Due Process

Brandon Garrett | 2.11.2025 8:01 AM

Sir William Blackstone famously said that it is "better that ten guilty persons escape, than that one innocent suffer." The maxim expressed by that English jurist was perhaps no more popular in 1765 than it is today.

In a jibe clearly directed at Blackstone and others of a similar mind, English jurist and philosopher Jeremy Bentham made light of writers call it better to save "several guilty men, than to condemn a single innocent man," and others who, "to make the maxim more striking, fixed on the number ten." Others "made this ten a hundred," and still others "made it a thousand." Such "candidates for the prize of humanity" go so far as to say that "nobody ought to be punished, lest an innocent man be punished."

If you were sitting as a juror in a criminal trial in the United States, a judge would instruct you, not on Blackstone's maxim, but on a due process-informed standard that embodies the same view: that the "defendant is presumed innocent of the charges" and that this presumption "is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty as charged." That standard of proof reflects Blackstone's view of due process. In 1970, Justice John Marshall Harlan II in........

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