Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases

Good men everywhere praise the presumption of innocence. And be they Frenchmen, Germans, or Americans, they agree on the demand of the presumption in practice. Both here and abroad, the state\u27s invocation of criminal sanctions demands a high degree of proof that the accused has committed the offense charged. To express the requisite standard of proof, common lawyers speak of the prosecutor\u27s duty to prove his case beyond a reasonable doubt. And Continental lawyers invoke the maxim in dubio pro reo – a precept requiring triers of fact to acquit in cases of doubt. The French speak of the presomption d\u27innocence; and the Germans of the Unschuldsvermutung. By duplicating existing rules on the prosecutorial burden of persuasion, these rubrics provide rhetorical affirmation of the long-standing Western concern that only the guilty should suffer under the criminal law. This concern prompted Hale to remark in the late 1600\u27s that five guilty men should be acquitted before one innocent man is convicted. This kind of ratio, expressing toleration for acquitting the guilty, has become a stock figure of common law rhetoric; Blackstone raised the ratio to ten to one, and others of libertarian sentiment have favored twenty to one. Like the presumption of innocence, these ratios express a commitment to the dignity of the individual. Expressed in many media, the message of that commitment remains the same: the interests of the individual ought not readily yield to the supposed benefits of applying criminal sanctions. If the commitment of Western legal systems to the principle that only the guilty should suffer criminal sanctions is expressed in a medley of rules, rubrics and metaphors, it is nonetheless a commitment that doth protest too much. For all the rhetoric and the ratios of freed criminals to convicted innocents, we, and especially we in the United States, do not live fully attuned to our commitment; we do not invariably require acquittal in cases of doubt on critical issues in the criminal process. But we do demand proof beyond a reasonable doubt, the faithful will insist. And it is true that we do – in some cases. It is always the case, both here and abroad, that the prosecutor must prove beyond a reasonable doubt that the accused fired a homicidal bullet or that the accused set the match to a barn consumed in flames. On these issues, we are indeed faithful to the policy of certainty in imposing criminal sanctions; any other approach – say the demand that the suspected murderer prove that it wasn\u27t he who fatefully pulled the trigger – would trouble the conscience of Frenchmen and Californians alike