Presumption of innocence

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 of the accused in a criminal trial, recognised in many nations. 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. If reasonable doubt remains, the accused is to be acquitted.

History

Roman law

The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat^[1] — "Proof lies on him who asserts, not on him who denies".^[2] 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 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."^[3] 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." ^[4][5] Then, shortened from the original, it is: Ei incumbit probatio qui — "the onus of proving a fact rests upon the man".^[6]

Civil law

The maxim or its equivalent has been adopted by many civil law systems, including Brazil,^[7] Italy,^[8][9] Philippines,^[10] Poland,^[11] Spain,^[12] and France.^[13]

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.^[14] This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow (1760–1840).^[15] 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.^[16]

The presumption of innocence is in fact a legal instrument created by the French cardinal and jurist Jean Lemoine to favor the accused based on the legal inference that most people are not criminals.^[17] It is literally considered favorable evidence for the accused that automatically attaches at trial.^[18] 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.^[17] To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:^[14]

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 LC in Woolmington v DPP [1935] AC 462:

The fundamental right

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

• The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe 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 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 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.

• In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms 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, article 9 of the Declaration of the Rights of Man and of the Citizen 1789, which has force as constitutional 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"^[13] and the jurors' oath repeats this assertion (article 304).^[19]

• Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th, and 14th amendments. See also Coffin v. United States and In re Winship.

• 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 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, 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 modern practice

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 economic or political standing over those of others, regardless of actual circumstances.

• In Europe and the New World, until the early 18th century, it was common for the justice system to have suspects tortured to extract confessions from them, since circumstantial evidence 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 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.^[20] 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.^[21]

• Scottish law provides for a third verdict: "not proven".

• 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 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.

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.^[22] 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.^[23]

See also

• Blackstone's formulation
• Trial by media
• Presumed Guilty, a 2009 Mexican documentary film

Notes

References

External links

• The Presumption of Innocence in the French and Anglo-American Legal Traditions
• The History of Presumed Innocence
• The effects of presuming innocence
• Justice:Denied magazine reports on the miscarriages of justice that occur when the presumption of innocence is not respected.
• Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394