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N Guilty Men: a meditation on the presumption of innocence

By skepticlawyer

First, the societies that did not have it:

1. Ancient Israel:

And Abraham drew near and said, Wilt thou also destroy the righteous with the wicked? Peradventure there be fifty righteous within the city: wilt thou also destroy and not spare the place for the fifty righteous that are therein? That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right? And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.

And Abraham answered and said, Behold now, I have taken upon me to speak unto the Lord, which am but dust and ashes: Peradventure there shall lack five of the fifty righteous: wilt thou destroy all the city for lack of five? And he said, If I find there forty and five, I will not destroy it. And he spake unto him yet again, and said, Peradventure there shall be forty found there. And he said, I will not do it for forty’s sake. And he said unto him, Oh let not the Lord be angry, and I will speak: Peradventure there shall thirty be found there. And he said, I will not do it, if I find thirty there. And he said, Behold now, I have taken upon me to speak unto the Lord: Peradventure there shall be twenty found there. And he said, I will not destroy it for twenty’s sake.

And he said, Oh let not the Lord be angry, and I will speak yet but this once: Peradventure ten shall be found there. And he said, I will not destroy it for ten’s sake.

Genesis 18:23-32

2. Classical Athens:

Men of Athens, do not interrupt, but hear me; there was an agreement between us that you should hear me out. And I think that what I am going to say will do you good: for I have something more to say, at which you may be inclined to cry out; but I beg that you will not do this. I would have you know that, if you kill such a one as I am, you will injure yourselves more than you will injure me. Meletus and Anytus will not injure me: they cannot; for it is not in the nature of things that a bad man should injure a better than himself. I do not deny that he may, perhaps, kill him, or drive him into exile, or deprive him of civil rights; and he may imagine, and others may imagine, that he is doing him a great injury: but in that I do not agree with him; for the evil of doing as Anytus is doing – of unjustly taking away another man’s life – is greater far. And now, Athenians, I am not going to argue for my own sake, as you may think, but for yours, that you may not sin against the God, or lightly reject his boon by condemning me.

– Socrates, Apologia, 5th Century BC

3. Post-classical Athens, as Aristotle goes grapple, grapple and does not get it quite right:

It is a serious matter to decide that a slave is free, yet it is much more serious to convict a freeman of being a slave [4th Century BC].

Next, the societies that did have it:

1. Republican Rome:

I would rather ten guilty persons should escape, than one innocent should suffer.

– Cicero (attributed in Sallust, but he may not have said it first); 1st Century BC

2. Imperial Rome:

A person ought not to be condemned on suspicion; for it is preferable that the crime of a guilty man should go unpunished than an innocent man be condemned.

– Trajan, 2nd Century AD

3. Medieval Judaism:

The Exalted One has shut this door against the use of presumptive evidence, for it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way.

– Maimonides, 12th Century

4. Anglo-Saxon England:

When the jurors were in doubt about their verdict, for in cases of doubt one should rather save than condemn; it is better to accuse no innocent man, nor conceal any guilty one.

– King Alfred, 9th Century

5. Medieval England:

Indeed I would rather wish twenty evil doers to escape death through pity, than one man to be unjustly condemned.

Chief Justice John Fortescue, 1471

6. Enlightenment England:

Better that ten guilty persons escape than that one innocent suffer.

Blackstone, 1765

A false impression

The above selection of quotations is apt to give one a false impression, one I hope to correct. The correction is, however, indicative of real human progress. We should be proud of it.

The false impression is conveyed in all the Roman and English quotations: they make it look as though we have always had the presumption of innocence, and we have often set N at about 10. We will let 10 guilty men go free rather than convict a single innocent. I could have found many more English and Roman lawyers stating something similar: Matthew Hale and Ulpian, say. I could also have crossed the Atlantic to the United States, citing a veritable galaxy of American jurists.

However, the English and the Romans are outnumbered by societies — even very great ones — that behave as the ancient Israelites and Athenians did. For most of human history, we human primates have believed that where there is smoke there is fire. When we have accused people of wrongdoing, we have considered our accusations just because the accused ‘have it coming to them’. Ulpian — the first lawyer to think deeply and critically about the presumption of innocence — realised that the presumption of innocence represents a decisive rejection of the ‘just world’ hypothesis, and that this rejection takes real intellectual effort.

