The recent release on bail of former senator Leila de Lima after more than six years of imprisonment shows the uneven application of laws based on legal maxims that are not facts or proven theories. De Lima was jailed on the presumption of guilt, not innocence, by the powers that be, based mainly on the testimonies of drug criminals.
Is our judicial system ignorant of the scientific finding that eyewitness testimony is the most unreliable evidence, especially in the absence of corroborating documentary evidence? “Eyewitness testimony is fickle and, all too often, shockingly inaccurate,” according to an article, “Why Science Tells Us Not to Rely on Eyewitness Accounts” (https://www.scientificamerican.com/article/do-the-eyes-have-it/).
In the case of convicted felons, their testimonies should be regarded with a ton, not just a grain, of salt. Did the incumbent Department of Justice realize that it could lose the third and last case against De Lima?
We often hear lawyers and laymen alike citing legal maxims, especially when the rich and powerful are charged with heinous crimes like plunder and even murder. It looks like these maxims have acquired meanings that favor the criminal more than the victim, and, worse, have led to a low conviction rate by prosecutors and a failed judiciary.
Consider these: 1) “The accused is innocent until proven guilty” (presumption of innocence); 2) “It is better to set free 10 guilty men than jail one innocent man” (the Blackstone Ratio); and 3) “proof beyond reasonable doubt.”
My own knee-jerk reaction to presumption of innocence is: Isn’t the accused arrested and jailed because there is “probable cause” of guilt? Therefore, the accused is not innocent, although he/she has not yet been judged guilty.
“Probable cause” has a rather subjective (not quantified) meaning according to the Legal Dictionary: “apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action has accrued, justifying a lawsuit.”
“Probable” is a degree of certainty between “proven” and “possible,” which are terms that scientists also use in categorizing mineral reserves. To scientists, data are usually taken from three directions—length, width and height. The category is “possible” if data come from only one direction, “probable” if from two directions, and “proven” if from all three directions.
Thus, “proven” indicates almost 100% certainty; “probable,” more than enough data; and “possible,” less than enough. If we equate “proven” with “proof beyond reasonable doubt,” probable (cause) is not too far from it.
While the rate of conviction is low in the Philippines, as pointed out by former chief justice Artemio Panganiban in a column in the Inquirer, it is very high in developed countries like the United States and the United Kingdom, and in communist countries like Russia and China.
“The truth is that most criminal defendants are, in fact, guilty,” Harvard Law professor Alan Dershowitz wrote in “Reasonable Doubts.” He did not give the exact figures, but the PBS website “Presumed Guilty” has statistics showing that in the United States, more than 90% of federal defendants and 75% of defendants in the most populous counties were found guilty.
Those who were found guilty and represented by publicly funded lawyers were incarcerated at a higher rate (88%) than those who hired their own legal defense (77%). In the most populous counties, 71% of publicly defended clients were incarcerated, compared to 54% of those represented by private counsel.
Similar stats are provided by the Crown Prosecutor Service in the United Kingdom, which indicated that only 2-5% of defendants get acquitted.
The figures are much higher in Russia and China. A Moscow Times article in 2003 reported that only 0.8% of defendants were found not guilty. Chinese Statistics indicates that more than 99% of criminal defendants were found guilty in 2004.
It appears that the French canonical jurist Johannes Monachus introduced “presumption of innocence” in the 14th century as a legal instrument to favor the accused during the Inquisition, when people were arrested and tried for heresy and convicted without proper trial.
The phrase “innocent until proven guilty” was supposedly coined by the English lawyer Sir William Garrow in the early 19th century.
Legal historian Kenneth Pennington claimed that the concept originated much earlier with a Roman jurist named Paucapalea in the 12th century. In a scholarly article, “Innocent Until Proven Guilty: The Origins of a Legal Maxim,” which appeared in The Jurist in 2003, Pennington said God summoned Adam to explain why he disobeyed His rule. Adam pleaded innocence, saying he merely followed the wishes of the woman God had given to him (the implication being, it was God’s mistake in giving him the woman who was responsible for the misdeed).
If Genesis 1 is the First Trial, Adam’s is the first pleading for the presumption of innocence (“Unang Palusot” or First Alibi). But didn’t God already know Adam was guilty? Thus, even the guilty have the right to be summoned and to explain, as part of due process.
Monachus argued that no judge, not even the Pope, can come to a just decision without the defendant’s presence in court. Summons and judgment are parts of the judicial process, as God was bound to summon Adam. The canonist then formulated an expression for a right to a trial and due process: “a person is innocent until proven guilty” (item quilbet presumitur innocens nisi probetur nocens).
But bear in mind that God already knew Adam was guilty (the accused is arrested and detained because there is probable cause). Thus, presumption of innocence is about the right of an accused to a fair trial, that he/she is not innocent although yet to be judged guilty.
