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15 UCLA L. Rev. 1203 (1967-1968)
The Presumption of Innocence in the Soviet Union

handle is hein.journals/uclalr15 and id is 1205 raw text is: THE PRESUMPTION OF INNOCENCE IN THE SOVIET UNION George P. Fletcher* I. INTRODUCTION The presumption of innocence is a curious item in the baggage of Western legal rhetoric. Revered today here and abroad,' it has become a standard clause in international testimonials to the rights of man.2 Yet, at first blush, it seems conceptually anomalous and irrelevant in practice. It is hardly a presumption of fact-a dis- tillation of common experience; statistics betray the suggestion that men indicted on criminal charges are likely to be innocent. Nor is it a legal rule masquerading as an irrebuttable presumption; it is rebuttable by proof beyond a reasonable doubt of the defend- ant's guilt. Further, it is hard to see what the presumption of inno- cence adds to the rules already applied by Western courts. Both common law and civilian courts apply rules requiring the trier-of- fact to acquit in cases of doubt on the material facts. And these rules on the prosecutor's burden of persuasion are neither logically nor historically derivative of a presumption of innocence.8 * Assistant Professor of Law, University of Washington; Visiting Associate Professor of Law, Boston College Law School, 1968-69. 1 The common law presumption of innocence crystallized in early 19th century cases on the burden of persuasion in private disputes; the courts held that men be presumed to have performed their legal obligations and thus that the plaintiff must prove that the defendant failed so to act. This presumption, which in time came to be called the presumption of innocence, was invoked to circumvent the general rule that one need not prove a negative proposition. See, e.g., Williams v. East India Co., 102 Eng. Rep. 571 (K.B. 1802). The French prisomption d'innocence derives from section 9 of the 1789 Declaration of the Rights of Man. By virtue of German adherence to the Convention for the Protection of Human Rights and Fundamental Freedoms, the Unschuldsvermutung (innocence-presumption) is now firmly rooted in West German legal rhetoric. For further discussion and documentation of the presumption's status in West Germany and France, see Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 YALE L.J. 880-81 nn.1-5 (1968). Concerning the presumption in the German Demo- cratic Republic, see Herrmann, Die Prsumtion der Unschuld-ein die Geselischafts- wirksamkeit des sozialistichen Strafverfahrens verstirkendes Prinzip, in (1962) STAAT UND RECHT 1965. 2 See Universal Declaration of Human Rights, art. 11(2), U.N. Doc. A/811 (1948), reprinted in 43 AM. J. INT'L L. 127 (Supp. 1949) ; Convention for the Pro- tection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 6(2), 213 U.N.T.S. 222, 228. 8 The common law rule that the prosecutor must prove guilt beyond a reasonable doubt emerged in the early 19th century. One of the earliest references to the rule is L. MAcNALLY, THE RULES OF EvENcE ON PLEAS OF THE CRowN 398 (1811). It wasn't until the 1850's that, judges began to equate the presumption of innocence 1203

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