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http://ssrn.com/abstract=2192346
 
 

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The Presumption of Punishment


Shima Baradaran


University of Utah - S.J. Quinney College of Law

December 21, 2012

Criminal Law & Philosophy, Forthcoming

Abstract:     
The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due Process, as developed throughout English and U.S. Colonial history leading up to the formation of the U.S. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred.

Number of Pages in PDF File: 18

Keywords: Due process, Fifth Amendment, Sixth Amendment, jury trial, presumption of innocence, sentencing, Magna Carta, detention, trial, judges, guilt, prison

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Date posted: December 22, 2012  

Suggested Citation

Baradaran, Shima, The Presumption of Punishment (December 21, 2012). Criminal Law & Philosophy, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2192346

Contact Information

Shima Baradaran (Contact Author)
University of Utah - S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States

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