Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration

Abstract

This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions-in particular, the disciplinary assumptions-implicit in influential contributions to debates on the presumption of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers (and some legal scholars) routinely treat the presumption of innocence as (in some sense) epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and practical reasons why legal scholars and practitioners (and possibly others) concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions, the article aims to show why legal scholars might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts.

The reasonable doubt standard as inference to the best explanation

“…Others claim that the presumption creates certain procedural rights for the defendant such as the right to remain silent. Finally, others equate the presumption with the proof standard, meaning that there should be a high burden before we can prove guilt (Roberts 2020). However, my account does set a high burden for proving guilt, because the best innocence explanation should be much more plausible than any innocence explanation.…”

“…4, I argue that my comparative account nonetheless squares with the non-comparative nature of criminal law. 1 In his article within this special issue Roberts (2020) argues against such 'epistemic' interpretations of proof rules. He instead advocates interpreting proof rules, and in particular the presumption of innocence, by looking at how they are actually used within specific legal systems, in a way that is sensitive to the history and institutional details of those systems.…”

Rethinking the relationship between reverse burdens and the presumption of innocence

“…It is perhaps telling in this respect that even the most ardent advocate of a minimalist, purely procedural PoI, Paul Roberts, also states that ‘properly conceived…the presumption of innocence is a complex doctrine of political morality, from which Woolmington [and] other important procedural rules and principles are derived’ (Roberts, 2014: 318). Perhaps with this in mind, Roberts has recently advocated for greater methodological pluralism in discussions of the PoI and cautioned against conducting a ‘tournament among rival conceptions’ of the presumption, in search of one ‘outright winner’ (Roberts, 2020: 2). This reveals the truth of the matter, which is that the choice presented by Picinali rests on a false dichotomy.…”

“… 7. For more on the confusion caused by use (and misuse) of jargon surrounding the presumption of innocence generally, see Roberts (2020). …”

Putting the ‘presumption’ back in the ‘presumption of innocence’

“…The first of these equates a presumption of innocence with a belief in innocence (hereafter, the Belief Thesis). This equivalence gives rise to two seemingly fatal problems (addressed under ‘The Belief Thesis’): it is thought that a presumption—conceived as a belief—in a defendant's innocence would stymy the investigation and prosecution of criminal offences (Ulväng, 2013: 218); and it is thought that a presumption—conceived as a belief—is not voluntary and thus not a propositional attitude that jurors (or anybody else) can adopt on instruction (Picinali, 2021: 727; Roberts, 2020: 8916).…”