The just world

This is because people are uncomfortable believing that suffering is often random, that sometimes bad things happen for no reason at all. Instead, we prefer to believe that people must have done something to deserve what they get. This is obviously a reassuring and comforting belief, which explains its wide appeal. (‘If bad things only happen to those who deserve them, and I’m a good person, then I can be sure that nothing bad will happen to me‘, Ulpian notes at one point)*. For us moderns, belief in the just world can be thought of as a failure to apply the null hypothesis in the moral domain: rejecting the explanation of chance, we prefer to believe that everything that happens is deserved. As should be obvious, the just world hypothesis manifests as the doctrine of karma in a number of religious traditions.

*It is perhaps worth noting that Ulpian, the Prefect of the Praetorian Guard, was later fragged by his own men, in part because he restrained their use of torture.

Confining N

It was Robert Nozick – in Anarchy, State and Utopia – who observed that any criminal justice system unwilling to confine N would be one that had no system of punishment at all. This recognises a tradeoff, a balancing act, and the impossibility of perfection. It recognises, too, that every time a guilty person is acquitted the law, in a sense, has failed the community it exists to serve. It also explains why N tends to float up and down throughout English and Roman history. 10 is the most common figure, but the Romans often expressed themselves, like Trajan, in terms of a 1-for-1 trade. Matthew Hale spoke of 5-for-1, and in a 1951 judgment – R v Patel [1951] All E.R. 29 — the Court of Criminal Appeal noted the difficulty of ‘trying to steer between the Scylla of releasing to the world unpunished an obviously guilty man and the Charybdis of upholding the conviction of a possibly innocent one.’

Confining N is therefore difficult. Like Nozick, Jeremy Bentham worried that a justice system that failed to punish the genuinely guilty would fail as surely as a justice system that routinely punished the genuinely innocent:

We must be on guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence.  Public applause has been, so to speak, set up to auction.  At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand.  All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless evidence amount to mathematical or absolute certainty.  According to this maxim, nobody ought to be punished, lest an innocent man be punished.

When discussing N, then, it is wise to keep both Bentham and Ulpian in mind, and also to remember that our justice system can be polluted by awful attitudes dragged across from other belief systems. One of the reasons rape is so fraught is not just because, as Ulpian observed, it involves the criminal expression of something that would otherwise be both a perfectly legal and enjoyable act. It is also fraught because the civilisation that came after Ulpian’s decided that there was something inherently wrong with women: they entered the justice system disabled by something that was in them, and that they could not change. This would have flummoxed Ulpian, and reflects badly on we who came after. The doctrine of original sin is, after all, a particularly nasty manifestation of the just world hypothesis.

Taking care

We must take care, then, not to make decisions in advance stipulating that people have something about them that disables them before they enter the justice system. For the longest time, the people entering the portals of justice with a presumption operating against their character were all women. As we became monotheists, we added gays, Jews, and black people to the there’s something funny about you list. We then spent the best part of 200 years removing all those groups from the same list. This removal is far from perfect, of course, although it is well progressed in the developed world.

However, as part of this process, we must also take care not to add new people and new characteristics to that list in lieu of the old ones. That is, I believe, what happened in the rush to judgment in the Duke Lacrosse case: well, they had it coming, didn’t they, white and privileged…

100,000 criminals

What if I told you that the bulk of crime in Britain was committed by 100,000 known and named individuals with a list of previous convictions that makes them ridiculously easy to trace? And what if I added that we could arrest the lot of them, lock them up without charge, and reduce the country’s crime rate almost to zero overnight?

Tempted?

I hope you’re not tempted, but it is true that we know who most of the future criminals are, where they live, what race they are, and lots of other things about them. And it is also true if we decided to revert to the world of Ancient Israel or Classical Athens — just lock ‘em up, where there’s smoke there’s fire, of course they’ll do it again – we would indeed reduce our crime rate to trivial levels (it has in fact been falling for a long time).

However, there comes a point where reducing crime beyond a certain level enlivens the law of diminishing returns: not only does it become prohibitively expensive, but fundamental aspects of our society and justice system have to be bent out of shape in order to achieve it. I seldom recommend the use of popular culture to teach a legal lesson, but maybe it is worth watching this film again:

We do not live in a just world. We ought not to ascribe characteristics to people before applying justice to them (otherwise it will soon cease to be justice). And we should be proud of the fact that we have had the wit to adopt — for the most part — a legal minority position that is striking in its generosity of spirit. Because I don’t buy the just world hypothesis, I don’t think that choice was inevitable. We so easily could have gone the other way.

18 Comments

  1. Dave Bath
    Posted June 1, 2013 at 9:52 am | Permalink

    There would have to be a modifier of N depending on the consequences of a conviction. So, where there is capital punishment, and no hope of “ooops, sorry, what would it take to smooth things over”, N would surely be higher …

    But … if it is a smack on the wrist (and a $10K fine for some is a smack on the wrist … while a $500 fine could knock others for six, so the punishment is relative), then N can be much lower.

