Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt Jan Zopfs lists all such passages in his contribution to the Spee-Jahrbuch 2009,79 some of which are: [That] only such men may become judges and inquisitors, who…, in doubtful cases, are rather of a mind favourable to the accused instead of unfavourable.80 [B]ecause one must rather go the safer path and release ten guilty men instead of exposing oneself to the danger of punishing even just one innocent man.81 The law demands that, in doubtful cases, one must rather be welldisposed towards the accused instead of the accuser.82 Furthermore, Cesare Beccaria, author of the well-known treatise Dei delitti e delle pene (Of crimes and punishments), stated that a person could not be considered responsible before the judge’s decision had been issued. The logical consequence of that statement was that during the proceedings the accused could not be treated as if he was responsible for the crime and therefore detention on remand had to be utilized only if strictly necessary; furthermore, if criminal responsibility was not certain, unlike what happened during the age of absolutism, the defendant had to be acquitted: “Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary. If he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent, whose crime has not been proved.” According to Beccaria, one witness was not sufficient for a conviction to be issued, because if the accused denies what only one person affirms, truth remains uncertain and the right of everyone to be believed innocent, weighs the scale in his favour: “One witness is not sufficient; for whilst the accused denies what the other affirms, truth remains suspended, and the right that every one has to be believed innocent, turns the balance in his favour.”. 83 Similar, the English philosopher and jurist, Jeremy Bentham (1748-1832, UK), in Principles of Judicial Procedure openly admits the more negative effects of cases, where innocent people are convicted, but warns that one mustn’t exaggerate this argument: Jan Zopfs, Unschuldsvermutung und “in dubio pro reo” in der Cautio Criminalis, in Spee-Jahrbuch 2009 79, 86-88 (Arbeitsgemeinschaft der Friedrich-Spee-Gesellschaften Düsseldorf und Trier ed. 2009). 80 “[Dass] nur solche Männer Richter und Inquisitoren werden, die … in zweifelhaften Fällen dem Angeklagten eher günstig als ungünstig gesonnen sind.” Spee, p. 52 (unofficial translation by author). 81 “[W]eil man den sichreren Weg gehen und lieber zehn Schuldige loslassen musste, als sich der Gefahr auszusetsen, auch nur einen Unschuldigen zu bestrafen.” Spee, p. 193 (unofficial translation by author). 82 “Das Recht verlangt, dass man in zweifelhaften Fällen eher dem Angeklagten als dem Ankläger geneigt sein soll.” Spee, p. 276 (unofficial translation by author). 83 Cesare Beccaria, Dei delitti e delle pene (Of crimes and punishments), Tuscany 1764, Chapter 13, Of the credibility of witnesses, Chapter 16 of Torture; http://www.thefederalistpapers.org/wp-content/ uploads/2013/01/Cesare-Beccaria-On-Crimes-and-Punishment.pdf (last accessed 07 November 2016). 79 28