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Univ. of San Diego School of Law

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Friday, August 31, 2012

Cain on Presumed Guilt

Terrence Cain (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Presumed Guilty on SSRN. Here is the abstract:

It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the person is guilty or not. By legislative fiat, statutory presumptions have taken the place of proof, and as a consequence, usurped the jury’s role as the ultimate authority on whether the prosecution has satisfied its burden of proof. These presumptions violate the constitutional guarantees of the right to have the government prove each element of an offense beyond a reasonable doubt and the right to have a jury find all facts necessary to convict. The Supreme Court has heard this argument before and rejected it. It has not, however, reconsidered it in the aftermath of its decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker. These cases breathed much needed new life into the Sixth Amendment jury trial guarantee, and in the process put an end to a two decade legislative encroachment on the jury’s historic function as the sole arbiter of whether the government has proved all the essential facts necessary to convict a person of a crime. Apprendi, Blakely, and Booker cast doubt on the validity of statutory presumptions in criminal cases. This article will explain why that is so.

http://lawprofessors.typepad.com/crimprof_blog/2012/08/cain-on-presumed-guilt.html

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