Since the Human Rights Act 1998, scholars and courts have dedicated considerable attention to the presumption of innocence. A major strand of the ensuing debate has focused on the scope of this safeguard. Many academics have argued in favour of according to the presumption a substantiveas opposed to a procedural -role. In other words, these scholars maintain that the presumption set in art. 6(2) ECHR should have some influence on the definition of criminality. Courts seem sympathetic to this approach, albeit not following it to the full extent. The paper, instead, defends a procedural understanding of the presumption of innocence, on the basis of interpretive arguments concerning art. 6(2) ECHR. Besides, it shows that adopting this conception does not entail lowering the protection of the individual before the substantive criminal law.
The presumption of innocence is unanimously considered a fundamental requirement for criminal justice. This notwithstanding, the meaning of the presumption is hotly disputed in the legal scholarship. This article contributes to the debate, advancing a novel theory of the meaning as well as of the justification of the presumption of innocence. It assesses critically the components of the presumption that are discussed and defended in the literature; and it shows that the meaning of the presumption should be unloaded of most of these components. The upshot is a markedly deflationary account, according to which the presumption of innocence consists exclusively of a rule on the allocation of the burden of proof. This rule is justified by appealing to the principle of inertia in argumentation, rather than -as it generally occurs -to the value of protecting the innocent from conviction.
The justification of the reasonable doubt standard has been hotly debated in recent years. Deontologists—including retributivists—have generally defended the standard, whilst consequentialists have generally argued for a lower standard of proof. Captivating arguments have been produced from both sides. The paper narrates this debate through a dialogue between ideal representatives of these different camps. In doing so, it recasts—and, hopefully, improves—some of the arguments presented thus far. Then, the paper introduces a new participant in the debate, the Intermediary. The Intermediary is under the impression that the debate has reached an impasse, due to fundamental moral disagreements between the parties involved. Therefore, she presents them with a challenge: to find a common ground that allows the parties to justify to each other the choice of a standard of proof, notwithstanding their different basic moral commitments. The Intermediary takes up this challenge, and provides a justification for the reasonable doubt standard based on the value of respecting defendants and on rules of instrumental rationality.
The article proposes a normative theory of inferential reasoning for criminal fact finding, centred on the concept of 'analogy'. While evidence law scholars have devoted little attention to the topic, the article maintains that analogy deserves more consideration. In particular, it argues that an analogical theory of inferential reasoning has three main advantages. First, the theory makes it possible to incorporate within a single coherent framework the important insights of different approaches to 'reasoning under uncertainty'; indeed, it welcomes both the Pascalian notion of 'relevance' based on the Bayesian likelihood ratio and the Baconian concept of 'weight'. Secondly, it helps advance the conventional understanding of the reference class problem, an evidential conundrum widely discussed in the recent legal scholarship. Finally, the theory allows for a functional taxonomy of reasonable doubts.
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