Presumption of innocence

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The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty . Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact (a judge or a jury). If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.

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In many countries and under many legal systems, including common law and civil law systems (not to be confused with the other kind of civil law, which deals with non-criminal legal issues), the presumption of innocence is a legal right of the accused in a criminal trial. It is also an international human right under the UN's Universal Declaration of Human Rights, Article 11.

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 Julius Paulus. It was introduced in Roman criminal law by emperor Antoninus Pius. [3]

A civil law system is a modern legal system derived from the ancient Roman legal system (as opposed to the English common law system). The maxim and its equivalents have been adopted by many countries that use a civil law system, including Brazil, [4] China, [5] France, [6] Italy, [7] [8] Philippines, [9] Poland, [10] Romania [11] and Spain. [12]

Talmudical law

According to Talmud, "every man is innocent until proved guilty. Hence, the infliction of unusual rigours on the accused must be delayed until his innocence has been successfully challenged. Thus, in the early stages of the trial, arguments in his defence are as elaborate as with any other man on trial. Only when his guilt has become apparent were the solicitous provisions that had been made to protect defendants waived". [13]

Islamic law

The presumption of innocence is fundamental to Islamic law where the principle that the onus of proof is on the accuser or claimant is strongly held, based on a hadith documented by Imam Nawawi. [14] "Suspicion" is also highly condemned, this also from a hadith documented by Imam Nawawi [15] as well as Imam Bukhari [16] and Imam Muslim. [17]

After the time of Muhammad, the fourth Caliph Ali ibn Abi Talib has also been cited to say, "Avert the prescribed punishment by rejecting doubtful evidence." [18]

Medieval European law

After the collapse of the Western Roman Empire, the West began to practice feudal law, which was a synthesis of aspects of Roman law as well as some Germanic customs according to the new elite, including presumed guilt. For instance, the accused could prove his innocence by having twelve people swear that he could not have done what he was accused of. In practice, this tended to favor the nobility over the lower classes, whose witnesses risked being seen as less credible. [19]

Trials by ordeal were common from the 6th century until the early 13th century, and were known to continue into the 17th century in the form of witch-hunts. Whilst common in early Germanic law, compurgation was formally adopted in Rome by Pope Innocent III in 1215 at the Fourth Lateran Council and trials by fire and water specifically were forbidden. This was during the period of development of the jus commune , the canon law of the Catholic Church influenced the common law during the medieval period [20]

In the early 13th century, Louis IX of France banned all trials by ordeal and introduced the presumption of innocence to criminal procedures. [21] This did not last for long and the institutional use of torture, called "question préalable" and subdivided into "question ordinaire" (light torture) and "question extraordinaire" (severe torture), applied at the judge's discretion against individuals suspected of a crime, was to last up to the eve of the French Revolution. [22]

Meaning

Sir William Garrow coined the phrase "presumed innocent until proven guilty", insisting that defendants' accusers and their evidence be thoroughly tested in court. William Garrow2.jpg
Sir William Garrow coined the phrase "presumed innocent until proven guilty", insisting that defendants' accusers and their evidence be thoroughly tested in court.

"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. [23] This is often expressed in the phrase "presumed innocent until proven guilty", coined by the British barrister Sir William Garrow (1760–1840) [24] during a 1791 trial at the Old Bailey. 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. [25] In 1935, in its judgment of Woolmington v Director of Public Prosecutions , the English Court of Appeal would later describe this concept as being 'the golden thread' running through the web of English criminal law. Garrow's statement was the first formal articulation of this. [26]

The presumption of innocence was originally expressed by the French cardinal and canonical jurist Jean Lemoine in the phrase "item quilbet presumitur innocens nisi probetur nocens (a person is presumed innocent until proven guilty)", based on the legal inference that most people are not criminals. [27] This referred not merely to the fact that the burden of proof rests on the prosecution in a criminal case, but the protections which a defendant should be given: prior notice of the accusation being made against them, the right of confrontation, right to counsel, etc. [28] It is literally considered favorable evidence for the accused that automatically attaches at trial. [29] 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. [27] To ensure this legal protection is maintained, a set of three related rules govern the procedure of criminal trials. The presumption means: [23]

  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.

Blackstone's ratio as expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England , published in the 1760s, said that:

It is better that ten guilty persons escape than that one innocent suffer. [30]

The idea subsequently became a staple of legal thinking in Anglo-Saxon jurisdictions and continues to be a topic of debate.

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 :

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...

Fundamental right

This right is considered important enough in modern democracies, constitutional monarchies and republics that many have explicitly included it in their legal codes and constitutions:

Modern practices

United Kingdom

Article 48 of the Charter of Fundamental Rights of the European Union affirms the right to the presumption of innocence. 07CFREU-Article48.jpg
Article 48 of the Charter of Fundamental Rights of the European Union affirms the right to the presumption of innocence.

