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
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