The Rhetoric of Innocence

This Article promotes the serious consideration of innocence in the criminal process, and gives meaning to the rhetoric surrounding the presumption of innocence. The first part illustrates the near irrelevance of innocence in an accusatorial system of justice where burdens of proof require proof of guilt The second and third parts of the Article discuss the meaning of the presumption of innocence. It is argued that legislatures and courts have ignored the tension between the conflicting goals of the criminal process by thinking of the presumption of innocence as a legal presumption. As a legal presumption, its effects are indistinguishable from the reasonable doubt rule.

Arguments are presented that the presumption should be factually based so that jurors are asked to assume the accused's innocence in fact. This Article concludes with a proposal for a factually based assumption of innocence.