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 to do so, it is an offence. [38] Citizens can therefore be convicted and imprisoned without any evidence that the encrypted material was unlawful. 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 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. [39]

Canada

In Canadian law, the presumption of innocence has been reinforced in certain instances. The Criminal Code previously [40] contained numerous provisions according to which defences to certain offences were subject to a reverse onus: that is, if an accused wishes to make that defence, they had to prove the facts of the defence to a balance of probabilities, rather than the Crown having to disprove the defence beyond a reasonable doubt. This meant that an accused in some circumstances might be convicted even if a reasonable doubt existed about their guilt. In several cases, various reverse onus provisions were found to violate the presumption of innocence provision of the Canadian Charter of Rights and Freedoms. They were replaced with procedures in which the accused merely had to demonstrate an "air of reality" to the proposed defence, following which the burden shifted to the Crown to disprove the defence.

Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, received Royal Assent in December 2018. Among other things, it eliminated several reverse onus provisions from the Criminal Code, some of which had previously been found unconstitutional, and others pre-emptively in order to avoid further Charter challenges. [41]

See also

Related Research Articles

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A plea bargain is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or nolo contendere. This may mean that the defendant will plead guilty to a less serious charge, or to one of the several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.

Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of the defendant. Criminal procedure can be either in form of inquisitorial or adversarial criminal procedure.

In a legal dispute, one party has the burden of proof to show that they are correct, while the other party has no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the dispute.

<span class="mw-page-title-main">Acquittal</span> The legal result of a verdict of not guilty

In common law jurisdictions, an acquittal means that the prosecution has failed to prove that the accused is guilty beyond a reasonable doubt of the charge presented. It certifies that the accused is free from the charge of an offense, as far as criminal law is concerned. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the United States, an acquittal prohibits the retrial of the accused for the same offense, even if new evidence surfaces that further implicates the accused. The effect of an acquittal on criminal proceedings is the same whether it results from a jury verdict or results from the operation of some other rule that discharges the accused. In other countries, like Australia and the UK, the prosecuting authority may appeal an acquittal similar to how a defendant may appeal a conviction — but usually only if new and compelling evidence comes to light or the accused has interfered with or intimidated a juror or witness.

Not proven is a verdict available to a court of law in Scotland. Under Scots law, a criminal trial may end in one of three verdicts, one of conviction ("guilty") and two of acquittal.

Beyond (a) reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the standard of balance of probabilities commonly used in civil cases because the stakes are much higher in a criminal case: a person found guilty can be deprived of liberty or, in extreme cases, life, as well as suffering the collateral consequences and social stigma attached to a conviction. The prosecution is tasked with providing evidence that establishes guilt beyond a reasonable doubt in order to get a conviction; albeit prosecution may fail to complete such task, the trier-of-fact's acceptance that guilt has been proven beyond a reasonable doubt will in theory lead to conviction of the defendant. A failure for the trier-of-fact to accept that the standard of proof of guilt beyond a reasonable doubt has been met thus entitles the accused to an acquittal. This standard of proof is widely accepted in many criminal justice systems, and its origin can be traced to Blackstone's ratio, "It is better that ten guilty persons escape than that one innocent suffer."

<i>Woolmington v DPP</i> House of Lords law case

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<span class="mw-page-title-main">Guilt (law)</span> State of being responsible for a crime per the states rules

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Following the common law system introduced into Hong Kong when it became a Crown colony, Hong Kong's criminal procedural law and the underlying principles are very similar to the one in the UK. Like other common law jurisdictions, Hong Kong follows the principle of presumption of innocence. This principle penetrates the whole system of Hong Kong's criminal procedure and criminal law. Viscount Sankey once described this principle as a 'golden thread'. Therefore, knowing this principle is vital for understanding the criminal procedures practised in Hong Kong.

<i>S v Singo</i> South African legal case

S v Singo is an important case in South African criminal procedure, heard in the Constitutional Court on 12 March 2002, with judgment delivered on 12 June 2002. The presiding officers were Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ. JG Wasserman SC appeared for the applicant at the request of the Court, and JA van S d'Oliveira SC for the State.

In New Zealand, the presumption of supply is a rebuttable presumption in criminal law which is governed by the New Zealand Misuse of Drugs Act 1975. It provides an assumption in drug-possession cases that if a person is found with more than a specified amount of a controlled drug, they are in possession of it for the purpose of supply or sale. This shifts the burden of proof from the Crown to the person found with the drug, who must prove that they possessed it for personal use and not for supply. Note that once the burden of proof has shifted, the burden is one on the balance of probabilities. This presumption exists to make prosecution for supplying drugs easier.

A presumption of guilt is any presumption within the criminal justice system that a person is guilty of a crime, for example a presumption that a suspect is guilty unless or until proven to be innocent. Such a presumption may legitimately arise from a rule of law or a procedural rule of the court or other adjudicating body which determines how the facts in the case are to be proved, and may be either rebuttable or irrebuttable. An irrebuttable presumption of fact may not be challenged by the defense, and the presumed fact is taken as having been proved. A rebuttable presumption shifts the burden of proof onto the defense, who must collect and present evidence to prove the suspect's innocence, in order to obtain acquittal.

