The Presumption of Guilt有罪推定.docVIP

The Presumption of Guilt and the English Law of Theft, 1750-1850 Bruce P. Smith? I. Introduction The “presumption of innocence” – the doctrine that the prosecution must both produce evidence of the defendant’s guilt and persuade the fact-finder of that guilt “beyond a reasonable doubt” – is a fundamental tenet of Anglo-American criminal law. Legal historians have argued that the presumption crystallized in English law in the late-eighteenth century as part of a constellation of safeguards afforded defendants accused of felonies, including the right to counsel and a general commitment to “adversarial procedure.” This essay argues, by contrast, that many English criminal defendants between 1750 and 1850 did not benefit from a presumption of innocence but, rather, struggled against a statutory presumption of guilt. In the starkest cases, defendants labored under a presumption of guilt when charged with violating one of numerous statutes passed by Parliament from the mid-eighteenth through the early-nineteenth centuries designed to combat various forms of misappropriation. Under these statutes, persons detected in possession of items such as metal, rope, textile materials, or wood who failed to “account” adequately for their possession could be convicted by magistrates of misdemeanors in “summary” (i.e., non-jury) proceedings, which dispensed with certain important procedural and evidentiary protections applicable in cases of larceny tried in the higher courts. My essay advances two main claims: first, English criminal justice administrators from roughly 1750 to 1850 routinely resorted to summary proceedings in cases of suspected theft because of the challenges of securing convictions in the higher courts for the felony of larceny; and, second, English criminal justice administration in this era is best viewed as a “two-tiered” system, in which felony defendants tried in the higher courts benefited from procedural and evidentiary protections that were denied to misdeme