Presumption of innocence

Presumption of innocence

The presumption of innocence being innocent until proven guilty is a legal right that the accused in criminal trials has in many modern nations. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the judge and jury, who are 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. An objective observer in the position of the juror would reasonably conclude that the defendant probably committed the crime with which he is charged. The observable facts clearly support such an inference—the defendant has been charged with a crime, is present in court, represented by an attorney and all the participants in a criminal trial are also present and ready to proceed.

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. It is literally considered favorable evidence for the accused that automatically attaches at trial. 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.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 him.
  3. The jury is not to draw any inferences against the defendant from the fact that he has been charged with a crime and is present in court and represented by an attorney. The jury must decide the case solely on the evidence presented during the trial.

The phrase that a person is innocent until proven guilty refers to legal as opposed to factual guilt. In every case, the defendant either committed the offense or he did not; a fact that will remain true regardless of whether the jury acquits or convicts the defendant. 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|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:

The presumption of innocence in practice

Few legal systems have employed, de jure, a presumption of guilt. Accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce some failures to ensuring that suspects are treated well and are offered good defense conditions. Typical infringements include:

  • In some systems, suspects may be held for 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 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.

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 "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, 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 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 However, where an accused is in fact innocent, this may send a message to the jury that the court has already accepted that in fact a crime was committed, the burden of proof of which has traditionally been on the prosecution, and which furthermore is a matter of fact that is not for the court to judge, but rather, for 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.

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. Furthermore, in many civil law jursidictions (such as 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. 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.

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 particular, a court under the civil law system is not bound to a confession of guilt of an accused person. Thus, technically, the accused cannot plead "guilty". In quite a number of cases, courts had acquitted accused persons who had made a confession before the court, because it was found that the confession had not been credible. A common motive for false confessions is the aim of the accused to distract suspicion from a third person, to whom the confessing person maintains a personal relation. Supporters of the inquisitorial system maintain that the possibility of acquittal of a confessing accused is required to guarantee objective truth in criminal proceedings. Since criminal proceedings were mainly instituted in the public interest, the personal pleadings of the accused could not be formally decisive for the case. For this reason, the accused person is not regarded as a party in criminal proceedings, but rather as a participant - of course with own specific rights. The reluctance of legislators to accept deals between prosecution, the accused, and the court is also based on to the notion on public interest involved in criminal proceedings and the suspicion that such deals may tamper the finding of objective truth.

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.

Another common misunderstanding which 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 which grant such rights to administrative bodies allow for a motion for independent judicial review of the case.

See also





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