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 ARTICLE

DEMYSTIFYING THE PRESUMPTION

OFINNOCENCE

JOSEPH N. SORRENTINO*

INTRODUCTION

In recent years controversy has arisen over the meaning and ap-
plication of the presumption of innocence. From the perspective not
as a legal doctrine, but as a phrase of language, the presumption
shares the fate of many other all too familiar expressions which have
been overused or misused. It is losing much of its vigor, becoming a
hollow phrase perfunctorily uttered by lawyers, and may be at risk of
falling into desuetude. The title of Scott Turow's bestselling novel,
Presumed Innocent,' borrows from and extends that familiarity.
A Mississippi court warned years ago that the presumption of in-
nocence was in danger of losing its efficacy because of excesses with
language by trial lawyers. 2 The court opined: "The force of the 'pre-
sumption' as a valuable right available to the defendant is not con-
served by tolerating its expression in the fantastic phrases accepted as
appropriate adjuncts to trial eloquence, whence, indeed, its bombast
was borrowed." 3 The purpose of this essay is to delineate the genesis
and historical evolution of the legal doctrine of the presumption of

* Criminal Prosecutor. B.A., University of California, Santa Barbara, M.A., University of

California, Los Angeles with credits at Oxford University, J.D., Harvard Law School (1967).
Member, Calfornia State Bar; Adjunct Professor(1970-1980) Pepperdine University, University
of Southern California, University of California, Los Angeles, University of West Los Angeles
Law School; Juvenile Court Referee, Municipal Court Judge Pro Tem (1974-1976); Author, law
related books published by Prentice Hall, Nash-Dutton, Bantam,Wollstonecraft, Dell, Manor
(1970-1980); Los Angeles District Attorney's Office (1982-1995).
1. ScoTr TUROW, PRESUMED INNOCENT (1978).
2. Carr v. State, 4 So. 2d 887 (Miss. 1941).
3. Id. at 888-889.

16
 Demystifying The Presumption Of Innocence 17

innocence, and to examine the contemporary debate over its proper

application in criminal law and its relevance to society at large.

A. History Of The Presumption Of Innocence

The starting point for historical review of the presumption of in-

nocence is found in the otherwise obscure case of Coffin v. United
States. 4 Regarded almost universally as a classic pronouncement,
Coffin contains perhaps the most cited single statement the subject
has ever received: "The principle that there is a presumption of inno-
cence in favor of the accused is the undoubted law, axiomatic and ele-
mentary, and its enforcement lies at the foundation of the
administration of our criminal law." 5
Greenleaf traces the conception of the presumption of innocence
to Deuteronomy, and notes that it was substantially embodied in the
laws of Sparta and Athens. 6 There is no question that the Roman law
was imbued with the results of this maxim of criminal administration,
as the following extract from the Roman code shows: "'Let all accus-
ers understand that they are not to profer charges unless they can be
proven by proper witnesses or by conclusive documents, or by circum-
stantial evidence which amounts to indubitable proof and is clearer
than day."' I Associate Justice Edward White, speaking for the Court
in Coffin, marshals together a far-ranging selection of authorities from
antiquity to demonstrate that "there can be no question that the Ro-
man law was pervaded with this maxim of criminal administration
. ...." This rule found in the Roman law was, along with many other
fundamental and humane maxims of that system, preserved for man-
kind by the canon law. 9
Exactly when this presumption was adopted as a part of the Eng-
lish common law is in doubt. "[N]o express mention of the presump-
tion of innocence can be found in the books of the common law
earlier than" the nineteenth century. 10 According to James Thayer,
this phrase, taken over from continental usage, was merely a general

4. Coffin v. United States, 156 U.S. 432 (1895).

5. Id. at 453.
6. Id. at 454 (referring to GREENLEAF ON EVIDENCE, pt. 5, § 29 note (1834)).
7. Id. (quoting Code, L. 4, tit. 20, 1, 1. 25).
8. Id.
9. See id. at 455 (referring to the canon doctrine, "Decretum Gratiani de Presumptionibus,
L. 2, T. 23, c. 14, A.D. 1198").
10. Id.
18 Glendale Law Review

