Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt was absolved due to the lack of evidence, but the process against him/her could be continued at any time. Whitman argues that although the Continental criminal procedure was “highly rule-bound,” it still provided considerable discretion sufficient to create judicial dilemmas, such as the instruction to find “indicia indubitata” i.e. “proofs that did not permit of any doubt.”66 Namely, “If the ordeal threatened to involve a priest in bloodshed, the [inquisitorial] trial threatened to do exactly the same thing to the judge.”67 Therefore, the blood punishments “could only be administered if there was perfect certainty about the guilt of the accused: as the canon lawyers put it, there could be no blood punishment unless there were proofs … ‘clearer than the light of the midday sun.’”68 According to Albertus Gandius, a thirteenth-century jurist, “When there are doubts and the evidence is uncertain it is better to leave the malefactor’s misdeed unpunished than to convict an innocent, since in cases of doubt punishments are better milder than harsher.69 As another example, the late twelfth-century canonist Huguccio (d.1210) analyzed the problems of criminal procedure, stating: a “‘doubtful matter’ was a matter not proven by witnesses, or documents, or evidence such as [a] confession.”70 Johannes Monachus, a French canonist who died in 1313, while glossing a decretal of Pope Boniface VIII, asked the question: could the pope, on the basis of this decretal, proceed against a person if he had not cited him?71 The jurist concluded that the pope was indeed above positive law, but not above natural one and, since summonses had been established by natural law, the pope could not omit them. Monachus, therefore, stated that no judge, even the pope, could come to a fair decision without summoning the defendant. Even though the crime was evident, the judge could proceed in a summary way in some parts of the process, but sooner or later the summonses and the subsequent judgment had to be issued. He argued that a summons to court and a judgment were imposed by natural law according to what was written in the Bible, more precisely in Genesis 3.9-12: since God had felt obliged to summon Adam, judges had surely to do the same. Then he formulated an expression of a defendant’s right to a trial and to due process with the following words: item quilibet presumitur innocens nisi probetur nocens (anybody must be presumed innocent if that person is not proven guilty). Similar example can be seen also in the following trial: in 1398, Salamon and his son Moyses, Jews living in Rimini, were accused by several Christian Whitman, p. 115. Whitman, p. 105. 68 Whitman, p. 100, citing Giorgia Alessi Palazzolo, Provo Legale e Pena. La Crisi del Sistema Tra Evo Medio et Modern 3-5 (Naples 1979). 69 Peter Holtappels, Die Entwicklung des Grundsatzes ‘in dubio pro reo’ (Cram de Gruyter 1965), cited in Whitman, n. 172. 70 Whitman, p. 119. 71 Kenneth Pennington, Innocent Until Proven Guilty: The Origins of a Legal Maxim, The Jurist, 2004, p. 115. 66 67 26