Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
Jan Zopfs lists all such passages in his contribution to the Spee-Jahrbuch
2009,79 some of which are:
[That] only such men may become judges and inquisitors, who…,
in doubtful cases, are rather of a mind favourable to the accused
instead of unfavourable.80
[B]ecause one must rather go the safer path and release ten guilty
men instead of exposing oneself to the danger of punishing even
just one innocent man.81
The law demands that, in doubtful cases, one must rather be welldisposed towards the accused instead of the accuser.82
Furthermore, Cesare Beccaria, author of the well-known treatise Dei
delitti e delle pene (Of crimes and punishments), stated that a person
could not be considered responsible before the judge’s decision had been
issued. The logical consequence of that statement was that during the
proceedings the accused could not be treated as if he was responsible for
the crime and therefore detention on remand had to be utilized only if
strictly necessary; furthermore, if criminal responsibility was not certain,
unlike what happened during the age of absolutism, the defendant had to
be acquitted: “Either he is guilty, or not guilty. If guilty, he should only suffer
the punishment ordained by the laws, and torture becomes useless, as his
confession is unnecessary. If he be not guilty, you torture the innocent; for, in
the eye of the law, every man is innocent, whose crime has not been proved.”
According to Beccaria, one witness was not sufficient for a conviction to
be issued, because if the accused denies what only one person affirms,
truth remains uncertain and the right of everyone to be believed innocent,
weighs the scale in his favour: “One witness is not sufficient; for whilst the
accused denies what the other affirms, truth remains suspended, and the
right that every one has to be believed innocent, turns the balance in his
favour.”. 83
Similar, the English philosopher and jurist, Jeremy Bentham (1748-1832,
UK), in Principles of Judicial Procedure openly admits the more negative
effects of cases, where innocent people are convicted, but warns that one
mustn’t exaggerate this argument:
Jan Zopfs, Unschuldsvermutung und “in dubio pro reo” in der Cautio Criminalis, in Spee-Jahrbuch
2009 79, 86-88 (Arbeitsgemeinschaft der Friedrich-Spee-Gesellschaften Düsseldorf und Trier ed.
2009).
80
“[Dass] nur solche Männer Richter und Inquisitoren werden, die … in zweifelhaften Fällen dem
Angeklagten eher günstig als ungünstig gesonnen sind.” Spee, p. 52 (unofficial translation by author).
81
“[W]eil man den sichreren Weg gehen und lieber zehn Schuldige loslassen musste, als sich der
Gefahr auszusetsen, auch nur einen Unschuldigen zu bestrafen.” Spee, p. 193 (unofficial translation
by author).
82
“Das Recht verlangt, dass man in zweifelhaften Fällen eher dem Angeklagten als dem Ankläger
geneigt sein soll.” Spee, p. 276 (unofficial translation by author).
83
Cesare Beccaria, Dei delitti e delle pene (Of crimes and punishments), Tuscany 1764, Chapter 13, Of
the credibility of witnesses, Chapter 16 of Torture; http://www.thefederalistpapers.org/wp-content/
uploads/2013/01/Cesare-Beccaria-On-Crimes-and-Punishment.pdf (last accessed 07 November 2016).
79
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