The Search for Social Justice and the Presumption of Innocence in the Duke University (USA) Lacrosse Case of 2006–2007

Implications for Contemporary Legal and Ethical Communication

Authored by: Glen Feighery , Jr. Marouf Hasian , Richard Rieke

The Handbook of Communication Ethics

Print publication date:  December  2010
Online publication date:  January  2011

Print ISBN: 9780415994644
eBook ISBN: 9780203890400
Adobe ISBN: 9781135846671

10.4324/9780203890400.ch16

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Abstract

Any incident that involves ethical decisions involves uncertainty, but legal cases present particular challenges. In the United States and elsewhere it is generally asserted that the accused are considered innocent until proved guilty, but reality is more complex. The principle of presumption of innocence can be traced at least to the Code of Hammurabi (1792–1750 bce). The same principle appeared in ancient Roman law and elsewhere in Western European history. In Canada and Britain, Roach (2005) locates the presumption “against the imposition of punishment without proof of fault” in common law “that existed long before the enactment of formal bills of rights” (p. 733). French legal scholar Quintard-Morenas (2010) argues that the presumption carries two implications: it assigns prosecutors the burden of proof and shields the accused from punishment before conviction. He contends that the second element has had a checkered history. In France, the presumption of innocence was largely inoperative until the 1990s despite its inclusion in the 1789 Declaration of Rights. In the United States, he asserts, it has been reduced to an instrument of proof with little practical protection from punishment before conviction.

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