1462 THE GEORGETOWN LAW JOURNAL [Vol. 60:1381 to prepare his defense, the constitutional requirement is satisfied and there is no violation of due process.* 432 It has also been claimed that the pretrial detention provisions of the new District of Columbia law abridge the presumption of innocence which is supposed to be included in the guarantee of due process. There has always been pretrial detention in capital cases, and no one has ever seriously maintained that this violated due process of law or any presumption of innocence. This was not possible because the Constitution clearly envisions pretrial arrest and detention by permitting arrests on probable cause. As explained above, the term due process of law as used in the Constitution does not guarantee any particular procedure.433 It merely assures to the parties in a given case the regular procedure provided for by the law applicable to their case. Consequently, the presumption of innocence becomes part of due process only in such cases where the applicable law makes it a part of its procedural rules, as, for instance, California has done.434 437 The phrase presumption of innocence is particularly popular in American jurisdictions.435 It has been used to indicate 1) that the prosecution has the burden of proving guilt, and 2) that the accusation does not create a presumption of guilt, and that therefore the accused should not be treated as if already convicted.436 Both these principles originated in Roman law, as did the term presumption.* As a procedural term, the praesumptio is part of the doctrine of the "burden of proof" which developed in Roman civil procedure. The rule was that the party who alleged a right had the burden of proving it. A presumption created an exception to the rule in that it threw the burden of proof on the party who denied the existence of that right.488 Burden of proof means that a fact must be decided against the party who has the burden of supporting it by proof or evidence but is unable to do so. In criminal procedure the rules of burden of proof did not apply.439 The rule was simply that the accuser has the burden of proving his accusation and that any doubt with respect to a particular fact must 432 United States ex rel. Hyde v. McMann, 263 F.2d 940 (2d Cir.), cert. denied, United States ex rel. Hyde v. LaVallee, 360 U.S. 937 (1959); Wansley v. Wilkerson, 263 F. Supp. 54 (W.D. Va. 1967); see D.C. CODE ANN. § 23-1321 (h) (2) (Supp. IV, 1971). 433 See notes 1-325 supra and accompanying text. 434 See notes 326-327 supra and accompanying text. 435 See THAYER 553-54. 436 See notes 326-334 supra and accompanying text. 437 See notes 335-336 supra and accompanying text. 438 See id. 489 See notes 337-339 supra and accompanying text. 1972] PRETRIAL DETENTION 1463 be resolved in favor of the accused. This became the maxim of the European Continental law in dubio pro reo, which means, if there is doubt, it must be resolved in favor of the accused. It is obvious that, under a system where the rule that the accuser has the burden of proving the accusation is firmly established, no presumption whatever attaches to the accusation, and the party who denies has no burden of proving anything. Consequently, in such a system there is neither need nor room for a presumption of innocence. On the contrary, where the rule that the accuser must prove the accusation is adhered to, the presumption of innocence makes no legal sense. In the Anglo-Saxon process and the early common law, the accuser did not have to prove the accusation. He only had to show some support thereof. The supported accusation raised a presumption of guilt which could be defeated by the proof-lex-of the accused.440 When the supported accusation was replaced by the indictment of the inquisitiojury-this then raised a presumption of guilt, and the indictatus had to go to the proof in order to exculpate himself.441 Gradually, proof by the inquest, that is by jury, replaced the formalistic methods of proof, first in civil, later in criminal procedure, and the verdict took the place of the old forms of proof.442 The jurors based their verdict on their own knowledge. The judges of the common law courts made no attempt to find out how the jurors arrived at their verdict. In the thirteenth century, the parties in civil proceedings began to insist on informing the jury, by displaying documents, called evidence, and by having the parties' own witnesses made part of the jury, finally, in about the sixteenth century, by having their witnesses testify to the jury in the manner of Romano-canonical witnesses.443 Eventually, two important principles of the Roman law were adopted for the jury-1) that the verdict had to be based on what had been alleged and proved in court; and 2) that the person who advances a claim or makes a positive assertion has the burden of proving it." The same principles entered into the criminal procedure. Finally, the rule was established for American criminal trials that the prosecution has the burden of proving the accused guilty beyond a reasonable doubt, and that this burden stays with the prosecution from the beginning to the end of the trial. 440 See notes 342-345 supra and accompanying text. 1464 THE GEORGETOWN LAW JOURNAL [Vol. 60:1381 The emphasis which has been placed on the presumption of innocence in the common law world can only be explained by the complete reversal which its procedural concepts have undergone. Probably it was necessary to impress upon the jury that the indictment does not raise a presumption of guilt and that the accused must be considered innocent until after conviction. Furthermore, the common and statutory laws provide for many inferences and exceptions by which the defendant is required to introduce proof or evidence under threat that he may be convicted if he does not. 445 This shifting of the burden of proof appears to the ordinary mind to be in direct contradiction to the rule that the prosecution has the burden of proving guilt throughout the trial and is bound to cause confusion among the jurors. Here the presumption of innocence serves the purpose of impressing on the jury that any doubt they may have in the defendant's guilt must be resolved in favor of the accused.446 As regards the District of Columbia, there is no statutory definition of a presumption of innocence. The courts have usually connected it with the procedural rule that at the trial the burden of proving guilt is on the prosecution." In pretrial proceedings the United States Court of Appeals for the District of Columbia Circuit has used that phrase to indicate that the presumption of innocence entitles the accused to his liberty unless the Government can establish probable cause for his detention in accord with fair process. 