rule that in the absence of contrary facts it was to be assumed that any
person's conduct upon a given occasion was lawful. 11
Despite the lack of exact literary reference to the presumption,
there is no doubt that the practice which flowed from it has existed in
the common law from the earliest time. Lord Hale stated:
"In some cases presumptive evidence goes far to prove a per-
son guilty, though there be no express proof of the fact to be
committed by him, but then it must be very warily pressed,
for it is better five guilty persons should escape unpunished
than one innocent person should die." 12
"Blackstone maintains that 'the law holds that it is better that ten
guilty persons escape than that one innocent should suffer."' 13
Among the earliest common law landmark cases showing how
fully the presumption of innocence had evolved as a principle was the
Trial Of Andrew McKinley's Case, 14 wherein Lord Gillies declared:
"I am sorry to see, in this information, that the public prose-
cutor treats this too lightly. He seems to think that the law
entertains no such presumption of innocence. I cannot listen
to this. I conceive that this presumption is to be found in
every code of law which has reason and religion and human-
ity for a foundation." 15
Greenleaf, in his famous treatise On Evidence, stated the
doctrine:
"As men do not generally violate the penal code, the law
presumes every man innocent; but some men do transgress
it, and therefore evidence is received to repel this presump-
tion. This legal presumption of innocence is to be regarded
by the jury, in every case, as matter of evidence, to the bene-
fit of which the party is entitled." 16
The legal scholar Wills said:
"In the investigation and estimate of criminatory evidence,
there is an antecedent prima facie presumption in favor of
the innocence of the party accused, grounded in reason and
justice not less than in humanity, and recognized in the judi-
cial practice of all civilized nations, which presumption must

11. JAMES BRADLEY THAYER, PRELIMINARY TREATISE ON EVIDENCE, ch. 9, Appendix B

(1898).
12. 156 U.S. at 456 (quoting 2 Hale P.C. 290 (1678)).
13. Id. (quoting 2 Bl. Comm. c. 27, margin page 358 (1765)).
14. Trial of Andrew McKinley's Case, 33 State Tr. 275 (1817).
15. 156 U.S. at 456 (quoting from the Trial of Andrew McKinley's Case, 33 State Tr. 275,
506 (1817)).
16. Id. at 459 (quoting GREENLEAF ON EVIDENCE, part 1, §34).
 Demystifying The Presumption Of Innocence 19

prevail until it be destroyed by such an overpowering

amount of legal evidence of guilt as is calculated to produce
the opposite belief." 17
The same view was taken in the Criminal Law Magazine for Janu-
ary, 1889, which reads: "'This presumption is in the nature of evi-
dence in his favor [i.e. in favor of the accused], and a knowledge of it
should be communicated to the jury."' 18
In the United States, early common law cases enshrined the pre-
sumption of innocence, which crossed the ocean with English jurists
and scholars. In New England, the most famous common law case
heralding the presumption of innocence was Commonwealth v. Web-
ster, 19 which also offered a definition of reasonable doubt, subse-
quently adopted by California. 20 Many other states have adopted
essentially the same or a slight variation of the same language. 21In
1872, the California legislature codified the presumption of innocence.
22

Subsequent California cases amplified the presumption, filling in

the semantic interstices by making reference to earlier common law
cases and by interpreting legislative intent. In 1881, the California
Supreme Court held that it is a cardinal rule in criminal cases that the
burden of proof rests on the prosecution. 23 In 1882, elaborating on
the application of the presumption, the California Supreme Court
ruled: "The presumption of innocence does not cease upon the sub-
mission of the cause to the jury, but operates in favor of the defend-
ant, not only during the taking of the testimony, but during the

