How To Save a Lawyer’s Soul
The Pharisee and the Publican (1876)
In criminal law, procedural law, or even administrative law, the words ‘procedural fairness’ pop up from time to time. Perhaps you know them by the name of ‘natural justice’, or even ‘due process.’ In any case, we have come to accept some baseline rules on how to conduct ourselves during criminal trials.
But why? What are these laws which we all accept? How did we come to accept them? They’ve changed throughout history for a myriad of reasons, and to explore this exceptionally dark mystery, The Brief [represented by Leo Chang] is proud to discuss the matter with Fr Richard Waddell, a canon lawyer who has served on the Victorian Bar for 22 years.
Throughout history, the procedures of criminal trials have evolved to accommodate the principle of procedural fairness, commonly referred to as due process. When and why did this development occur, and which modern rules reflect these values?
There has been an evolution in the rules of criminal procedure over the last four thousand years in the civilisations around the Mediterranean Sea and Europe but there has also been remarkable continuity. Modern criminal procedure began to take shape in the eleventh century when a recovery began in Europe from the collapse of society following the fall of the Western Roman Empire in 476. The recovery was marked by the growth of cities, expanding economies, increased literacy, and the establishment of centres of learning. The renewed study of ancient history, philosophy, theology, and Roman law gave society a rational and ethical basis for orderly government. In the administration of criminal justice, irrational and ritualistic means of judging accused persons were superseded. The trial by ordeal was forbidden by the Fourth Lateran Council in 1215 and rules of procedure developed to enable judgment in criminal trials to be based on a rational assessment of the best evidence.
While England and the Continent enjoyed the benefits of this cultural and social recovery at the same time and, in legal matters, were both influenced by Roman and canon law which were themselves intertwined, their legal systems also diverged in fundamental ways. England developed its system of common law based on custom (expressed primarily in judge made law) together with elements of Roman and canon law. Europe built its civil system on the basis of Roman law canon law, not as developed by the courts but as expounded by scholarly jurists (the ius commune) and by local law (the ius proprium). Further, with respect to judging cases, both criminal and civil, on the Continent judges working within a bureaucratic system developed an inquisitorial process where they decided the questions of both fact and law while the English developed an adversarial process where the jury decided the questions of fact and the judges the questions of law.
Despite this fundamental divergence, both systems had to respond to the same challenges and, drawing upon the same philosophical, theological, and legal traditions, did so in similar ways. The fundamental challenge was how to judge the guilt or innocence of a person accused of a crime in a way in which everyone could be confident that the right thing had been done both to the accused person and by those who were judging the issues. Three procedural rules were developed as the essential guarantees of 'due process' or 'procedural fairness' in criminal litigation:
· Right to be heard – right to defence;
· Burden of Proof – presumption of innocence;
· Standard of Proof – beyond reasonable doubt.
These procedural principles, however, have a long history, reaching back to very early times. Their origins are found in ancient philosophy and Roman law. There has also been a significant contribution by Christian thinkers, especially in medieval times. Their present status is generally understood to be founded upon universal human rights.
The right to be heard, or right of response, lies at the heart of the modern criminal trial. How did it come to be so widely accepted?
The right to be heard or the audi alteram partem ('hear the other party') rule has its origin in classical philosophy as a rule of the natural law or of natural justice. It involves not only the right to speak but necessarily the right to be summonsed, to know the particulars of the matters alleged, and the evidence being brought in their support. The rule has not always been embraced by courts or enforcers of the law.
In the eleventh century, jurists in the Christian tradition sought to make the principle more compelling by locating its origin in the Scriptures. Its locus was in the encounter between God and Adam after the Fall, where God summons Adam into his presence and asks him what he has done. Adam raises a defence – blaming Eve (who, when herself summoned, blames the serpent). This story from Genesis demonstrates that just as God was bound by the principle of audi alteram partem, so every Christian prince and judge is bound. The contribution of the Church in a believing society was to give this principle derived from a connatural sense of justice the force of a divine command and therefore to make it more likely to be followed.
In modern criminal proceedings, the burden of proof lies on the prosecution owing to the presumption of innocence. Why was this presumption initially formulated, and why has it endured into the modern age?
A requirement that the accuser prove the guilt of the accused is found in the Babylonian Code of Hammurabi (1792–1750 BC). In the Roman law, there is a maxim that 'the proof rests on the plaintiff' (actori incumbit probatio). There is another Roman maxim: ‘The proof rest upon him who speaks, not upon he who denies’ (ei incumbit probatio qui dicit, non qui negat). It is a rational principle, acknowledging the difficulty if not the impossibility, in most cases, of proving a negative. Accordingly, as Lord Sankey said in Woolmington v. The Director of Public Prosecutions [1935] AC 462 at 481, ‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt.’