448 Here the court merely interpreted what it considered to be fair process under the circumstances of that particular case, in order to establish probable cause required by the Constitution. As may have been expected, the presumption of innocence appears nowhere in the Constitution because the framers were too knowledgeable to include such a nonlegal phrase in a legal document which they intended to be "the supreme law of the land." There is then no constitutional presumption of innocence which could have been violated by an act of Congress creating pretrial detention provisions for the District of Columbia. As far as the phrase as an expression of public policy is concerned, that persons arrested on a criminal charge should be treated differently from convicted criminals, the new pretrial provisions for the District of Columbia pay more attention to this principle than has any federal legislation in the United States before. For the first time, Congress 445 See note 367 supra and accompanying text. 446 See Robertson v. United States, 124 U.S. App. D.C. 309, 364 F.2d 702 (1966). 447 See Deutsch v. United States, 367 U.S. 456, 471 (1961); Sinclair v. United States, 279 U.S. 263, 296-97 (1929). 448 Washington v. Clemmer, 119 U.S. App. D.C. 216, 219, 339 F.2d 725, 728 (1964). 1972] PRETRIAL DETENTION 1465 actually has provided that persons subject to pretrial detention shall be confined, to the extent practicable, in facilities separate from convicted persons. 449 The words "to the extent practicable" merely take into account the lack of separate facilities due to the fact that previous laws never took the trouble to concern themselves with any pretrial presumption of innocence. Finally, it has been alleged that the new statute denies citizens of the District of Columbia the equal protection of the laws by subjecting them to a system of pretrial detention not applicable to persons charged with crime in the rest of the nation. The equal protection clause of the fourteenth amendment applies to the states but not to Congress.450 The due process clause of the fifth amendment, which does apply to Congress, contains a guarantee of equal protection insofar as it forbids the exclusion of any individual from the regular procedure. Therefore the question may be asked whether Congress may exclude the citizens of the District of Columbia from a procedure which it has provided for the rest of the nation. The answer has been given by the Constitution itself-1) it has created the District as an entity separate and distinct from the rest of the nation; 2) it has given Congress plenary power "to exercise exclusive legislation in all cases whatsoever" over the District,451 while it has given Congress only limited jurisdiction to legislate for the rest of the nation.452 In the past, Congress has made use of its plenary power for the District by enacting laws which differed from those applying in like situations to the rest of the nation.153 Similarly, acting under the same plenary power which the Constitution gave Congress over federal enclaves," it has adopted for each federal enclave criminal laws different from the rest of the nation.455 This was held by the Supreme Court to be constitutional." 456 The power which Congress exercises over the District is unique insofar as this is the only place where Congress exercises legislative authority in the same manner a state does over its own territory. The new legislation relating to pretrial release and detention was enacted in proper exercise of that power. 449 D.C. CODE ANN. § 23-1321 (h) (1) (Supp. IV, 1971). 450 See note 386 supra and accompanying text. 451 U.S. CONST. art. I, § 8, cl. 17. 452 See notes 387-388 supra and accompanying text. 453 See notes 394-398 supra and accompanying text. 454 U.S. CONST. art. 1, § 8, cl. 17. 455 See notes 391-393 supra and accompanying text. 456 See notes 392-398 supra and accompanying text. 1466 THE GEORGETOWN LAW JOURNAL [Vol. 60:1381 CONCLUSION It follows from the foregoing discussion that the pretrial provisions of the District of Columbia Court Reform and Criminal Procedure Act of 1970 do not in any way violate the United States Constitution if construed in accordance with the natural meaning of its language in its historical setting. Even if Supreme Court decisions, which have deviated from the clear language of the Constitution, are taken into consideration at their present posture, no other conclusion can be drawn. The pretrial detention provisions of the statute under discussion concern legislation clearly left to Congress by the Constitution to determine what to do with persons after an arrest on probable cause as authorized by the Constitution.457 Thus, Congress has acted in the exercise of its legislative authority which it plainly has under the United States Constitution. However, if a majority of the Supreme Court continues the unauthorized practice of amending the Constitution by adding to it new rules not contemplated by the Constitution,458 then no one can predict whether or not the new pretrial detention provisions will be permitted to survive. APPENDIX 459 In the United States, the customary way of beginning criminal prosecution is by indictment or information and arrest. Although the laws permit the use of a summons instead of an arrest,* 460 this is very rarely used. Consequently the question of release from custody pending trial occurs in almost every criminal case. This is quite different in the democracies of the European continent. There the rule is that a person suspected of having committed a crime should be brought before the court by a summons and that arrest and detention should only be resorted to in emergencies. Consequently 457 See note 422 supra and accompanying text. 458 See notes 215-324 supra and accompanying text. 459 This Appendix considers the treatment of suspects before trial in some democracies of the European Continent. The countries here considered are France, Germany, and Switzerland, because these nations have largely influenced the laws of the other European countries. In this Appendix, the term German law refers to the law of the German Empire and that of its successor, the Federal Republic of Germany. 460 One example of such a provision is the following: "If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the request of the attorney for the government a summons instead of a warrant shall issue. . . . If a defendant fails to appear in response to the summons, a warrant shall issue." FED. R. CRIM. P. 4. |