’10 Guilty Men’: A Meditation on the Presumption of Innocence

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First, the societies that did not have it:

1. Ancient Israel:

And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.

– Genesis 18:23-26

2. Post-classical Athens:

It is a serious matter to decide that a slave is free, yet it is much more serious to convict a freeman of being a slave.

—Aristotle, 4th Century BC

Next, the societies that did have it:

1. Republican Rome:

I would rather ten guilty persons should escape, than one innocent should suffer.

– Cicero, 1st Century BC

2. Enlightenment England:

Better that ten guilty persons escape than that one innocent suffer.

— Blackstone, 1765

A false impression

The above selection of quotations is apt to give a false impression.

The falsity is conveyed in the Roman and English statements: they make it look as though human beings have always had the presumption of innocence, and we have often set “N number of guilty men” at about 10. We will let 10 guilty men go free rather than convict a single innocent.

However, the English and the Romans are actually outnumbered by societies — even very great ones — that behave as the ancient Israelites and Athenians did. For most of human history, we human primates have believed that where there is smoke there is fire. When we have accused people of wrongdoing, we have considered our accusations true because the accused “have it coming to them.”

The just world

This is because people are uncomfortable believing that suffering is random, that sometimes bad things happen for no reason at all. Instead, we prefer to believe that people must have done something to deserve what they get. This is a reassuring and comforting belief, which explains its wide appeal. (“If bad things only happen to those who deserve them, and I’m a good person, then I can be sure that nothing bad will happen to me,” Ulpian notes at one point.)*

For us moderns, belief in this so-called “just world” can be thought of as a failure to apply the null hypothesis in the moral domain: rejecting the explanation of chance, we prefer to believe that everything that happens is deserved – including being accused of a crime.

*It is perhaps worth noting that Ulpian, the Prefect of the Praetorian Guard, was later fragged by his own men, in part because he restrained their use of torture.

Confining N

Of course, the problem goes in both directions: it was Robert Nozick who observed that any criminal justice system unwilling to confine N would be one that had no system of punishment at all. If you’re willing to let an infinite number of guilty people go, there is no real justice either.

This recognises a tradeoff, a balancing act, and the impossibility of perfection. It recognises, too, that every time a guilty person is acquitted, the law has also failed the community it exists to serve. In a 1951 judgment – R v Patel [1951] All E.R. 29 — the Court of Criminal Appeal noted the difficulty of “trying to steer between the Scylla of releasing to the world unpunished an obviously guilty man and the Charybdis of upholding the conviction of a possibly innocent one.”

Defining N—determining just how many guilty people we are willing to let go to save innocents—is therefore difficult: a justice system that fails to punish the guilty will fail just as surely as a justice system that routinely punishes the innocent.