"Better Ten Guilty Persons Go Free, Than One Innocent Man Suffer"--Blackstone's Ratio

The Common Law’s “Beyond a Reasonable Doubt” Saves Judicial Sanity in Martin Murder Case

By Kelly O'Connell ——Bio and Archives--July 16, 2013

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Yesterday's "Not Guilty" verdict in the Trayvon Martin murder trial produced much angry, racially tinged rhetoric and apocalyptic warnings of the impending fall of America. And yet, this result was actually the opposite.

The finding by the jury which freed George Zimmerman, after the propagandizing by the media, and illegal meddling by the White House was good news. It informs everyone that the death of the American justice system has been announced much too soon. The history of Anglo-American law traces a non-linear course, full of surprising twists and turns. For example, the very concept of the "fact," which most persons quite naturally assume derives from science, developed from legal discourse, according to Barbara J. Shapiro in A Culture of Fact: England, 1550-1720. A further curious point is that modern, western legal systems are much beholden to the Christian history of Europe. For instance, the notion of the criminal standard of proof being demanded--Beyond a Reasonable Doubt, comes not from sheer jurisprudence. Instead, it derives from the natural reluctance of medieval Christian jurors not to judge their neighbors in a manner too harsh for biblical standards, and therefore "build a mansion in hell" for themselves.

Yet add this Beyond a Reasonable Doubt standard to Lord Blackstone's famous dictum--"It is better that ten guilty persons escape than that one innocent suffer", and one can begin to understand the outlines of modern criminal law theory. Further, here we find a theory of crime and punishment which does not simply favor the state at the expense of the accused in the name of safety. In other words, these legal standards are quite fitting for a state which favors liberty over every other value, from our beginnings in the Declaration and Constitution. In fact, we must favor liberty over ramped up conviction rates to make sure the innocent are never disadvantaged in America's courtrooms.

I. Trayvon Martin's Murder Trial

Most Americans are aware of Black teenager Trayvon Martin's killing on February 26^th, 2012, in Florida by George Zimmerman, a neighborhood watch volunteer. Opinion was split on whether the shooting was self-defense, or cold-blooded murder; or was motivated by race. Zimmerman was questioned by police for 5-hours, then released, without being arrested. Race advocates, like Al Sharpton, were outraged and demanded action. Pressure mounted, and the State of Florida decided to prosecute Zimmerman. But when the trial finally occurred the prosecution's case was laughably bad and Zimmerman walked, a free man. Reactions to the verdict seem to fall on ideological sides. Minorities and liberals wanted a conviction for the shooting of an unarmed, minority teen. Conservative and White America expressed frustration that a person who did not seem obviously guilty of murder was being railroaded into a directed political verdict by the state. Some even kept track out how the media repeatedly misstated basic facts to apparently frame Zimmerman in the public's mind. But many problems remained for prosecutors to explain, such as the fact that no one could describe who threw the first blow. Another of which was described here:

A neighbor of George Zimmerman, who had perhaps the best view of the struggle between the neighborhood watch volunteer and Trayvon Martin, testified at Zimmerman's murder trial Friday that it appeared the teen was striking Zimmerman while straddling him.

So while Zimmerman was found Not Guilty of murder, did justice prevail? We will probably never find out what happened the night Trayvon died. But we can at least insist that, while Zimmerman might be guilty of a crime--until this is proved Beyond a Reasonable Doubt, he must remain free--despite whatever the media, political class and elites demand.

II. Presumption of Innocence

American criminal law is founded upon the presumption of innocence of all accused persons. This foundational principle was described by the US Supreme Court: "No 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." (Kentucky v. Whorton, 441 U.S. 786 at 790 (U.S., 1979)). In 1895, the Supreme Court in Coffin v. US unanimously ruled: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." (Coffin v. United States, 156 U.S. 432 at 453 (1895)). In Coffin, the Court cited Professor Simon Greenleaf, tracing back the presumption of innocence into deep antiquity:

Greenleaf traces this presumption (of innocence) to Deuteronomy, and shows it was substantially embodied in the laws of Sparta and Athens... there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show: 'Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.' 'The noble Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent.' Says Roman law: 'In all case of doubt the most merciful construction of facts should be preferred.' 'In criminal cases the milder construction shall always be preserved.' 'In cases of doubt it is no less just than it is safe to adopt the milder construction.' Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, 'a passionate man,' seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, 'Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?' to which Julian replied, 'If it suffices to accuse, what will become of the innocent?' The rule thus found in the Roman law was, along with many other fundamental and human maxims of that system, preserved for mankind by the canon law. Fortescue says: 'Who, then, in England, can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life. None but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape punishment of death than that one innocent person should be condemned and suffer capitally.' Lord Hale (1678) says: 'In some cases presumptive evidence goes far to prove a person 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.' He further observes: 'And thus the reasons stand on both sides; and, though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger,--'Quod dubitas, ne feceris." Blackstone (1753-1765) maintains that 'the law holds that it is better that ten guilty persons escape than that one innocent suffer.'

Lord Blackstone's Ratio

William Blackstone wrote the most influential legal work of Colonial America--his Commentaries on the Laws of England. In these he expressed an idea which has been oft quoted since he first penned it: "All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer."

III. Proof Beyond a Reasonable Doubt & Christian Origins of Our Legal System

The issue of evidence and Proof Beyond a Reasonable Doubt is at the heart of every prosecution in America. And yet few know the origin of this phrase, or the religious history behind it. James Q. Whitman describes this history in his, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial. He writes,

In order to make sense of our law, we have to dig deep into its past. In the criminal trial of past centuries, there was more at stake than the fate of the accused. The fate of those who sat in judgment was at stake at well. In part this was because jurors had to fear vengeance on the part of the relatives of the convicted man. But it was also for religious reasons. Convicting an innocent defendant was regarded, in the older Christian tradition, as a potential mortal sin. The reasonable doubt rule developed in response to this disquieting possibility. It was originally a theological doctrine, intended to reassure jurors that they could convict the defendant without risking their own salvation. According to medieval doctrine, judging was a spiritually dangerous business. Any sinful misstep committed by a judge in the course of judging "built him a mansion in Hell." This was especially true any time a judge imposed "blood punishments"--that is, execution and mutilation, the standard criminal punishments of pre-19^th century law. To be a judge in a capital case was to participate in a killing, and that meant judging was full of spiritual peril. The story of the "reasonable doubt" rule, which now seems so mysterious to us, is simply an English chapter in this long religious history. Common law jurors were Christians, and they were Christians who engaged in acts of judgment. This meant that to be a juror was potentially to "to pawn [your] Soul," as the most famous pamphlet of the revolutionary era declared. Or as another pamphlet put it, "the Juryman who finds any other person guilty, is liable to the Vengeance of God upon his Family and Trade, Body and Soul, in this world and that to come."

Conclusion

Unfortunately, we seem to have lost much of the moral element of the law in today's America. This is especially seen where there was a rush to judgment against Zimmerman in the media, demanding frontier justice and the hangman's noose before fact finding was done. Yet, would it not be better for society as whole if we more carefully considered situations--not just pre-judged from superficial first impressions? But, if we refuse to try to play God, and accept our inherent earthly limitations, we might find we can approximate more justice on this earth, not less.

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Kelly O'Connell——Bio and Archives

Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico.