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Presumption of innocence

Presumption of innocence

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The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...

 of the accused in a criminal trial
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...

, recognised in many nations. The burden of proof is thus on the prosecution
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...

, 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
Guilt (law)
In criminal law, guilt is entirely externally defined by the state, or more generally a “court of law.” Being “guilty” of a criminal offense means that one has committed a violation of criminal law, or performed all the elements of the offense set out by a criminal statute...

 beyond a reasonable doubt
Reasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...

. If reasonable doubt remains, the accused is to be acquitted
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...

.

Roman law


The sixth century Digest of Justinian
Justinian I
Justinian I ; , ; 483– 13 or 14 November 565), commonly known as Justinian the Great, was Byzantine Emperor from 527 to 565. During his reign, Justinian sought to revive the Empire's greatness and reconquer the lost western half of the classical Roman Empire.One of the most important figures of...

 (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat"Proof lies on him who asserts, not on him who denies". It is there attributed to the second and third century jurist Paul. When this rule is applied to criminal process (whether or not that was done in Roman law itself), it places the burden of proof upon the accuser, which has the corollary that the accused is presumed to be innocent.

Common law


In sources from common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 jurisdictions, the expression appears in an extended version, in its original form and then in a shortened form (and in each case the translation provided varies). As extended, it is: Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit"The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof." As found in its original form, it is (as above): Ei incumbit probatio qui dicit, non qui negat"The proof lies upon the one who affirms, not the one who denies." Then, shortened from the original, it is: Ei incumbit probatio qui"the onus of proving a fact rests upon the man".

Civil law


The maxim or its equivalent has been adopted by many civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 systems, including Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...

, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...

, Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...

, Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...

, Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...

, and France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

.

Meaning


"Presumption of innocence" serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt (or some other level of proof depending on the criminal justice system) and that the accused bears no burden of proof. This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow
William Garrow
Sir William Garrow KC, PC, FRS was a British barrister, politician and judge known for his indirect reform of the advocacy system, which helped usher in the adversarial court system used in most common law nations today...

 (1760–1840). Garrow insisted that accusers be robustly tested in court. An objective observer in the position of the juror must reasonably conclude that the defendant almost certainly committed the crime.

The presumption of innocence is in fact a legal instrument created by the French cardinal and jurist Jean Lemoine
Jean Lemoine
Jean Lemoine, Johannes Monachus was a French canon lawyer, Cardinal, bishop of Arras and papal legate. He served Boniface VIII as representative to Philip IV of France, and founded the Collège du cardinal Lemoine, in Paris.-Early life:He was awarded degrees in canon law and theology by the...

 to favor the accused based on the legal inference that most people are not criminals. It is literally considered favorable evidence for the accused that automatically attaches at trial. It requires that the trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...

, be it a juror or judge, begin with the presumption that the state is unable to support its assertion. To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:
  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.


This duty on the prosecution was famously referred to as the “golden thread” in the criminal law by Lord Sankey
John Sankey, 1st Viscount Sankey
John Sankey, 1st Viscount Sankey GBE, KStJ, PC, KC was a prominent British lawyer, judge and Labour politician, famous for many of his judgments in the House of Lords...

 LC
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...

 in Woolmington v DPP [1935] AC 462:

The fundamental right


This right is so important in modern democracies
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...

 and republic
Republic
A republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...

s that many have explicitly included it in their legal codes and constitutions:
  • The Convention for the Protection of Human Rights and Fundamental Freedoms
    European Convention on Human Rights
    The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

     of the Council of Europe
    Council of Europe
    The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...

     says (art. 6.2): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". This convention has been adopted by treaty
    Treaty
    A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

     and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union
    European Union
    The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

     is also member to the Council of Europe, so this stands for EU members as a matter of course. Nevertheless, this assertion is iterated verbatim in Article 48 of the Charter of Fundamental Rights of the European Union
    Charter of Fundamental Rights of the European Union
    The Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights for European Union citizens and residents, into EU law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of...

    .

  • In Canada
    Canada
    Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

    , section 11(d)
    Section Eleven of the Canadian Charter of Rights and Freedoms
    Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...

     of the Canadian Charter of Rights and Freedoms
    Canadian Charter of Rights and Freedoms
    The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

     states: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

  • In the South African Constitution, section 35(3)(h) of the Bill of Rights states: "Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings."

  • In France
    France
    The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

    , article 9 of the Declaration of the Rights of Man and of the Citizen
    Declaration of the Rights of Man and of the Citizen
    The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...

     1789, which has force as constitutional
    Constitution
    A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

     law, begins: "Any man being presumed innocent until he has been declared guilty ...". The Code of Criminal Procedure states in its preliminary article that "any person suspected or prosecuted is presumed innocent for as long as their guilt has not been established" and the jurors'
    Jury
    A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

     oath repeats this assertion (article 304).

  • Although the Constitution of the United States
    United States Constitution
    The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

     does not cite it explicitly, presumption of innocence is widely held to follow from the 5th
    Fifth Amendment to the United States Constitution
    The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

    , 6th
    Sixth Amendment to the United States Constitution
    The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...

    , and 14th
    Fourteenth Amendment to the United States Constitution
    The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

     amendments. See also Coffin v. United States
    Coffin v. United States
    Coffin v. United States, 156 U.S. 432 , was an appellate case before the United States Supreme Court in 1895 which established the presumption of innocence of persons accused of crimes....

    and In re Winship
    In re Winship
    In re Winship, 397 U.S. 358 , was a United States Supreme Court decision that held that when a juvenile is charged with an act which would be a crime if committed by an adult, every element of the offense must be proved beyond a reasonable doubt, changing the previous standard of preponderance of...