The presumption of innocence is relevant to both the burden of proof but also to the standard of proof, if not also in some way to the right to be heard. Interestingly, as long ago as the fourth century B.C., Demosthenes was arguing in Athens that no accused person should be treated as a criminal until properly convicted. Under Roman law and later, canon law, the principle was ‘it does not follow that one who is accused is a wrongdoer but he is criminal who is convicted’ (non statim qui accusatur reus est, sed qui convincitur criminosus).
It was not until the thirteenth century that the expression the 'presumption of innocence' was first coined. A French Cardinal, Jean Lemoine (aka Johannes Monachus, d. 1313), justified a defendant's right to a trial and to due process with the following words: ‘a person is presumed innocent unless proven guilty’ (item quilibet presumitur innocens nisi probetur nocens). The maxim spread rapidly.
Although the presumption of innocence became a justification of the procedural norms concerning a right of defence and the burden and standard of proof, the expression itself had its origin in a fundamental Christian optimism about human nature. The phrase had been adapted by Cardinal Lemoine from sentence in a decretal issued by a Pope called (appropriately enough) Innocent III, which was about the essential goodness of human nature. There were others whose opinion of human nature was less sanguine but, fortunately, their views did not prevail. Despite everything, we remain optimistic.
The presumption of innocence is, in itself, of ambiguous legal effect. It has been interpreted as merely a procedural presumption or as a substantial presumption. As a procedural presumption, it is generally taken to incorporate the principles of an accused having a right to a defence, the burden of proof of a criminal trial resting on the prosecution, and the standard of proof being 'beyond reasonable doubt'. As a substantial presumption, it is seen as giving rise to a human right which has consequences in relation not only in relation to procedural fairness but also in relation to any initial investigative processes and pre-trial treatment of an accused person, in particular in relation to bail applications, remand conditions, and even extending to reputational issues. The idealism of this broader effect has to compete, however, with the reality that investigations usually proceed upon well-founded suspicions and that the vast majority of criminal prosecutions result in convictions.
The standard of proof in criminal trials is that a crime must be proven beyond reasonable doubt. Why was particular attention given to this standard, and what is the significance of going beyond a reasonable doubt?
Under Roman law, the standard of proof in criminal matters was very high. There had to be two eyewitnesses, documentary proof, or undoubted facts that were 'clearer than the light of day' (luce clarioribus expedita). Oral testimony was valued above all other evidence. The benefit of the doubt was given to the accused (in dubio pro reo). There was a Roman maxim, 'it is better that a guilty person escape than one innocent suffer'.
In Europe before the twelfth century, in cases where evidence was insufficient to determine either guilt or innocence, the accused person underwent trial by ordeal, most commonly the hot iron and water ordeals. In practice, the ordeals were more likely to result in an acquittal than a conviction of the accused person. The attraction of the trial by ordeal to the judges was that responsibility for determining the guilt or otherwise of the accused was transferred to God.
The abolition of the ordeal created a situation where judges (on the Continent) or juries (in England) had to determine the guilt or otherwise of persons on evidence which was not necessarily unequivocal. Principles had to be developed which enabled the judges of fact and law to make decisions with a good conscience and without fear of divine retribution – Judge not, that ye be not judged (Matthew 7:1).
At the time of these developments, theories of knowledge were being developed in both philosophy and theology. In philosophy, the question was how to test our knowledge of the material world – on what basis could we reach reliable conclusions about the nature of things when our empirical perception is so imperfect. In Christian moral theology, the question was how to make the right choices when confronted by situations where there was moral ambiguity. In both fields, the issues were how to reach a workable level of certainty in determining how to do the right thing.
In the legal context of judging whether an accused was guilty, both the epistemological and moral dimensions were relevant. From the personal point of view of judges and, in England, the jurors, the moral dimension was probably of more concern. Judging others, according to Christian teaching, was innately perilous to the spiritual welfare of the judge or the member of the jury, even when it was argued that the judge or jury member was protected by their acting in an official capacity rather than personally. In this context, where there was a reasonable doubt, it was 'safer' for the judge or jury member to acquit. While the accused person may have benefited from this higher standard of proof, the intention was primarily to benefit those who were judging the facts in the proceeding, whether judges or jury members.
The principle of procedural fairness allows the parties involved to make their case. Today, strict liability crimes in western democracies seem to be making a comeback; at the same time, some states deny human rights or reason as a foundation of law. Under these circumstances, how can one justify and protect procedural fairness?
