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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.

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