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
George P. Fletcher*
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
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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 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 with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?