17. Id.
18. Id.
19. Commonwealth v. Webster, 59 Mass. 295, 320 (1850).
20. See CALJIC 2.90.
21. See, e.g., Biggs v. State, 411 So.2d 813 (Ala. 1981); Monk v. State, 197 S.W. 580 (Ark.
1917); State v. Brown, 505 A.2d 690 (Conn. 1986); Blair v. State, 347 S.E.2d 337 (Ga. 1986); State
v. Farnsworth, 10 P.2d 295 (Idaho 1932); People v. Wallace, 495 N.E.2d 665 (Ill. 1986); Vaughan
v. State, 446 N.E.2d 1 (Ind. 1983); State v. Reilly, 116 P. 481 (Kan. 1911); Johnson v. Common-
wealth, 181 S.W.2d 262 (Ky. 1944); State v. Bennett, 454 So.2d 1165 (La. 1984); Bowman v.
Little, 61 A. 1084, 1088 (Md. 1905); Commonwealth v. Drayton, 434 N.E.2d 997 (Mass. 1982);
State v. Harrison, 57 P. 647, 658 (Mont. 1899); State v. Kelly, 15 N.W.2d 554, 563 (Minn. 1944);
Carr v. State, 4 So. 2d 887 (Miss. 1941); State v. Gee Jon, 211 P. 676 (Nev. 1922); Dukette v.
Perrin, 564 F. Supp. 1530 (D.N.H. 1983); State v. Ingenito, 432 A.2d 912 (N.J. 1982); People v.
Wong, 81 N.Y.2d 600 (1993); Flohr v. Territory, 78 P. 565, 574 (Okla. 1904); Com. v. McSorley,
150 A.2d 570, 575 (Penn. 1959); State v. Holmes, 338 N.W.2d 104 (S.D. 1983); U.S. v. Hill, 738
F.2d 152 (6th Cir. 1984); Rickman v. State, 667 S.W.2d 271 (Tex. 1984); Dodson v. U.S., 23 F.2d
401, 403 (4th Cir. 1928); Matter of Lile, 668 P.2d 581 (Wash. 1983).
22. See CAL. PENAL CODE § 1096 (West 1996) (historical note).
23. People v. Marshall, 59 Cal. 386, 389 (1881).
20 Glendale Law Review

deliberations of the jury, until they have arrived at a verdict." 24 In

1897, further reinforcing the widening ambit of the presumption of
innocence, and upholding the validity of a new jury instruction, the
California Supreme Court held that the law required jurors to "'ex-
amine the evidence [during deliberations] by the light of that
presumption.' "25
In 1916, the California Supreme Court invoked the language of
Commonwealth v. Webster to spell out the criteria for reasonable
doubt, stating:
"It is not mere possible doubt; because everything relating to
human affairs, and depending on moral evidence, is open to
some possible or imaginable doubt. It is that state of the
case, which after the entire comparison and consideration of
all the evidence, leaves the minds of jurors in that condition
that they cannot say they feel an abiding conviction, to a
moral certainty; of the truth of the charge. .. . The evidence
must establish the truth to a reasonable and moral certainty;
a certainty that convinces and directs the understanding, and
satisfies the reason and judgment, of those who are bound to
act conscientiously upon it." 26
As the California courts continued to elucidate its application, it
was held that the presumption applies to each and every material part
of the case concerning the defendant's guilt, including both facts con-
stituting the offense and facts identifying the defendant as the perpe-
trator. 27 The presumption also applies in the determination of the
degree of the crime charged against or committed by the defendant. 2
Under the aegis of the presumption of innocence, in a case where the
People failed to allege that the accused was over 21 years-old, the Cal-
ifornia Supreme Court held that it was the prosecution's burden to
establish the defendant's majority. 29
Today, in California, the fundamental presumption of innocence,
and the prosecution's burden of proving the defendant guilty beyond
a reasonable doubt, are found in Penal Code section 1096: "A defend-
ant in a criminal action is presumed to be innocent until the contrary
is proved, and in case of a reasonable doubt whether his guilt is satis-

24. People v. McNamara, 29 P. 953, 954 (1892).

25. People v. Winthrop, 50 P. 390, 393 (1897).
26. People v. Miller, 154 P. 468, 469 (1916) (quoting Commonwealth v. Webster, 59 Mass. at
320).
27. People v. Wells, 202 P.2d 53, 63 (1949).
28. People v. Carnine, 260 P.2d 16, 20 (1953).
29. People v. Montalvo, 482 P.2d 205, 206 (1971).
 Demystifying The Presumption Of Innocence 21

factorily shown, he is entitled to an acquittal." so Commenting on the

language of Penal Code section 1096, one court declared:
It has with near, if not complete, universality been accepted
as the best definition of the concept of proof beyond a rea-
sonable doubt. Well intentioned efforts to "clarify" and "ex-
plain" these criteria have had the result of creating confusion
and uncertainty, and have repeatedly been struck down by
the courts of review of this state. 31
Currently, the presumption of innocence remains expressly incor-
porated in California jury instructions. 32

