Presumption of innocence: Wikis


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The presumption of innocence – being considered innocent until proven guilty – is a legal right that the accused in criminal trials has in many modern countries. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond a reasonable doubt. In case of remaining doubts, the accused is to be acquitted. This presumption is seen to stem from the Latin legal principle that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies).



First, the presumption is not a true presumption at all.[1] An objective observer in the position of the juror would reasonably conclude that the defendant probably committed the crime.[2] The observable facts clearly support such an inference - the defendant has been charged with a crime, is present in court and is represented by an attorney, and all the participants in a criminal trial are also present and ready to proceed.[3]

The presumption of innocence is in fact a legal instrument created by the law to favor the accused based on the legal inference that most people are not criminals.[4] It is literally considered favorable evidence for the accused that automatically attaches at trial.[5] It requires that the trier of fact, be it a juror or judge, begin with the presumption that the state is unable to support its assertion.[4] To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:[1]

  1. With respect to the critical facts of the case - whether the crime charged was committed and whether the defendant was the person who committed the crime - the state has the entire burden of proof.
  2. With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against them.
  3. The jury or judge is not to draw any negative inferences from the fact the defendant has been charged with a crime and is present in court and represented by an attorney. They must decide the case solely on evidence presented during the trial.

The concept of innocent until proven guilty refers to legal, as opposed to factual guilt. In every case, the defendant either committed the offence or did not, a fact that remains true regardless of whether the jury acquits or convicts. The phrase means simply that a person is not legally guilty until a jury returns a verdict of guilty, which is little more than a tautology.

This duty on the prosecution was famously referred to as the “golden thread” in the criminal law by Lord Sankey LC in Woolmington v DPP [1935] AC 462:

Throughout the web of the English criminal law one golden thread is always to be seen - that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception...

The fundamental right

This right is so important in modern democracies that many have explicitly included it in their legal codes and constitutions:

  • In the 1988 Brazilian constitution, article 5, section LVII states that "no one shall be considered guilty before the issuing of a final and unappealable penal sentence".
  • The Constitution of Russia, in article 49, states that "Everyone charged with a crime shall be considered not guilty until his or her guilt has been proven in conformity with the federal law and has been established by the valid sentense of a court of law". It also states that "The defendant shall not be obliged to prove his or her innocence" and "Any reasonable doubt shall be interpreted in favor of the defendant".
  • The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence.

The presumption of innocence in practice

Article 48 of the Charter of Fundamental Rights of the European Union affirms the right to the presumption of innocence

Some legal systems have employed de jure presumptions of guilt, such as at an order to show cause criminal proceeding. Otherwise, accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce some failures to ensure that suspects are treated well and are offered good defence conditions. Typical infringements include:

  • In some systems, suspects may be detained for long periods while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even though they have not been sentenced. (See speedy trial)
  • Courts may prefer the testimonies of persons of certain class, status, ethnicity, sex, or political standing over those of others, regardless of actual circumstances.
  • In Europe and the the new world, until the early 18th century, it was common for the justice system to have suspects tortured to extract confessions from them. Even though the suspects had not yet been found legally guilty, they were exposed to considerable pain, often with lasting physical consequences.
  • Many public institutions such as universities punish members accused of felonies after they are indicted, even if they have not been convicted. An example is the 2006 Duke University lacrosse team scandal, in which the accused were suspended even though they had not been convicted.
  • In the United Kingdom, statute law provides for criminal penalties for failing to decrypt data on request from the Police. If the suspect is unwilling (or unable) to do so, it is an offence. [6] Citizens can therefore be convicted and imprisoned without any proof that the encrypted material was unlawful. Further, the onus is on the defendant to decrypt the data, and having lost the key or the password is not considered reasonable excuse.

Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalistic codes of ethics state that journalists should refrain from referring to suspects as though their guilt is certain. For example, they use "suspect" or "defendant" when referring to the suspect, and use "alleged" when referring to the criminal activity that the suspect is accused of.

More subtly, publishing of the prosecution's case without proper defence argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects. Private groups fighting certain abuses may also apply similar tactics, such as publishing the real name, address, and phone number of suspects, or even contacting the suspects' employer, friends and neighbors (as an example, does so to shame suspected child molesters).

Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights activists feel that pre-employment drug testing, while legal, violates this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent through the test. Similarly, critics argue that some dispositions of laws against sexual harassment or racial discrimination show a presumption of guilt. These dispositions were meant to ease the burden of proof on the victim, since in practice harassment or discrimination practices are hard to prove.

Civil rights activists note that the well-meaning practices so adopted may have a deleterious effect on justice being served. An example is the use in some sexual assault cases of a screen, which is set up to prevent the complainant from being distressed at the sight of the accused. Where a victim was in fact victimized by the accused, this may be argued to serve the principles of therapeutic justice [1] Therapeutic Jurisprudence. However, where an accused is innocent, this may inadvertently tell the jury that the court accepts that a crime was committed. This shifts the burden of proof traditionally on the prosecution to the defense, and risks putting the court in the role of judging guilt rather than the jury. Not only this but also even more importantly, such a shield may also send a message that the complainant is upset by the sight of the accused, once again because guilt is seen to have been assumed by the court in so shielding the complainant. The psychological effects of such a screen have not yet been well researched, but the tension between the two views is a problem for therapeutic justice, which must weigh protection of genuine victims from genuine offenders against the potential for an unjust conviction that such protection may create.[2]

Differences between legal systems

A common opinion held in countries based on common law is that in civil law or inquisitorial justice systems, the accused does not enjoy a presumption of innocence. This idea results from the fact that in some civil law nations, an investigating magistrate supervises police investigations in certain cases. To common law countries with adversarial systems, having an investigating magistrate appears to be hopelessly biased, since the judge should remain as impartial as possible. However the magistrate does not determine innocence or guilt and functions much as a grand jury does in common law nations. Courts are often organized in a manner that it will not be the same judge who will determine the guilt or innocence of the suspect.

Furthermore, in most civil law jurisdictions (including Germany and Austria), police investigations are supervised by a prosecutor, and a judge is involved only in cases where a warrant is required for purposes of the investigation for restrictive measures as, e.g., arrest, search and seizure, or wiretapping. Thus the distinction between inquisitorial and adversarial system is in principle unrelated to the distinction between civil law and case law.

In the view of supporters of the inquisitorial system, the latter is less biased than the adversarial system, since the judges supervising cases are independent and bound by law to direct their enquiries both in favor or against the guilt of any suspect, compared to prosecutors in an adversarial system, who will, it is claimed, look only for evidence pointing to guilt and whose re-appointments may depend on the number of successful prosecutions that they have brought.

In general, civil law based justice systems, especially in Europe, avoid use of the term innocent, since it carries a moral charge separate from the phrase not guilty. It is argued a person who is found not guilty still cannot always claim to be innocent, e.g. if he/she has used lethal force in case of valid self-defence exerted against a mentally handicapped attacker with very low IQ. The wording is therefore delivered in a more formal and neutral manner, such that an accused is either declared guilty, not guilty for lack of a crime, not guilty due to lack of evidence, or not guilty due to lack of jurisdiction (in the case that a child or lunatic is accused). Such plain language is thought by such courts as better suited for the predominantly written proceedings and less emotionally-charged nature of civil law trials.

Another common misunderstanding that leads to the assumption that the presumption of innocence is not applied in civil law systems might be based on the fact that many jurisdictions allow administrative bodies to fine minor misdemeanors, in particular traffic violations, without prior obtaining a court judgment and sometimes "on the spot". However, all procedural laws in all continental European countries that grant such rights to administrative bodies allow for a motion for independent judicial review of the case. This system is not unlike those of many common law countries, in fact.

See also


  1. ^ a b Mueller, Christopher B.; Laird C. Kirkpatrick (1995). Modern Evidence: Doctrine and Practice. Little, Brown & Company. ISBN 0316590002. 
  2. ^ Rembar, The Law of the Land (Norton 1979)
  3. ^ Id.
  4. ^ a b Words and Phrases 1914 p. 1168
  5. ^ Coffin v. United States, 156 U.S. 432 (1895) “the presumption of innocence is evidence in favor of the accused, introduced by the law in [their] behalf”
  6. ^
  • Judicial and Statutory Definitions of Words and Phrases, West Publishing Co., 1914 .

External links

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