Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt procedure expanded into criminal law.54 It was designed to obtain “full proof,” meaning rigid standards as to the quality and quantity of evidence necessary for a conviction, believing that as such could be ensured the objectivity of the judge.55 As Shapiro described, a judge in the Romanocanon inquisition process was “essentially an accountant of who totalled the proof fractions.”56 By following the correct procedure, judges avoided the stain of judicial bloodshed, while Canon lawyers, theologians, and jurists responded to the moral danger by distinguishing the role of the judge as a “minister of the law.”57 For example, Christian theologian Raymond de Peñafort (ca.1175 – 1275) explained that the judge does not sin if the criminal is “justly condemned,” meaning, among other things, that the judge must “observe the procedures of the law.”58. Medieval canon law developed the principle that “the judge judges according to the evidence presented, not according to his ‘conscience.’”59 “Conscience” referred both to judges’ moral convictions and to their knowledge of particular facts. Whitman explains that this prohibition of the use of “‘private knowledge’ was a moral comfort rule, a way for professional judges to assure themselves that they had maintained a safe distance from the bloody consequences of the case they were judging.”60 Continental judges, commonly priests, would have frequently taken confessions related to the cases they were deciding. As a consequence, the judge-confessor was likely to have had “private knowledge” of the facts at issue in the case. As a solemn rule, the secret confession could not be violated, and, by refusing to use their private knowledge, judges could escape personal moral responsibility for entering judgment.61 When it comes to the proof, testimony of two good witnesses (unimpeachable and trustworthy eyewitnesses) or a confession would be considered to have sufficiently high evidentiary value to constitute Whitman, p. 99. See also Brundage, p. 147. Whitman, p. 115. See also Shapiro, Doubt, p. 3; Bayer, V., Kazneno procesno pravo – odabrana poglavlja. Book II. Povijesni razvoj kazneno procesnog prava. Krapac, D.(Ed.), Zagreb, 1995, p. 95, 114.; Škulić, M., Krivično procesno pravo. Second revised and updated edition, Pravni fakultet Univerziteta u Beogradu, Beograd, 2010, p. 12. There were exceptions to the legal evaluation of evidence such as the institute of sending case file to a distinct group of experienced and educated lawyers in order to get advice, as prescribed in Constitutio Criminalis Carolina (Constitution Criminalis Carolina in XVI century is the first body of the German criminal law that aimed to unify the legal system of the “Holy Roman Empire” in Western Europe, laying a foundation for mass which trials and confessions by torture) see Bayer, V, Jugoslovensko krivicno procesno pravo, Second eddition, Pravo o cinjenicama i njihovim utvrdzivanju u krivicnom postupku, Second edition, Informer Zagreb 1978, р. 105. 56 Shapiro, Doubt, p. 3. 57 Whitman, p. 105. 58 Knut W. Nörr, Zur Stellung des Richters im Gelehrten Prozess der Frühzeit: Iudex Secundum Allegata non Secundum Cinscientum Iudicat 66 (C. H. Beck 1967) (hereinafter “Nörr”), citing Raymund de Peñafort, Summa de poenitentia, (ed. Xaverio Ochoa and Aloisio Diaz), (Rome: Institutum iuridicum Claretianum, 1976). 59 Whitman, p. 105, citing Nörr, p. 13. See also Jacques Delanglade, Le Juge, Serviteur de la Loi ou Gardien de la Justice selon la Tradition Theologique, 10 Rev. de Droit Canonique 141, 151-53 (1960). 60 Whitman, p. 110 (emphasis added). 61 Whitman, p. 110. 54 55 24