Sodom and Gomorrah
Closely related is the English jurist William Blackstone’s formulation (aka Blackstone’s Ratio) that “it is better that 10 guilty persons escape than one innocent suffer.” The ratio is derived from the story of Sodom and Gomorrah, in which God told Abraham that if he could not find 10 honest men there, He would destroy the place.
The haggling actually started with 50, then descended to 45, 40, 30, 20, and finally 10. Lot’s family of four was spared although the wife was also killed for disobeying the instruction of God’s angels not to look back at the burning cities.
“Lawyers are indoctrinated with it early in law school; Schoolboys are taught it; In the fantasies of legal academics, jurors think about Blackstone routinely,” Alexander Volokh wrote in an article, “Ten Guilty Men,” in the University of Pennsylvania in 1997.
I find it difficult to formulate the ratio based on the details of the story. Only three people (Lot and his two daughters) were saved and it is doubtful if they were not wicked as well (Lot offered his virgin daughters to the mob so the angels/visitors will not be raped/sodomized). There must have been young children (and babies?) in Sodom, so did they have to die also? And why look for honest men only? What about women, are they all wicked?
If anything, the Sodom and Gomorrah story implied that God does not care about the innocents as long as He can punish (kill) all the guilty. Recall that earlier with Noah, God did not bother looking for good people, he killed everyone by drowning. One wonders, why not with fire and brimstone like in Sodom, which is easier (geologically possible with volcanoes). There was not enough water in the atmosphere to flood the whole earth almost 9,000 meters deep (remember, all the mountains were submerged, including Everest).
There are many incidents in the Old Testament where God instructed His chosen people to kill all their enemies (except virgins), sometimes doing the killing Himself (e.g., Onan for wasting his semen). One netizen even compiled the number of dead enemies at 2.2 million.
Finally, guilt must be decided with proof “beyond reasonable doubt.” Even the only law book I have (“Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case” by Alan Dershowitz) admits that “we don’t, however, have a very good idea of what it means.”
Dershowitz accused the US Supreme Court of intellectual cowardice when it declared that the term “reasonable doubt” is self-explanatory. He likened it to Judge Potter Stewart’s definition of hardcore pornography: “I can’t define it, but I’ll know it when I see it.”
US courts, however, do tell juries what reasonable doubt is not. Standard instructions include: “Proof beyond reasonable doubt does not mean that the state must prove this case beyond all doubt… Nor (must the state) prove the essential elements in this case beyond the shadow of a doubt; it does not mean that at all… No defendant is ever entitled to the benefit or all doubt.”
So when I heard a prominent lawyer of former chief justice Renato Corona during his impeachment trial translate “beyond reasonable doubt” in Filipino as “walang kaduda-duda” (no doubt at all), I realized why the conviction rate here is very low.
In the book “Origins of Reasonable Doubt,” James Whitman, a professor at Yale Law School, said “convicting an innocent defendant was regarded, in the older Christian tradition, as a potential mortal sin.” He added: “The reasonable doubt rule developed in response to this disquieting possibility. It was originally a theological doctrine, intended to reassure jurors that they could convict the defendant without risking their own salvation.”
The term itself might have originated in the late 18th century, originally intended for jurors to convict even if there was some doubt and was not a sin. Thus, the original intent of convicting even when in doubt is closer to the meaning implied in current US jury instructions sans the religious angle.
But in Christian Philippines, it is obviously a stretch, and even twisted. The recent acquittal of former Commission on Elections chair Benjamin Abalos in the NBN-ZTE bribery case is deemed a good example of prosecutors needing more than proof beyond reasonable doubt to convict the accused.
Former chief justice Panganiban’s understanding of “probable cause” and “proof beyond reasonable doubt,” as stated in his Inquirer column, indicated the Philippine justice system’s differences with that of the United States, which is supposed to be our model. He said: “According to jurisprudence, ‘proof beyond reasonable doubt’ refers to ‘that degree of proof which, after an examination of the entire records of the case, produces in an unprejudiced mind, moral certainty of the culpability of the accused.’ And yet, to file a criminal case in court, all that is needed by the prosecutors, after conducting preliminary investigations, is merely ‘probable cause,’ a less strict standard.”
There: “Probable cause” is a less strict standard, unlike in the United States where it is enough to constitute proof beyond reasonable doubt. Or maybe Panganiban is just not saying something that everyone suspects: that court officials can be bought.
It appears to this layman that these three legal maxims have been misinterpreted to favor the accused rather than the victims. In fact, these could be rewritten based on the original meaning, as follows:
1. A defendant is presumed guilty because there is already probable cause (more than enough evidence), unless he/she is proven innocent in a fair trial.
2. Ten defendants should be judged guilty even if one of them may be innocent.
3. Even when there is some doubt in the evidence but it is reasonable, the defendant should be judged guilty.
Romeo S. Aquino is an exploration geologist who has worked here and abroad since 1974 with geological teams that found large copper and gold deposits in Indonesia, Peru and China. He started “fact-checking” news and online columns more than 10 years ago. —Ed.
Read more: The enduring case of De Lima, PDL