    So …. how about some kind of factor?
    N when capital punishment? That’s a big call, but what when it is money?

    The punishment proportional to a day’s income (running a red light approximately a day’s minimum wage) perhaps …

    Anyone feel like saying how N varies with the time it takes to pay the fine?

    Or …. how N varies with the length of imprisonment?

    I doubt either would be linear.

  2. Posted June 1, 2013 at 10:28 am | Permalink

    Abraham would have made a pretty decent computer scientist.

  3. Gavin R Putland
    Posted June 1, 2013 at 10:48 am | Permalink

    I have argued elsewhere, and in a more limited context, that the presumption of innocence follows from the separation of powers and the rule of law.

    Under the separation of powers, the power to convict is a judicial power. Without the presumption of innocence, that power is effectively taken from the duly appointed courts and given to those who are willing to make accusations.

    The rule of law implies inter alia that we are under a government of laws, not a government of men. Without the presumption of innocence, we are under a government of men, namely those who are willing to make accusations.

    In the same place I have argued that the mere existence of a constitution, or even of a court, recognizes the rule of law, which in turn implies the separation of powers.

  4. Posted June 1, 2013 at 10:48 am | Permalink

    The smallest tweak which achieves a “lock ‘em up forever” end condition would be a general sentencing law that sentences must escalate upon any repeat offence. An Xy strikes rule, so to speak.

    I believe the penal code in Judge Dredd had a catchall clause of that sort.

  5. Posted June 1, 2013 at 10:52 am | Permalink

    Dave — criminal law already has some gradient for how it handles crimes of different severity. Some “crimes” can be decided and punished by police directly (with optional recourse to the courts) — eg, speeding tickets or on-the-spot fines for various minor offences (eg. smoking weed used to be an on-the-spot fine in the NT).

    Then you move to offences which can be heard, decided and punished by a magistrate. These move pretty quickly compared to a jury trial.

    Finally the full mechanism of jury trial for the heavy duty stuff like murder, rape, serious assaults and so on.

  6. Posted June 1, 2013 at 11:03 am | Permalink

    Jacques – the changing N based on the method of deciding guilt or innocence is a valid point, although it does not operate within, say, non-violent small time conmen and major crimes including murder.

  7. Posted June 1, 2013 at 11:48 am | Permalink

    Dave, so are you suggesting that if we’re only sort of sure someone’s done something bad, we’ should give them a lesser punishment than if we were really sure, rather than letting them off completely?

  8. Dave Bath
    Posted June 1, 2013 at 11:59 am | Permalink

    desipis@7 – No, I am not saying that probability of guilt should affect the sentence, except perhaps when the punishment is severe (especially capital punishment, when there is no hope of compensation should the state realize error, when doubt would demand imprisonment, or the wonderful scottish “not ptoven”).

    What I am saying is that (apart from fines being proportional to income stream so the pain of the fine is the same for the same level of guilt, the pain, not the absolute value of the fine, constant for a given offense … akin to the finnish system which bases road fines on income) the acceptability of a given value of N depends on the significance of the punishment.

    So, for life sentences, N would be high, while for trivial fines, N would be low. Even with imprisonment, what would N be for 3 months, 1 year, 2 years, 10 years, 15 years?

    Even one year can upend an entire life.

    If 1 year of prison is N=10, is 3 months N=8? 10 years N=15? Is the curve sigmoidal? Linear? Increasing in gradient with the penalty or decreasing? When would N=1 or even less than 1?

  9. Posted June 1, 2013 at 12:53 pm | Permalink

    1 year of prison is N=10, is 3 months N=8

    So let’s just take these numbers. If we have a crime that would normally be sentenced to 1 year, and have an accused that we’re sure is guilty to N=8, he gets off? A person that accused of a crime worthy of a sentence of 3 months, that we’re sure is guilty to N=8 gets the 3 months? So same confidence of guilt + greater crime = less/no punishment. Does that make sense?

  10. Dave Bath
    Posted June 1, 2013 at 2:23 pm | Permalink

    No, what I am saying is to be thought of before any particular trial – just thinking about the system, designing a system so that the greater the punishment, the better the procedures, and the more we are prepared to let N guilty people go unpunished than punish one innocent.

    Capital punishment is a special case, but as long as there isn’t mandatory sentences of death, the sentencing judge can say “life imprisonment” as a “just in case”.

