Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
of the facts establishing the accused’s guilt before he or she can find the
accused guilty, by the evidence viewed in the way most favourable to the
accused.319
In other words, and when it comes to the acquittal, the right to presumption
of innocence would be emptied of all its significance without this principle,
since any doubtful situation would not be solved any more in favour of the
defendant. The legal presumption that the defendant is innocent would
be easily overcome by contradictory and infirm evidence presented by the
prosecutor who could rely on doubtful factual reconstruction and not solid
evidence to obtain a conviction. The defendant would still be presumed
innocent, but such presumption would be practically ineffective. And vice
versa, without the right to presumption of innocence, the principle of in
dubio pro reo would be of hardly any benefit to the defendant, since the
suspect should bear the burden of proving their innocence.
It is, therefore, evident how the principle of presumption of innocence
and the principle in dubio pro reo, i.e. the standard that the guilt shall be
proven beyond reasonable doubt, are actually entwined and must work
together in order to ensure full fairness of the proceedings. This principle
is applied with other constitutional rights fundamental to the guaranteed
due process rights – rights that are explicitly set out in the International
Covenant on Civil and Political Rights (“ICCPR”), and other regional
conventions, such as the ECHR.320
Numeric presentation of the standard of proof
People, including jurors, and frequently also lawyers, tend to represent
probability mathematically, by representing it as a number on a scale from
1 to 100, or as a degree of probability from 0 to 1.321 Taking into consideration
that there are startling discrepancies in such representations, many
surveys have been carried out in USA and in the United Kingdom in order
to measure the quantitative expression of reasonable doubt.322 While the
position most commonly expressed in jurisprudence is that the standard
of proof beyond reasonable doubt requires proof higher than 90%, the
research mentioned above shows that the degree of proof required by
respondents is sometimes much lower.
Frase & Weigend, The German Criminal Procedure Code section 261 requires the court to
adjudicate each case on the basis of its “free conviction derived from the totality of the trial”.
320
The fundamental rights of the accused include the right to a fair and public hearing, ICCPR, Art. 14(1),
ECHR, Art. 6(1). “If burdens and standards of proof reflect fundamental societal value determinations, as
Justice Harlan [Winship, 368-375, Harlan J. concurring] has so convincingly espoused, then constitutional
value, such as are embodied in the United States’ Bill of Rights and in solemnly proclaimed international
treaties must have some impact.” See also Juliane Kokott, The Burden of Proof in Comparative and
International Human Rights Law: Civil and Common Law Approaches With Special Reference to the
American and German Legal Systems 2-9 (Martinus Nijhoff Publishers 1998) (hereinafter “Kokott”), p. 27.
321
See: M. K., Dhami, On Measuring Quantitative Interpretation of Reasonable Doubt, 14 Journal of
Experimental Psychology: Applied, 2008, 353-363, available at: www.psychwiki.com
322
See D. K. Kagehiro, W. C. Stanton, Legal vs. quantified definitions of standards of proof, 9Law and
Human Behavior, 1985, 159-178.
319
72
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