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Presumption of innocence is a legal right that the accused enjoys in criminal trials in many modern nations. It states that no person shall be considered guilty until finally convicted by a court. The burden of proof is thus on the prosecution, which has to convince the court that the accused is guilty beyond a reasonable doubt. In principle, the defence does not have to 'prove' anything. However, the defence will often adduce evidence which would tend to show that there is a doubt as to the guilt of the accused.

Conversely, in many authoritarian regimes the prosecution case is, in practice, believed by default unless the accused can prove he is innocent, a practice called presumption of guilt. Many people believe that presumption of guilt is unfair and even immoral because it allows the strategic targeting of any individual, since it's often difficult to firmly establish proof of innocence (for example, it's often impossible to establish an alibi if the person is home alone at the time of the crime).

In many countries belonging to the Anglo-Saxon legal tradition, the Principle of Presumption of Innocence is phrased such that "the accused is presumed to be innocent until it has been declared guilty by a court". This abbreviated form neglects the point that a person may continue to appeal a decision, and will be presumed innocent until a final decision is made. Therefore people who have been found guilty in lower courts of law, but have pending appeals, cannot have their citizen's rights (such as to vote and to be elected) stripped nor can they be permanently removed from their offices, but merely suspended.

A fundamental right

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

  • 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 he has had all the guarantees necessary for his defence.

The presumption of innocence in practice

Few systems have had, de jure, presumption of guilt. Accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce some failures in ensuring that suspects are treated well and are offered good defense conditions. Typical infringements follow:
  • In some systems, suspects may be held on long periods on remand, while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even though he or she has not yet been sentenced. (see speedy trial)
  • Courts may prefer the testimonies of persons of certain class, status, ethnicity, gender, or political standing over those of others, regardless of actual circumstances.
  • In Europe and the Americas, prior to the French Revolution, it was common that justice could have suspects tortured so as to extract a confession from them. Even though the suspects were not, at this point, legally guilty, they were exposed to considerable pain, often with lasting physical consequences.

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 was certain. For example, they use "suspect" or "defendant" when referring to the suspect, and use "allegedly" when referring to the criminal activity that the suspect is accused of.

More subtly, publishing of the prosecution's case without proper defense 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, Perverted-Justice.com does so in order 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 via 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 of a screen in sexual assault cases, which is set up in some jurisdictions 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 *

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 most civil law nations, an investigating magistrate supervises police investigations. To common law countries with adversarial systems, the civil law criminal justice system 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.

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. Many in civil-law countries such as those of continental Europe consider that the US system of justice, for instance, is biased against poor defendants, who cannot afford to pay for expensive lawyers to contradict the accusation.

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 better suited for the predominantly written proceedings and less emotionally-charged nature of civil law trials.

See also

External links

Rights of the accused

Unschuldsvermutung | Présomption d'innocence | 推定無罪 | 无罪推定原则

 

This article is licensed under the GNU Free Documentation License. It uses material from the "Presumption of innocence".

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