Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt Although for a long period of time the continental system was based on the assurance that a pro-active court, with strong investigative authorities, and not burdened by strict rules of evidence, will easily determine what really happened, i.e. the truth, the obvious deficiencies of judicial procedures resulted in the conclusion that they can be considered structurally dysfunctional for establishing the truth. Many factors can contribute to wrongful convictions. For example, witnesses to disturbing events often remember the details of those events incorrectly. Similarly, confessions given by suspects while in police custody are always questionable, because of common psychological pressures, and not infrequently, even open coercion. Recognising that there is a certain degree of distrust in the determination of facts by people, since criminal justice is based on decisions made by people, and people make mistakes246, it would be honest to proceed in a manner, in which one could be sure, as much as a human being can be sure, that the innocent would not be convicted. An author, who has received much attention lately with his theory of justice as fairness, is John Rawls. The problem he focuses on is that there is no criminal procedure that will always objectively and impartially lead to the correct conclusion: Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to advance this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time. A trial, then, is an instance of imperfect procedural justice. Even though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome. An innocent man may be found guilty, a guilty man may be set free. In such cases, we speak of a miscarriage of justice...247 As such, the focus is shifted from the truthfulness to the fairness of the procedure. The common idea is quite simple: a fair procedure is an appropriate tool and an acceptable method for determining the truth. A fair procedure demands that the procedure for determining the outcome must be carried out consistently, and the procedure itself must contain certain main features. It represents a procedure that justifies the 246 See J. B. Weinstein, Some Difficulties in Devising Rules for Determining Truth in Judicial Trials, 66 Columbia Law Review, 1966, 223, 229-41. 247 See Ј. Rawls, A Theory of Justice, Harvard University Press, Cambridge 1971, Fourth printing, 1972, p. 85-86. 54