Hastings Law Journal


Scott E. Sundby


In these essays, the authors explore different views of the criminal trial as a means of determining "innocence." The more specific focus of the discussion is the role of the presumption of innocence and the best means for determining the facts to which the reasonable doubt rule should apply. Professor Schwartz, responding to an earlier article by Professor Sundby, argues that the presumption of innocence should be implemented through a standard by which a court would ask whether legislation or a procedure was "arbitrary, incompatible with civilized respect for the individual, and shocks the conscience of the Court." In response, Professor Sundby calls for a procedural application of the reasonable doubt rule, requiring the rule to attach automatically to any fact which the legislature has used to define criminal behavior and the appropriate punishment. The two approaches reflect, in part, the striking of a different balance between the danger of convicting innocent individuals with the need to preserve public confidence in the criminal justice system. Despite their different approaches, both agree that the Supreme Court's current standards inadequately protect the values underlying the presumption of innocence.

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