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The presumption of innocence (hereafter PI) is among the small handful of doctrines in criminal law that are ubiquitous across a very broad spectrum of legal systems. Enshrined in the constitutions of countries as diverse as France and Argentina, it is as much a commonplace in Roman-law countries as in common-law jurisdictions. Its historical pedigree has been traced as far back as that of any doctrine now current in the criminal law, even to Deuteronomy (if we are to believe the U.S. Supreme Court in Coffin ). On various occasions, the Supreme Court has seen in the PI the wellspring of American criminal procedure. In 1979, Justices Stewart, Brennan, and Marshall insisted that: "No principle is more firmly established in our system of criminal justice than the presumption of innocence that is accorded to the defendant in every criminal trial." In 1895, the Court unanimously held that: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." This is heady stuff: the PI as "undoubted law," "axiomatic," and at the very "foundation" of the criminal justice system. The Supremes added, in Estelle v. Williams, that the PI "is a basic component of a fair trial under our system of criminal justice."
Under such circumstances, one would expect it to be reasonably clear what the presumption of innocence is, when and where it applies in criminal proceedings, who is bound by it, and what relations it has to other key doctrines and precepts of the law such as reasonable doubt, the burden of proof, the benefit of the doubt, and due process generally. It is thus mildly disconcerting to discover that there is little consensus about precisely what the presumption of innocence means, that there is ardent debate about to whom and when it applies, and that courts and legal scholars disagree about whether it stands on its own legs doctrinally or is simply an obvious, if nontrivial, consequence of the standard of proof.
There is no lack of those who see its provenance as very broad. One scholar, William Laufer, claims that the privilege against self-incrimination, the right to...