The idea subsequently became a staple of legal thinking in Anglo-Saxon jurisdictions and continues to be a topic of debate. There is also a long pre-history of similar sentiments going back centuries in a variety of legal traditions. The message that government and the courts must err on the side of bringing in verdicts of innocence has remained constant.[citation needed]
In Blackstone's Commentaries
The phrase, repeated widely and usually in isolation, comes from a longer passage, the fourth in a series of five discussions of policy by Blackstone:
Fourthly, all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer. And Sir Matthew Hale in particular lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead; on account of two instances he mentions where persons were executed for the murder of others who were then alive but missing.
The phrase was absorbed by the British legal system, becoming a maxim by the early 19th century.[2] It was also absorbed into American common law, cited repeatedly by that country's Founding Fathers, later becoming a standard drilled into law students all the way into the 21st century.[3]
Benjamin Franklin's version of Blackstone's ratio is very commonly quoted
Other commentators have echoed the principle. Benjamin Franklin stated it as: "it is better 100 guilty Persons should escape than that one innocent Person should suffer".[4]
Defending British soldiers charged with murder for their role in the Boston Massacre, John Adams also expanded upon the rationale behind Blackstone's Ratio when he stated:
We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.[5]
Given that Sir Matthew Hale and Sir John Fortescue in English law had made similar statements previously, some kind of explanation is required for the enormous popularity and influence of the phrase across all the Anglo-Saxon legal systems. Cullerne Bown has argued that it "...can be seen as a new kind of buttress of the law that was required in a new kind of society."[6][7]
Historic expressions of the principle
The immediate precursors of Blackstone's ratio in English law were articulations by Hale (about 100 years earlier) and Fortescue (about 300 years before that), both influential jurists in their time. Hale wrote: "for it is better five guilty persons should escape unpunished, than one innocent person should die." Fortescue's De Laudibus Legum Angliae (c. 1470) states that "one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned and suffer capitally."[8]
Some 300 years before Fortescue, the Jewish legal theorist Maimonides wrote that "the Exalted One has shut this door" against the use of presumptive evidence, for "it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death."[8][9][10]
Maimonides argued that executing an accused criminal on anything less than absolute certainty would progressively lead to convictions merely "according to the judge's caprice" and was expounding on both Exodus 23:7 ("do not bring death on those who are innocent and in the right") and an Islamic text, the Jami' al-Tirmidhi.
Islamic scholar Al-Tirmidhi quotes Muhammad as saying, "Avoid legal punishments as far as possible, and if there are any doubts in the case then use them, for it is better for a judge to err towards leniency than towards punishment". A similar expression reads, "Invoke doubtfulness in evidence during prosecution to avoid legal punishments".[11]
Other statements, some even older, which seem to express similar sentiments have been compiled by Alexander Volokh. A vaguely similar principle, echoing the number ten and the idea that it would be preferable that many guilty people escape consequences than a few innocents suffer them, appears as early as the narrative of the Cities of the Plain in Genesis (at 18:23–32),[8]
Abraham drew near, and said, "Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?[12] ... What if ten are found there?" He [The Lord] said, "I will not destroy it for the ten's sake."[13]
With respect to the destruction of Sodom, the text describes it as ultimately being destroyed, but only after the rescuing of most of Lot's family, the aforementioned "righteous" among a city or overwhelming wickedness who, despite the overwhelming guilt of their fellows, were sufficient by their mere presence to warrant a "stay of execution" of sorts for the entire region, slated to be destroyed for being uniformly a place of sin. The text continues,
27 Early the next morning Abraham got up and returned to the place where he had stood before the Lord. 28 He looked down toward Sodom and Gomorrah, toward all the land of the plain, and he saw dense smoke rising from the land, like smoke from a furnace.[14]
29 So when God destroyed the cities of the plain, he remembered Abraham, and he brought Lot out of the catastrophe that overthrew the cities where Lot had lived.[15]
Similarly, on 3 October 1692, while decrying the Salem witch trials, Increase Mather adapted Fortescue's statement and wrote, "It were better that Ten Suspected Witches should escape, than that one Innocent Person should be Condemned."[16]
The Russian writer Fyodor Dostoevsky in his work The Brothers Karamazov,[17][18] written in 1880, referred to the phrase "It is better to acquit ten guilty than to punish one innocent!"("Лучше оправдать десять виновных, чем наказать одного невиновного!"), which has existed in Russian legislation since 1712, during the reign of Peter the Great[19][20]
Even Voltaire in 1748 in the work of Zadig used a similar saying, although in French his thought is stated differently than in the English translation:[21]
Blackstone would have put the probability standard for proof "beyond a reasonable doubt" at somewhat more than 90%, for he declared: "It is better that ten guilty persons escape than one innocent suffer."
