Putting the ‘presumption’ back in the ‘presumption of innocence’
| Author | Forest Yu |
| DOI | http://doi.org/10.1177/13657127221124361 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
Putting the ‘presumption’back in
the ‘presumption of innocence’
Forest Yu
Law at the University of Cambridge, Cambridge, UK
Abstract
This article tackles the question: can the Presumption of Innocence (PoI) be a presumption?
Whereas many criminal law theorists rejection such a notion, I draw inspiration from argumen-
tation theorists and philosophers—in particular, Petar Bodlovićand Edna Ullmann-Margalit—
and argue in favour of it; indeed, argumentation theory often holds the PoI out as a paradigmatic
presumption. My argument proceeds in three sections. I first show that criminal law
theorists writing on the PoI have understood presumptions as evidentiary devices in the form
of a modus ponens. On that understanding, the PoI cannot be a presumption. Attention is
then drawn to the field of argumentation theory, which teaches us that there are other types
of presumptions that are non-evidentiary, not in the form of a modus ponens, require a tentative
commitment to q, and require an agent to proceed (act) as if q;viz practical presumptions. The
PoI can be understood as such. Finally, it is argued that the PoI, insofar as it requires a tentative
commitment to q(here, ‘the defendant is innocent’), can be thought of as a propositional imagin-
ing of q(ie, an agent presuming innocence is to propositionally imagine the defendant’s
innocence).
Keywords
argumentation theory, cognitive presumptions, legal presumptions, practical presumptions,
presumption of innocence, propositional imaginings, suppositions
Introduction
Many legal writers argue that the presumption of innocence is not an authentic presumption (Gama, 2017: 559)
[T]he presumption of innocence …is considered a paradigmatic example of presumption among most argu-
mentation scholars (Bodlović, 2017: 516)
Most criminal law theorists baulk at the idea that the Presumption of Innocence (PoI) is an eviden-
tiary presumption. Some go further and accordingly claim it is not a presumption at all (Gama, 2017:
Corresponding author:
Forest Yu, Faculty of Law at the University of Cambridge, Cambridge, UK.
Email: fy249@cam.ac.uk
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(4) 342–358
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/ 13657127221124361
journals.sagepub.com/home/epj
559). Those who hold this latter view I shall call Sceptics.
1
On such a view, the PoI is not a presump-
tion in any sense of the defendant’s innocence: ‘presumably, the defendant is innocent’is absent
from the subject’s reasoning. My aim is to expose the false assumptions that underpin the
Sceptical view, and to show that the PoI can be understood as a true presumption.
The first part outlines and responds to the false assumptions made by many Sceptics. The first of these
equates a presumption of innocence with a belief in innocence (hereafter, the Belief Thesis). This equiva-
lence gives rise to two seemingly fatal problems (addressed under ‘The Belief Thesis’): it is thought that a
presumption—conceived as a belief—in a defendant’s innocence would stymy the investigation and
prosecution of criminal offences (Ulväng, 2013: 218); and it is thought that a presumption—conceived
as a belief—is not voluntary and thus not a propositional attitude that jurors (or anybody else) can adopt
on instruction (Picinali, 2021: 727; Roberts, 2020: 8916).
The second false assumption is exposed by argumentation theory. Many Sceptics have refused to
see that the PoI is a presumption because they have latched onto a narrow, evidentiary understanding
of ‘presumption’as a factual inference in the form, ‘if pthen pres q’(similar to the evidentiary pre-
sumption that a person is presumed deceased if she has been missing for over seven years) (for
example, Weigend, 2013: 193–194). Argumentation theory shows us that presumptions are a heter-
ogenous device (Bodlovic
́, 2019, 2020; Gama, 2017; Godden and Walton, 2007; Lewin
́ski 2017),
and that the PoI can be seen as a non-evidentiary type of presumption (but a presumption nonethe-
less)—what Nicholas Rescher (2006: 29) and Petar Bodlovic
́(2021) term a ‘practical presumption’.
2
Benefitting from argumentation theory’s more nuanced understanding of presumptions, I demon-
strate that the PoI can be a (type of) presumption—specifically, a practical presumption with a
non-evidentiary goal: of avoiding the greater harm of wrongfully convicting the innocent as
opposed to falsely acquitting the guilty (Bodlovic
́, 2019: 582, 2020; Ullmann-Margalit, 1983:
155). If I am right, we can ourselves be sceptical about the Sceptics’reasons as to why the PoI
cannot be a true presumption.
Having clarified the presumptive status of the PoI, some more positive claims follow (under
‘Presumption as a propositional attitude’). If not a belief, what propositional attitude is involved in
this practical presumption underlying the PoI? First, I draw inspiration from Federico Picinali (2021),
who suggests that presuming innocence might just be to propositionally imagine innocence.
3
I then con-
sider an alternative characterisation of the PoI as a supposition of the defendant’s innocence (legal pre-
sumptions are sometimes described in terms of suppositions). I conclude by siding with propositional
imaginings on account of their motivational power.
My overall account of the PoI, insofar as it can be a presumption,
4
is that it is a practical presump-
tion which requires a subject to propositionally imagine the defendant to be innocent and proceed
as such.
False assumptions
The Belief Thesis
If conceived of as a presumption, the PoI might seem paradoxical: how can the police or prosecution
presume the innocence of the defendant but also suspect her to be ‘someone in relation to whom a rea-
sonable presumption of guilt exists’(De Jong and Van Lent, 2016: 34; Mickonytė, 2019: 16)? If the
1. I should not be taken as suggesting that such theorists are united in their definitions of the PoI, only that they are united in their
scepticism that the PoI, however so defined, is an authentic presumption.
2. Notably, Ullmann-Margalit (1983) and Godden (2017) both understand presumptions in this way exclusively.
3. Nb Picinali (2021) is a Sceptic.
4. In this article I remain agnostic regarding whether the PoI contains other rules (such as the criminal standard of proof).
Yu 343
To continue reading
Request your trial