    On the other hand, some people might think the unpunished guilty to punished innocent ratio should be constant regardless of the level of punishment. I’m interested in what others think – because it’s a toughie!

  11. kvd
    Posted June 1, 2013 at 3:28 pm | Permalink

    “Capital punishment is a special case”

    Not.

    You are confusing penalty with proof, which is what I thought SL was thinking about? But maybe I’m wrong. When you start talking about an acceptable ratio you are moving from the messily, merely human to administrative efficiency – and all the while assuming you will never be subject to same.

    Into this English logic, however, an infusion of justice enters, not so apparent in other races, – a belief in the existence of two sides, and the resolution to see fair play. There is on every question, an appeal from the assertion of the parties, to the proof of what is asserted. They are impious in their scepticism of a theory, but kiss the dust before a fact.

    Sorry to be ‘racist’; partial blame rests with Ralph Waldo Emerson.

  12. Posted June 1, 2013 at 4:45 pm | Permalink

    Thank you, kvd. Yes, this thread got rather derailed with administrivia, probably because I wrote it and then went to bed. Part of the point of the presumption of innocence is meant to be its uniformity: any sorting is done within the court hierarchy itself, as Jacques points out. And we should all be on the lookout for reverse onus provisions, even minor ones (speeding and parking tickets).

    I probably should have included that Emerson quote, too. There are a couple from the various Holmeses that are also rather good.

  13. TerjeP
    Posted June 3, 2013 at 5:48 am | Permalink

    David – letting go ten murders to save one innocent is possibly worse than letting go ten jaywalkers. In fact letting go ten murders may well cost the life of many innocent ones.

  14. TerjeP
    Posted June 3, 2013 at 5:50 am | Permalink

    War seems to be an exception. In war we routinely accept the death of many innocents to get one guilty. We call this collateral damage.

  15. TerjeP
    Posted June 3, 2013 at 6:04 am | Permalink

    In handing out verdicts courts are cautious about depriving the innocent of their liberty. We demand that juries decide unanimously. Yet when parliaments make laws we don’t seem to have anywhere near the same caution. We too easily criminalise innocent behaviour. Parliaments so easily and readily makes innocent things like owning a semi automatic rifle or a few grams of heroin cause for the deprivation of liberty. Whilst courts may be cautions in deciding you have breached parliaments law there is no accounting for the fact that the law is an ass.

    I often wonder what the law would be like if parliaments could repeal any law with 51% of parliamentarians in support but could not enact any law unless 75% of them agreed it was a good law.

  16. Nigel Davies
    Posted June 4, 2013 at 9:52 am | Permalink

    The problem with all these ‘N’s’ is that in the Anglosphere we make no attempt at any ‘find the truth’ legal system (even one as flawed as a variation of inquisitorial).

    Instead we have a ‘trial by combat’ system, where the person with the most expensive legal team (or with state provided legal resources) has an incalculable advantage over those without such resources.

    So there is no level playing field anyway. Your ‘N’ is different depending on whether you are rich, or poor, enough to have advantages over those who can’t afford to play.

    I would be interested to hear any statistics on how many criminal cases you think are now decided on the ‘can’t afford to fight this’ principle that now underlines the ‘go away’ money of so many civil cases?

    The fundamental point being that your priveledge within the system is now less biased by your class or race or sex or religion than by your income.

    (And can we please stop pretending that the ‘legal’ system is in any way a ‘justice’ system?)

  17. Donald
    Posted June 4, 2013 at 10:22 pm | Permalink

    You should probably read that Genesis passage before quoting it. The exchange is: If I find 10 innocent people in Sodom, I’ll spare the whole city. How you link this to presumption of innocence I’m not sure because you didn’t explain. Presumption of innocence is embedded in the OT with its accusatory rather than inquisitional judicial system.

  18. marks
    Posted June 5, 2013 at 7:28 am | Permalink

    One thing that stands out is that the arguments are stated in an ‘either/or’ setting.

    Is it not possible for society to develop some more nuanced approaches?

    For example in the case where there are 100000 trouble making criminals in the UK, rather than talking about locking them up, or not, is it not possible to have lesser interventions? For example, if there is a link between alcohol and some offending, could they not be required to remain alcohol free? Not as part of parole conditions, but forever, or until they are declared to be cured somehow. In other words, set a trigger condition (use of alcohol, attendance at Bikie events) which is far less than incarceration or fines, where it is reasonable to suppose based on previous records that such trigger condition has lead to serious crimes. The trigger condition may not even be criminal in itself, merely shown to have been a precursor to criminal activity in the past.

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