The Myth of the Presumption of Innocence

James Q. Whitman, in his deeply comparative new article, describes the American criminal justice system, in contrast with continental and inquisitorial systems, as more focused on the danger of innocent persons being arrested and convicted. In this Response, I respond by questioning the comparison on both sides of the equation, not to disagree with its utility or its contours, but because I admire the project and seek to elaborate here on Whitman’s deep concern with unpacking the status of the presumption of innocence and that of mercy. I describe how the American presumption of innocence is more of an ideal than real. Nor does the supposed and oft proclaimed focus in constitutional criminal procedure on the question of guilt or innocence translate into rights protective as against wrongful convictions. However, there is today the potential for a new kind of convergence, as systems on both sides of the Atlantic are responding to wrongful convictions with a rethinking of traditional procedural rules, including rules of finality that long resisted reopening convictions in a broad range of civil and common law systems. Continental systems are increasingly receptive to claims of new evidence of innocence, in part because of lessons drawn from research on wrongful convictions in the United States. And in a reverse irony, inquisitorial tools are influencing efforts to make criminal adjudication in the United States more reliable. As a result, in the years ahead, there is much that all systems can do to make the presumption of innocence far more than the vestigial “inaccurate, shorthand description” of a right that it has so often served as in the past, and instead a “corner stone” of criminal justice