The origins of the rules of procedure are found in philosophy and theology but their present status is generally understood to be founded upon universal human rights. Ultimately, however, a utilitarian or pragmatic argument for them may be the strongest, because these principles are necessary to ensure that citizens have confidence in the legal system which ensures the order and harmony of civil society.
There have been developments in modern law which have on the one hand reinforced the values lying behind the traditional principles of procedural fairness and, on the other hand, have undermined them. Since World War II, in the development of international law and the promotion of human rights, there have been many assertions of the right of defence and the rules regarding the burden and standard of proof in criminal proceeding, usually under the umbrella principle of the presumption of innocence.
Nevertheless, in domestic law in many countries, there has been also a trend towards imposing strict liability in relation to many instances of conduct which is a civil or criminal offence. At the lower level of significance is the strict liability attached to many civil offences – parking and driving infringements – but also at the higher level, strict liability attached to offences related to drug possession and trafficking, terrorist activity, corporate governance, and the revenue law. In these cases, upon certain threshold facts being established by the accuser, a significant burden of proof – either legal or evidentiary – may be shifted to the accused person to demonstrate his or her innocence, albeit on the balance of probabilities rather than beyond reasonable doubt. These developments have given rise to considerable debate about the correct balance between the need to deter criminal conduct and the desirability of preserving the values expressed by the presumption of innocence.
In our time, the moral actions of lawyers have been called into question, and various moral dilemmas present themselves to those in the profession. Can the rules derived from procedural fairness provide any solace to lawyers, and if so, how?
The foundations of our traditional principles of procedural fairness have a certain metaphysical quality. First, the concept of justice. Secondly, the dignity of the human individual. Thirdly, our awareness of the difficulties in determining the truth of any matter. Fourthly, the natural reluctance we have or should have to judge one another. These are all principles of civilised and human conduct which have historically been rooted in philosophical and theological systems which have been the historical foundations of our European culture. Many people believe that these concepts have a universal application.
Apart from these concepts, there is also an overriding practical consideration that social harmony and order can only be maintained by a legal system that is perceived to be both fair to the individual and effective in deterring criminal and anti-social activity. This practical consideration may itself be sufficient to justify these traditional principles on empirical grounds and without any appeal to philosophical or theological values.
Accordingly, for whatever reason, the principles which we have briefly discussed in this article, remain relevant to the administration of criminal justice now and in the foreseeable future.
Richard Waddell is a Catholic priest presently serving in Sydney. Before ordination, he was a member of the Victorian Bar. He has studied in Sydney, Melbourne, and Rome.
Fr Richard’s Reading List
Brundage, J.A., Medieval Canon Law (London: 1995).
Caenagem, R.C. Van, An Historical Introduction to Private Law (CUP: 1992).
Evans, G.R., Law and Theology in the Middle Ages (Routledge: 2002).
Ferguson, P.R., ‘The Presumption of Innocence and its Role in the Criminal Process’, (2016) 27 Criminal Law Forum 131-158.
Fraher, R.M., ‘Conviction According to Conscience: The Medieval Jurists' Debate Concerning Judicial Discretion and the Law of Proof’, (1989) 7(1) Law and History Review 23-86.
Gray, A., ‘Presumption of Innocence in Australia: A threatened species’ (2016) 40 Criminal Law Journal 262.
Helmholz, R.H., The Oxford History of the Laws of England – The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Vol. 1) (OUP: 2004).
Jackson J.D. and Summers, S.J., The Internationalisation of Criminal Evidence (CUP: 2012)
Mayali, L., ‘The Presumption of Evil in Medieval Jurisprudence’ in Harris, T.L. (ed.), Studies in Canon Law and Common Law in Honor of R.H. Helmholz (The Robbins Collection, Berkley: 2015)
Pennington, K., ‘Innocent Until Proven Guilty: The Origins of a Legal Maxim’, (2003) 63 The Jurist 106-124
Quintard-Morénas, F., ‘The Presumption of Innocence in the French and Anglo-American Traditions’, (2010) 58 The American Journal of Comparative Law, 107-149.
Tadros, V. and Tierney, S., ‘The Presumption of Innocence and the Human Rights Act’ (2004) 67(3) Modern Law Review 402-434.
Thayer, J.B., ‘The Presumption of Innocence in Criminal Cases’, (1897) 6(4) The Yale Law Journal, 185-212
Whitman, J.Q., The Origins of Reasonable Doubt – Theological Roots of the Criminal Trial (Yale: 2008).
This article was originally published under the title ‘The Origins of Procedural Fairness: or, How to Save a Lawyer's Soul’ in The Brief Edition 1, 2024 — Through a Glass, Darkly.