "no one should be deprived of a defense, which is established by the law of nature.

The sixteenth century became a great age for criminal law and procedure in the Ius commune. Earlier jurists had written tracts on torture, evidence, heresy and witchcraft trials, but none had written a detailed tract on criminal procedure.

From the thirteenth to fifteenth centuries, treatises on criminal procedure were, with only a few exceptions, short and schematic.

The names of these proceduralists are not well known: Giuseppe Mascardi, Giovanni Luigi Riccio, Giulio Claro, and Giacomo Menochio are not household names, even to legal historians. One of the great figures in this development was Prospero Farinacci who lived from He was educated in Perugia and quickly discovered both sides of the bench. In he became the general commissioner in the service of the Orsini of Bracciano; the next year he took up residence in Rome as a member of the papal camera.

However, in he was imprisioned for an unknown crime. Legal problems hounded him for the rest of his life. He lost an eye in a fight, was stripped of his positions, and accused of sodomy. He began his most important work, Praxis et theorica criminalis , in and put the finishing touches on it by Farinacci's treatise bristles with the presumption of innocence.

The issue arose in several different contexts. He insisted that the exception of innocence was privileged in law and could never be abolished by statute; if a statute would abolish a defendant's right to a defense, it should be interpreted as only being unjust or calumnious defenses.

Roman legal codes with clear analogs in U. An accused person was entitled to benefits that might be denied to a convict, such as conducting business or passing down an inheritance. The former is a legal concept, applicable narrowly in a courtroom setting, which declares that the burden of proof rests on a prosecutor.

The latter is a relatively broad idea, with legal and social implications, that a person who has not been convicted deserves to be treated as innocent up until the moment of decision. One way in which the difference worked out was immediately clear: American suspects were commonly handcuffed upon arrest, a practice that to his French eyes seemed to diminish the dignity of a presumed-innocent person. But in the course of his research, he found that the application of the idea in French history was subject to a series of ups and downs, to put it mildly.

Although a French man coined the phrase, in 17th century France the maxim had some competition: the idea that he who spares the guilty punishes the innocent. Torture was used to elicit confessions, and certain punishments were meted out upon accusation rather than conviction.

Though King Louis XVI supported the presumption of innocence in the 18th century, the French Revolution dealt the idea a major setback. However, over time and with the knowledge of how far things could go in the other direction, the presumption came back strong — and in recent years, French law has gone even further in strengthening the idea of the presumption of innocence in the broad sense as a matter of human dignity to which all citizens have a well-defined right. In Anglo-American law, things went a different direction.

She opened the door in her nightwear, dishevelled. When she opened the door, the press were behind the police. It is to be noted that she is an elderly woman. After the arrest, all newspaper and TV channels broadcast pictures and videos of her and the arrest. In many countries it is common for suspects to be paraded in physical restraints before the public and media at the time of their arrest and during their transfer to and from court.

In courts, too, it is common for suspects to be restrained even placed in cages or glass boxes when there is no justification for this. Even robust rules governing how suspects are presented in public and in court do not always prove effective in practice, including because of the huge public appetite for these images.

Any form of restraint in court should be strictly limited and should only be used where a case-specific decision has been made by the court that this is required. Relevant information on circumstances relevant to the necessity of restraints should be provided to judges well in advance of hearings.

Cages or glass boxes should be removed from all courtrooms. Training of law enforcement officials is needed to change the culture in relation to the use of restraining measures and special protections against the use of restraints should be put in place for vulnerable groups of suspects children, elderly people, pregnant women.

The presumption of innocence is protected as a matter of law in a wealth of human rights instruments and in national legal systems. It is crucial to ensuring a fair trial in individual cases, to protecting the integrity of the justice system, and to protecting the human dignity of people who are accused of committing crimes. It is clear that the presumption of innocence is affected by how suspects are presented in public, by statements made in public by public authorities about ongoing proceedings, by the content and tone of press coverage, and by the use of restraints in courtrooms or in public settings.

There is huge appetite for sensational, real-crime, real-time stories. This creates pressure for public authorities and the media to violate the presumption of innocence. Even without this, it would be challenging to implement these aspects of the presumption of innocence.

For example, bright-line rules are hard to define: sometimes it will be necessary to arrest a person in a public place even if that exposes them to press scrutiny or to restrain them in court even if that could affect how they are perceived by the decision-maker.

Protecting the presumption of innocence also has to be balanced against other aspects of the right to a fair trial such as the principle of open justice and other human rights such as free speech. The EU Directive is an important first step in making the presumption of innocence a reality in Europe but the EU will have to invest considerable time and political will to ensure its effective implementation. Meaningful reform will require profound changes of law, practice and culture. Robust laws are important, but a formalistic legal approach will not suffice.

Long-term engagement of law enforcement, legal professionals including judges, prosecutors and the defence and the media will be crucial, alongside broader public education. It is a clear violation of the presumption of innocence for a public authority to make public statements implying the guilt of a suspect. In practice, however, such statements are a common occurrence in many countries across the globe including in Europe , particular where there is considerable public interest due to the nature of the offence or identity of the suspect.

The important principle that media should be protected from being required to reveal their sources, facilitates the systemic press reliance on leaks from public authorities. These can take various forms: the press being tipped off about a high-profile arrest, the disclosure of the identity of a suspect or leaking of evidence. Such leaks are exceedingly hard to investigate and sanction, and can create significant bias in press reporting.

Clear legal regimes are required to prohibit public officials making public statements implying the guilt of a suspect. Journalists should not be required to reveal their sources but efforts should still be taken to address the issue of leaks to the press and to sanction violations , for example:.