Pi et al. advocate formalizing this in jury instructions.[24] However, Daniel Epps argues that this is too simplistic, ignoring such factors as jury behaviour, plea bargains, appeals procedures, and "the percentage of innocent persons among the pool of charged defendants".[25]
Particularly in the United States, Blackstone's ratio continues to be an active source of debate in jurisprudence. For example Daniel Epps and Laura Appleman exchanged arguments against and in favour of its continuing influence in the Harvard Law Review in 2015.[26]
Legal and moral philosopher Fritz Allhoff has supported the essence of Blackstone's ratio. He submits that punishing the innocent "violates notions of desert". He further defends this position by appealing to the liability principle, which is grounded in just war theory. He suggests that "the guilty are liable to punishment, whereas the innocent are not" making the punishment of the innocent manifestly unjust, therefore the innocent should face no prospect of being punished; and Blackstone’s Ratio is a means to this end. He has, however, criticised the fact that Blackstone's ratio offers a static burden of proof, wherein prosecuting someone facing trial for a $10 fine would require the same standard of evidence as prosecuting someone facing the death penalty—under Blackstone's ratio at least. He comments: "If the tolerance for wrongful convictions varied based on the punishment, it would more accurately track our—or at least my—moral intuitions", and suggests that the greater the consequence of a guilty verdict, the greater the standard of proof required.[27]
Viewpoints in politics
Authoritarian personalities tend to take the opposite view. According to the Communist defector, Jung Chang, similar reasoning was deployed during the uprisings in Jiangxi, China, in the 1930s: "Better to kill a hundred innocent people than let one truly guilty person go free";[28] and during uprisings in Vietnam in the 1950s: "Better to kill ten innocent people than let a guilty person escape."[29] Similarly in Cambodia, Pol Pot's Khmer Rouge adopted a similar policy: "better arrest an innocent person than leave a guilty one free."[30]Wolfgang Schäuble referenced this principle while saying that it is not applicable to the context of preventing terrorist attacks.[31] Former American Vice PresidentDick Cheney said that his support of American use of "enhanced interrogation techniques" against suspected terrorists was unchanged by the fact that 25% of CIA detainees subject to that treatment were later proven to be innocent, including one who died of hypothermia in CIA custody. "I'm more concerned with bad guys who got out and released than I am with a few that in fact were innocent." Asked whether the 25% margin was too high, Cheney responded, "I have no problem as long as we achieve our objective. ... I'd do it again in a minute."[32]
Other considerations
Volokh considers two criminal cases in which the defense told the jury "that no innocent person should be convicted and that it is better that many guilty go unpunished than one innocent person be convicted" as references to a Blackstone's ratio with values of both "infinite" and "many" guilty men to an innocent one.[33] He notes its importance in the inspiration of Western criminal law, but concludes by citing a question of its soundness:
The story is told of a Chinese law professor, who listened as a British lawyer explained that Britons were so enlightened that they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, "Better for whom?"[34]
See also
Al-Ma'idah, the fifth chapter (sūrah) of the Quran, "whoever kills a person, unless it be for man-slaughter or for mischief in the land, it is as though he had killed all men."