    .

  • 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
    Constitution of Russia
    The current Constitution of the Russian Federation was adopted by national referendum on 12 December 1993. Russia's constitution came into force on 25 December 1993, at the moment of its official publication...

    , 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 sentence 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
    Universal Declaration of Human Rights
    The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...

    , 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
    Public trial
    Public trial or open trial is a trial open to public, as opposed to the secret trial. The term should not be confused with show trial.-United States:...

     at which they have had all the guarantees necessary for their defence".

The presumption of innocence in modern practice



Some legal systems have employed de jure
De jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....

presumptions of guilt, such as at an order to show cause
Order to show cause
An order to show cause, in most Anglo-Saxon law systems, is a type of court order that requires one or more of the parties to a case to justify, explain, or prove something to the court. Courts commonly use orders to show cause when the judge needs more information before deciding whether or not to...

 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
    Speedy trial
    Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair...

    )

  • Courts may prefer the testimonies of persons of certain class, status, ethnicity, sex, or economic or political standing over those of others, regardless of actual circumstances.

  • In Europe
    Europe
    Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...

     and the New World, until the early 18th century, it was common for the justice system to have suspects torture
    Torture
    Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...

    d to extract confessions from them, since circumstantial evidence
    Circumstantial evidence
    Circumstantial evidence is evidence in which an inference is required to connect it to a conclusion of fact, like a fingerprint at the scene of a crime...

     was rarely analyzed or admitted in those times. Although this practice is generally and has generally been disallowed in the more recent past, except during 20th-century fascist and Soviet governments, there have been attempts to introduce evidence obtained from suspects tortured elsewhere (so-called extraordinary rendition).

  • Some public universities punish members of athletic teams accused of felonies after they are indicted, even if they have not been convicted. In some cases this may entail expulsion from the team and/or loss of the athletic scholarship.

  • In the United Kingdom
    United Kingdom
    The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

     changes have been made affecting this principle. Defendants' previous convictions may in certain circumstances be revealed to juries. Although the suspect is not compelled to answer questions after formal arrest, failure to give information may now be prejudicial at trial. Statute law also exists which provides for criminal penalties for failing to decrypt data on request from the Police. If the suspect is unwilling (or even unable) to do so, it is an offence. Citizens can therefore be convicted and imprisoned without any evidence 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. Furthermore, in sexual offence cases such as rape, where the sexual act has already been proved beyond reasonable doubt, there are a limited number of circumstances where the defendant has an obligation to adduce some evidence that the complainant consented to the sexual act, or that the defendant reasonably believed that the complainant was consenting. These circumstances include, for example, where the complainant was unconscious, unlawfully detained, or subjected to violence.

  • Scottish law provides for a third verdict: "not proven
    Not proven
    Not proven is a verdict available to a court in Scotland.Under Scots law, a criminal trial may end in one of three verdicts: one of conviction and two of acquittal ....

    ".

  • In practice, a ruling of innocence will be returned only if the defense is able to provide proof of innocence that is superior to the prosecution's proof of guilt. The prosecution's proof of guilt, however flimsy, is expected to be rebutted with proof of innocence by a legal defense, before a ruling on guilt or innocence is given. The rebuttals of an innocent defense are likely to be produced from a position of poor knowledge about the alleged crime, which can allow the prosecution to easily discredit the defense's rebuttals. In essence, the defense is expected to concoct a story of events that explains the facts of the case without implicating the defendant. The defense rebuttal may solve the crime by identifying the true perpetrator, it may implicate another innocent defendant, or it may be discredited as an implausible fabrication.

  • In some jurisdictions state funded defences may not match the quality of State funded prosecutions. Further, where a defendant funds their own defence, the cost is borne solely by the individual, whereas the burden of funding a prosecution is collectively borne by the State. Individual defence resources in finances, information, equipment, expertise, research, and personnel may not match the resources of a government, especially if the defendant is imprisoned.


Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalist
Journalist
A journalist collects and distributes news and other information. A journalist's work is referred to as journalism.A reporter is a type of journalist who researchs, writes, and reports on information to be presented in mass media, including print media , electronic media , and digital media A...

ic 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.

Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights activists feel that pre-employment
Background check
A background check or background investigation is the process of looking up and compiling criminal records, commercial records and financial records of an individual....

 drug testing
Drug test
A drug test is a technical analysis of a biological specimen – for example urine, hair, blood, sweat, or oral fluid / saliva – to determine the presence or absence of specified parent drugs or their metabolites...

, 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
Sexual harassment
Sexual harassment, is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In some contexts or circumstances, sexual harassment is illegal. It includes a range of behavior from seemingly mild transgressions and...

 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
Therapeutic jurisprudence
Therapeutic jurisprudence is a term first used by Professor David Wexler, and University of Puerto Rico School of Law, in a paper delivered to the National Institute of Mental Health in 1987...

. 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. 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.

See also

  • Blackstone's formulation
    Blackstone's formulation
    In criminal law, Blackstone's formulation is the principle: "better that ten guilty persons escape than that one innocent suffer", expressed by the English jurist William Blackstone in his Commentaries on the Laws of England, published in the 1760s.-Historical expressions of the principle:The...

  • Trial by media
    Trial by media
    Trial by media is a phrase popular in the late 20th century and early 21st century to describe the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law.In the United Kingdom there...

  • Presumed Guilty
    Presumed Guilty (2009 film)
    Presumed Guilty shows the attempt by two young Mexican attorneys to exonerate a wrongly convicted man by making a documentary...

    , a 2009 Mexican documentary film

External links