B. Scope Of Presumption As A Rule Of Evidence

A person charged with a crime is presumed to be innocent until
the contrary is established. The United States Supreme Court makes
it clear that, although the presumption is a "maxim which ought to be
inscribed in indelible characters in the heart of every judge and jury-
man," the rule is clearly one of evidence. 3 The presumption of inno-
cence is not a presumption of law, but is merely evidentiary. The
existence and controlling effect of Penal Code Section 1096 is ac-
knowledged in California Evidence Code section 501: "Insofar as any
statute, except Section 522, assigns the burden of proof in a criminal
action, such statute is subject to Penal Code section 1096." 34
The presumption is rebuttable and may be overcome by contro-
verting evidence. Its effect is merely to place on the state the burden
of proving the accused guilty beyond a reasonable doubt. It does not
destroy the effect of evidence that is in itself satisfactory. Under the
presumption, the accused is entitled to an acquittal if there is a reason-
able doubt whether his guilt is satisfactorily shown. 1 This is consis-
tent with the view that a presumption of innocence does not require a
finding of actual innocence after an acquittal. 36
In the case of Reed v. New York, the New York Court of Appeals
made clear that a reversal of a conviction would not support a claim
under the state's Unjust Conviction and Imprisonment Act, where the
presumption of innocence provided the support for the underlying

30. CAL. PENAL CODE § 1096 (West 1996) (as amended 1927).
31. People v. Garcia, 54 Cal. App. 3d 61, 63 (1975).
32. See CALJIC 2.90.
33. Coffin v. United States, 156 U.S. at 456.
34. CAL. EVID. CODE § 501 (West 1996).
35. People v. Hill, 175 P.2d 45, 48 (1946).
36. Reed v. New York, 574 N.E.2d 433 (1991).
22 Glendale Law Review

civil claim for damages. 3 The law does not require demonstration or
that degree of proof which, excluding all possibility of error, produces
absolute certainty, for such degree of proof is rarely possible. As the
California Court of Appeal stated: "Only that degree of proof is nec-
essary which convinces the mind and directs and satisfies the con-
science of those who are bound to act conscientiously upon it." 3
A defendant is presumed innocent and he is entitled to appear in
court with the dignity and the self-respect of a free and innocent man.
39 To forbid him to wear his own clothing and to require him to ap-
pear in convict's attire-a continuing visual communication to the
jury-is to deny him that right. 40 The presumption attends an ac-
cused from the beginning of the trial to the end, and does not cease on
submission of the case to the jury. It operates not only during the
taking of testimony, but also during the deliberations of the jury and
until a verdict is reached. 41
Placing limits on its scope, Justice Rehnquist's majority opinion in
Bell v. Wolfish 42 rejected claims that the presumption of innocence
compelled the detainee's rights to be free of specific regulatory condi-
tions, making clear that the legal effects of the presumption of inno-
cence are properly applied only at trial. 43 This view affords the
presumption the traditional evidentiary character associated with all
other presumptions, but rejects application to pretrial practices and
even to the public at large. If the presumption of innocence has no
application regarding the rights of a pretrial detainee, then it follows
that a defendant released upon his own recognizance or upon bail
should not have any greater right to be presumed innocent as he
awaits a trial date.
The Supreme Court's upholding of the legality of preventive de-
tention confirms that the proper use of the presumption of innocence
is limited to trial. 4 In Schall v. Martin, the district court considered
New York's statute allowing for the pretrial detention of youths likely
to commit another criminal act. 4 In upholding the challenge, the
district court relied on the presumption of innocence to find a due

37. Id. at 433-435.

38. People v. Bender, 132 Cal. App. 753, 761 (1933).
39. Estelle v. Williams, 425 U.S. 501, 518 (1976).
40. Id. at 517-518.
41. People v. McNamara, 29 P. at 954.
42. Bell v. Wolfish, 441 U.S. 520 (1979).
43. Id. at 540.
44. Schall v. Martin, 467 U.S. 253 (1984).
45. Id. at 254.
 Demystifying The Presumption Of Innocence 23

process violation. 46 The Second Circuit, in affirming, echoed the con-

cerns of the district court regarding the presumption of innocence.
On appeal, the Supreme Court reversed the lower court's holding that
the statute was unconstitutional and validated New York's statutory
scheme for preventive detention. 48