The M'Naghten rule(s) (pronounced, and sometimes spelled, McNaughton) is a legal test defining the defence of insanity, first formulated by House of Lords in 1843. It is the established standard in UK criminal law, and versions have also been adopted in some US states (currently or formerly), and other jurisdictions, either as case law or by statute. Its original wording is a proposed jury instruction:
that every man is to be presumed to be sane, and... that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of the defendant. Criminal procedure can be either in form of inquisitorial or adversarial criminal procedure.
In a legal dispute, one party has the burden of proof to show that they are correct, while the other party has no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the dispute.
Civil procedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits. These rules govern how a lawsuit or case may be commenced; what kind of service of process is required; the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases; the timing and manner of depositions and discovery or disclosure; the conduct of trials; the process for judgment; the process for post-trial procedures; various available remedies; and how the courts and clerks must function.
Cesare Bonesana di Beccaria, Marquis of Gualdrasco and Villareggio was an Italian criminologist, jurist, philosopher, economist and politician, who is widely considered one of the greatest thinkers of the Age of Enlightenment. He is well remembered for his treatise On Crimes and Punishments (1764), which condemned torture and the death penalty, and was a founding work in the field of penology and the Classical School of criminology. Beccaria is considered the father of modern criminal law and the father of criminal justice.
"An eye for an eye" is a commandment found in the Book of Exodus 21:23–27 expressing the principle of reciprocal justice measure for measure. The earliest known use of the principle appears in the Code of Hammurabi, which predates the Hebrew Bible.
Sir William Blackstone was an English jurist, justice and Tory politician most noted for his Commentaries on the Laws of England, which became the best-known description of the doctrines of the English common law. Born into a middle-class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke College, Oxford, in 1738. After switching to and completing a Bachelor of Civil Law degree, he was made a fellow of All Souls College, Oxford, on 2 November 1743, admitted to Middle Temple, and called to the Bar there in 1746. Following a slow start to his career as a barrister, Blackstone became heavily involved in university administration, becoming accountant, treasurer and bursar on 28 November 1746 and Senior Bursar in 1750. Blackstone is considered responsible for completing the Codrington Library and Warton Building, and simplifying the complex accounting system used by the college. On 3 July 1753 he formally gave up his practice as a barrister and instead embarked on a series of lectures on English law, the first of their kind. These were massively successful, earning him a total of £453, and led to the publication of An Analysis of the Laws of England in 1756, which repeatedly sold out and was used to preface his later works.
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact. If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.
Beyond (a) reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the standard of balance of probabilities commonly used in civil cases because the stakes are much higher in a criminal case: a person found guilty can be deprived of liberty or, in extreme cases, life, as well as suffering the collateral consequences and social stigma attached to a conviction. The prosecution is tasked with providing evidence that establishes guilt beyond a reasonable doubt in order to get a conviction; albeit prosecution may fail to complete such task, the trier-of-fact's acceptance that guilt has been proven beyond a reasonable doubt will in theory lead to conviction of the defendant. A failure for the trier-of-fact to accept that the standard of proof of guilt beyond a reasonable doubt has been met thus entitles the accused to an acquittal. This standard of proof is widely accepted in many criminal justice systems, and its origin can be traced to Blackstone's ratio, "It is better that ten guilty persons escape than that one innocent suffer."
An accessory is a person who assists, but does not actually participate, in the commission of a crime. The distinction between an accessory and a principal is a question of fact and degree:
The sociology of punishment seeks to understand why and how we punish; the general justifying aim of punishment and the principle of distribution. Punishment involves the intentional infliction of pain and/or the deprivation of rights and liberties. Sociologists of punishment usually examine state-sanctioned acts in relation to law-breaking; why, for instance, citizens give consent to the legitimation of acts of violence.
Superior orders, also known as the Nuremberg defense or just following orders, is a plea in a court of law that a person, whether a member of the military, law enforcement, or the civilian population, should not be considered guilty of committing crimes that were ordered by a superior officer or official.
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.
