About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

70 Wash. L. Rev. 329 (1995)
The Rhetoric of Innocence

handle is hein.journals/washlr70 and id is 339 raw text is: Copyright 01995 by Washington Law Review Association THE RHETORIC OF INNOCENCE William S. Laufer* Abstract- This Article promotes the serious consideration of innocence in the criminal process, and gives meaning to the rhetoric surrounding the presumption of innocence. The first part illustrates the near irrelevance of innocence in an accusatorial system of justice where burdens of proof require proof of guilt The second and third parts of the Article discuss the meaning of the presumption of innocence. It is argued that legislatures and courts have ignored the tension between the conflicting goals of the criminal process by thinking of the presumption of innocence as a legal presumption. As a legal presumption, its effects are indistinguishable from the reasonable doubt rule. Arguments are presented that the presumption should be factually based so that jurors are asked to assume the accused's innocence in fact. This Article concludes with a proposal for a factually based assumption of innocence. INTRODUCTION .............................................................. 330 I. THE IRRELEVANCE OF INNOCENCE .......................... 336 A. Presuming Innocence ................................................... 337 1. Interpretations of the Presumption of Innocence.. 337 a. Proxy for Reasonable Doubt ........................... 340 b. Distinct Rules .................................................. 343 2. Historical Basis ..................................................... 348 3. Normative Process and Decisionmaking Models.. 351 4. Empirical Evidence of Juror Comprehension ....... 361 a. Instructions on Proof Beyond a Reasonable D oubt ............................................................... 364 b. Presumption of Innocence Instructions ........... 367 c. Models of Juror Decision Making ................... 371 B. Theories, Evidence, and Verdicts of Factual Innocence ..................................................................... 374 *Assistant Professor of Legal Studies, Wharton School, University of Pennsylvania (B.A., Johns Hopkins University; J.D., Northeastern University School of Law; Ph.D., Rutgers University). My appreciation to Thomas W. Dunfee, Valerie Hans, Eric Orts, Kenneth Shropshire, and Paul Thurk of the Department of Legal Studies, and Steven Morse of the School of Law of the University of Pennsylvania for commenting on drafts of this article. I owe a special debt of thanks to Prof. Gerhard O.W. Mueller for sharing his thoughts and insights on innocence. This article is dedicated to Justice Brce McM. Wright (Supreme Court of New York) who, throughout his years of service on the bench, challenged judges, politicians, and a racially divided city to honor the presumption of innocence.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most