C. Constitutionality
One place where the presumption of innocence is not found, in
any form, is the United States Constitution. The Supreme Court has
stated that "the failure to give a requested instruction on the presump-
tion of innocence does not in and of itself violate the Constitution....
[S]uch a failure must be evaluated in light of the totality of the circum-
stances." 49 However, in Estelle v. Williams, the Supreme Court rec-
ognized that "[t]he presumption of innocence, although not
articulated in the Constitution, is a basic component of a fair trial
under our system of criminal justice." 5o
Of ancient origin, pre-dating even the common law, the presump-
tion of innocence is inextricably embedded in the foundation of our
society's laws and values. "Nothing in this section shall be construed
as modifying or limiting the presumption of innocence." 1 With this
caveat, Congress patently sought to dispel fears that the Bail Reform
Act of 1984 represented a major departure from traditional American
jurisprudence. 52 As observed by Justice Potter Stewart in 1979, "[njo
principle is more firmly established in our system of criminal justice
than the presumption of innocence that is accorded to the defendant
in every criminal trial." 65

D. Strict Versus Expansive Construction Of Presumption

Adherents of a strict view of evidentiary presumptions perceive
the phrase "presumption of innocence" as fallacious. The drafters of
section 1.12(1) of the Model Penal Code, in apparent response to this
perceived defect, have accordingly substituted "assumption" for "pre-
sumption." 54 Modern treatises on evidence and criminal procedure
46. Id.
47. Id. at 262-263.
48. Id. at 281.
49. Kentucky v. Whorton, 441 U.S. 786, 789 (1979).
50. 425 U.S. at 503.
51. 18 U.S.C. § 3142(j) (1996).
52. 18 U.S.C.§§ 3141-3150 (1984).
53. Kentucky v. Whorton, 441 U.S. at 790 (Stewart, J., dissenting).
54. MODEL PENAL CODE § 1.12(1) (1996).
24 Glendale Law Review

contain, in myriad expressions, a corrected and retrenched definition.

According to Wigmore, for example, the presumption of innocence "is
in truth merely another form of expression for a part of the accepted
rule for the burden of proof in criminal cases . . . ." 1s In the words of
Chief Justice Rehnquist, "[t]he presumption of innocence is a doctrine
that allocates the burden of proof in criminal trials; it also may serve
as an admonishment to the jury to judge an accused's guilt or inno-
cence solely on the evidence adduced at trial and not on the basis of
suspicions that may arise from the fact of his arrest, indictment, or
custody, or from other matters not introduced as proof at trial." 56
This formulation by Chief Justice Rehnquist, appearing in a 1979
case which dealt with the rights of pretrial detainees in a federal custo-
dial facility, is a narrow one. Although the Chief Justice concedes that
it plays an important role in our criminal justice system, he argues:
"But it [the presumption of innocence] has no application to a deter-
mination of the rights of a pretrial detainee during confinement
before his trial has even begun." 5
The position of Chief Justice Rehnquist, insisting on restricting
the presumption of innocence to criminal trials only, is strikingly in-
congruous with the words of former Chief Justice Vinson in an earlier
case: "Unless this right to bail before trial is preserved, the presump-
tion of innocence, secured only after centuries of struggle, would lose
its meaning." 51

E. Contemporary Criticisms Of Presumption

Has society ever been harmed by the presumption of innocence?
Unquestionably, at times, it has, and Associate Justice Thurgood Mar-
shall conceded as much, stating: "Honoring the presumption of inno-
cence is often difficult; sometimes we must pay substantial social costs
as a result of our commitment to the values we espouse." 59 Un-
doutedly, on occasions, where the prosecution is unable to muster evi-
dence sufficient to overcome the presumption, there will be an
acquittal, even though the defendant is actually guilty.
The 1987 Supreme Court decision in United States v. Salerno,
which upheld pretrial detention, is viewed by some legal scholars as