Thou shalt not kill, You shall not murder or Do not murder (CSB), is a moral imperative included as one of the Ten Commandments in the Torah.
In India according to Section 300 of the Indian Penal Code, 1860, murder is defined as follows:
Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 167 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or- 3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.
South African criminal law is the body of national law relating to crime in South Africa. In the definition of Van der Walt et al., a crime is "conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted." Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.
In the United States, civil forfeiture is a process in which law enforcement officers take assets from people who are suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a pile of cash or a house or a boat, such that the thing is suspected of being involved in a crime. To get back the seized property, owners must prove it was not involved in criminal activity. Sometimes it can mean a threat to seize property as well as the act of seizure itself. Civil forfeiture is not considered to be an example of a criminal justice financial obligation.
Nulla poena sine culpa or the guilt principle is a legal principle requiring that one cannot be punished for something that they are not guilty of. It is recognized as a human right by the Court of Justice of the European Union and all Council of Europe member states. Under this principle, a person can not be punished if he or she is not guilty. Cases of force majeure or necessity are exempted from criminal responsibility. Furthermore, it establishes that no one can be liable for the crimes committed by another person.
The principle of legality in French criminal law holds that no one may be convicted of a criminal offense unless a previously published legal text sets out in clear and precise wording the constituent elements of the offense and the penalty which applies to it. (Latin:Nullum crimen, nulla pœna sine lege, in other words, "no crime, no penalty, without a law").
↑ Re Hobson, 1 Lew. C. C. 261, 168 Eng. Rep. 1034 (1831) (Holroyd, J.).
↑ G. Tim Aynesworth, An illogical truism, Austin Am.-Statesman, 18 April 1996, at A14. Specifically, it is "drilled into [first year law students'] head[s] over and over again." Hurley Green, Sr., Shifting Scenes, Chi. Independent Bull., 2 January 1997, at 4.
↑ 9 Benjamin Franklin, Works 293 (1970), Letter from Benjamin Franklin to Benjamin Vaughan (14 March 1785)
↑ Cullerne Bown, William (2018). "Killing Kaplanism: Flawed methodologies, the standard of proof and modernity". The International Journal of Evidence & Proof. 23 (3): 229–254. doi:10.1177/1365712718798387. S2CID202165265.
↑ st.847:“Better acquit ten guilty men than punish one innocent man! Do you hear, do you hear that majestic voice from the past century of our glorious history? It is not for an insignificant person like me to remind you that the Russian court does not exist for the punishment only, but also for the salvation of the criminal! Let other nations think of retribution and the letter of the law, we will cling to the spirit and the meaning—the salvation and the reformation of the lost. If this is true, if Russia and her justice are such, she may go forward with good cheer! Do not try to scare us with your frenzied troikas from which all the nations stand aside in disgust. Not a runaway troika, but the stately chariot of Russia will move calmly and majestically to its goal. In your hands is the fate of my client, in your hands is the fate of Russian justice. You will defend it, you will save it, you will prove that there are men to watch over it, that it is in good hands!”
↑ The Russian lawyer Oleg Surmachev on his website provides information about the German lawyer from Reval, Ernst Friedrich Krompein, who, having been captured by Russian troops in Vyborg in 1710, began to serve the interests of Peter I, and created and published in 1712 the first Russian military Code of Criminal Procedure, where in chapter 5 of paragraph 9 he wrote down this maxim:"... it is better to free 10 guilty people than to sentence one innocent to death." He did it 48 years earlier than respected lawyer William Blackstone.
↑ ""It is from him that the nations hold this great principle, thet it is better to risk saving a guilty man than to condemn an innocent man."
↑ United States v. Fatico,458F.Supp.388, 411(EDNY1978).; cited in Epps 2015 p.1145
↑ Pi, Daniel; Parisi, Francesco; Luppi, Barbara (2020). "Quantifying Reasonable Doubt". Rutgers University Law Review. 72 (2). Social Science Research Network. SSRN3226479. Retrieved 5 August 2020.
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