55. JOHN HENRY WIGMORE, EVIDENCE AND TRIALS AND COMMON LAW, § 2511 (3d ed.
1941).
56. Bell v. Wolfish, 441 U.S. at 533.
57. Id.
58. Stack v. Boyle, 342 U.S. 1, 4 (1951).
59. United States v. Salerno, 481 U.S. 739, 767 (1987) (Marshall, J., dissenting).
 Demystifying The Presumption Of Innocence 25

the inevitable result of decades of rethinking and curtailment of the

presumption of innocence. 60 In recent years legal scholars and law-
yers alike have challenged the wisdom and necessity of retaining the
presumption of innocence.
First, in the eyes of its critics, the presumption of innocence is a
misnomer because it is not a true evidentiary presumption. A fre-
quently cited incisive expression of those strictures may be found in
Carrv. State,61 in which the court commented, "the so-called presump-
tion of innocence is not, strictly speaking, a presumption in the sense
of an inference deduced from a given premise." 62 More accurately,
the court stated that it is "an assumption which has for its purpose the
placing of the burden of proof upon anyone who asserts any deviation
from the socially desirable ideal of good moral conduct." 63 The Carr
court recognized that if innocence was in fact presumptive evidence
throughout a trial, no conviction was possible.
Second, the presumption of innocence is alleged to have no basis
in fact. "It is not even a presumption in the popular sense of a thing
which is more likely to be true than not, for statistically more people
who are charged with crimes are convicted as guilty than are acquitted
as innocent." 64 Citing police and FBI statistics, showing dramatically
high rates of conviction in criminal trials, the distinguished legal
scholar Charles McCormick declared: "As applied to the accused, any
assumption, or 'presumption' of innocence, in the popular sense of an
inference based on probability, is absurd. The probability is the re-
verse." 65
Another reason proffered for dismantling the presumption of in-
nocence is the standard of proof beyond a reasonable doubt, as man-
dated by In re Winship 66 and its progeny, which critics claim makes
the presumption of innocence superfluous. In the words of Professor
William Fox, "a jury instruction on the presumption of innocence adds
nothing.... It is unnecessarily duplicative if some instruction is given
on the reasonable doubt standard." 67

60. 481 U.S. 739.

61. 4 So. 2d at 887.
62. Id. at 888.
63. Id.
64. Id.
65. CHARLES T. MCCORMICK, ON EVIDENCE, § 309, p. 647 (1954).
66. In re Winship, 397 U.S. 358 (1970).
67. William Fox, The Presumption of Innocence as ConstitutionalDoctrine, 28 CATH. U. L.
REV. 253, 266 (1979).
26 Glendale Law Review

Legal writer Peter Reinharz contends the presumption does not

preclude opinions voiced by the media and the public on an accused's
guilt before trial. 68 After delineating a comprehensive historical anal-
ysis of Supreme Court decisions, he finds:
Although membership in the Court had remained constant,
it's opinion about the purpose and use of the presumption of
innocence had been modified. In any event, by linking the
presumption of innocence with proof beyond a reasonable
doubt, the Supreme Court limited the use of the presump-
tion to the trial phase of criminal proceedings. 69
Reinharz goes on to conclude:
The public, the media, and the judicial system need to under-
stand the presumption of innocence for what it is and, more
importantly, for what it is not. It is not a global umbrella
covering a defendant from the time of arrest onward. . . .
Instead the presumption must be deemed a trial tool to en-
sure that the evidence convicting the defendant is beyond a
reasonable doubt. . . . The presumption of innocence must
not become an assumption of ignorance. *
Countervailing critics of the presumption of innocence and a
voice advocating greater application and extension has come from the
liberal wing of academia. Flawed though it may be, they assert, the
presumption of innocence has become so woven into the fabric of our
law that it is wiser to let it remain, as it works well enough in practice.
With its roots in Deuteronomy, the presumption of innocence has sur-
vived thousands of years of history and over two centuries of Ameri-
can jurisprudence. Efforts from any quarter to alter or tear asunder
or restrict its application should be resolutely opposed. The inception
of the standard of proof beyond a reasonable doubt neither eradicated
nor diminished the necessity for it. Harvard Law Professor Lawrence
Tribe views the presumption of innocence as a sacred right because it
"represents a commitment to the proposition that a man who stands
accused of crime is no less entitled than his accuser to freedom and
respect as an innocent member of the community." 71

68. Peter Reinharz, Innocence Presumed: Analyzing America's Favorite Presumption,

NEWYORK LAW JOURNAL, December 20, 1994, at 1-2.
69. Id.
70. Id.
71. Lawrence Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitch-
ell, 56 VA. L. REV. 371, 404 (1970).