<i>S v Bhulwana; S v Gwadiso</i> South African legal case

In S v Bhulwana; S v Gwadiso, the Constitutional Court of South Africa established the unconstitutionality of a reverse onus provision applying to the offence of drug dealing under the Drugs and Drug Trafficking Act, 1992. Under section 21(1)(a)(i) of the Act, accused persons found in possession of over 150 grams of dagga were presumed guilty of dealing in dagga unless their innocence was proved in court. Handing down a unanimous judgment on 29 November 1995, Justice Kate O'Regan held that this provision violated the presumption of innocence and therefore the constitutional right to a fair trial.

References

Citations

  1. ↑ "Digesta seu Pandectae 22.3.2". Grenoble: Université Pierre-Mendès-France. Archived from the original on 2012-03-28. Retrieved 2010-10-13.
  2. ↑ Watson, Alan, ed. (1998) [1985]. "22.3.2". The Digest of Justinian. Philadelphia: University of Pennsylvania Press. ISBN   0-8122-1636-9.
  3. ↑ See Bury, p. 527
  4. ↑ Decree-Law 3689|date=August 2012
  5. ↑ CRIMINAL PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA|date=August 2001
  6. 1 2 Code de procédure pénale, article préliminaire (in French)
  7. ↑ "ForoEuropo Italia". Foroeuropeo.it. Archived from the original on 2010-06-11. Retrieved 2010-10-13.
  8. ↑ "Assomedici.It". Assomedici.It. 1993-01-29. Retrieved 2010-10-13.
  9. ↑ People vs. Masalihit, decision of the Supreme Court of The Philippines Archived 2007-09-29 at the Wayback Machine
  10. ↑ "National Constitutional Law Related to Article 48 – Presumption of Innocence and Right to Defence". European Union Agency for Fundamental Rights. Archived from the original on 2012-07-11. Retrieved 2011-05-16.
  11. ↑ "Constitution of Romania, Article 23" . Retrieved 2013-06-13.
  12. ↑ Valentin Anders (2010-09-08). "Latin legal maxims in Spanish". Latin.dechile.net. Retrieved 2010-10-13.
  13. ↑ Aaron Kirschenbaum, Double Jeopardy and Entrapment in Jewish Law, 3 Israel Yearbook on Human Rights, Rts. 202 (1973), p. 211.
  14. ↑ Imam Nawawi. 1977. An-Nawawi’s Forty Hadith (Second Edition English Translation by Ezzedin Ibrahim). Damascus: Holy Koran Pub. House, Hadith No. 33
  15. ↑ Riyaadus Shaaliheen, Hadith No. 1573
  16. ↑ Sahih Al-Bukhari (English Version), Vol. 8, Book 73, Hadith 90
  17. ↑ Sahih Muslim (English Version), Book 32, Hadith 6214
  18. ↑ Imam ibn Hajar's Bulugh al-Maram (English Version), Book 10, Hadith 1260
  19. ↑ "Law in the Middle Ages". The Finer Times. 29 May 2012. Retrieved January 16, 2018.
  20. ↑ Friedman, Lawrence M., American Law: An Introduction (New York: W.W. Norton & Company, 1984), pg. 70.
  21. ↑ Villehardouin, G. de., Joinville, J. (1955–1908). Memoirs of the Crusades. London: J.M. Dent. p. 184 (known as Scecedin)
  22. ↑ E. Roger Clark, Le siècle des Lumières face à la torture
  23. 1 2 Mueller, Christopher B.; Laird C. Kirkpatrick (2009). Evidence; 4th ed. Aspen (Wolters Kluwer). ISBN   978-0-7355-7968-2. pp. 133–34.
  24. ↑ Moore, Christopher (1997). The Law Society of Upper Canada and Ontario's lawyers, 1797–1997. University of Toronto Press. ISBN   0-8020-4127-2.
  25. ↑ Rembar, Charles (1980). The Law of the Land . New York: Simon & Schuster. ISBN   9780671243227.
  26. ↑ The Secret Barrister (2018). Stories of the Law and How It's Broken. London: Macmillan. p. 41.
  27. 1 2 Words and Phrases 1914, p. 1168
  28. ↑ Innocent Until Proven Guilty: The Origins of a Legal Maxim Kenneth Pennington A Ennio Cortese (3 Volumes. Roma: Il Cigno Galileo Galilei Edizioni, 2001)
  29. ↑ 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"
  30. ↑ "Commentaries on the laws of England". J.B. Lippincott Co., Philadelphia, 1893.
  31. ↑ The Presumption of Guilt in the Investigation of Tax Evasion Crimes, Juridical Tribune, Vol. 8, Issue 1 (March 2018), p. 33.
  32. ↑ "Your right to a fair trial". www.citizensadvice.org.uk. Retrieved 2023-02-14.
  33. ↑ I/A Court H.R., Case of Zegarra Marín v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of February 15, 2017. Series C No. 331: so, "the Court highlighted that to guarantee the presumption of innocence, especially as regards criminal conviction by trial, to reasoned judgment is imperative. It must state the sufficiency of the prosecution's evidence, observe the rules of sound judicial discretion in evaluating the evidence, including that which could generate doubt as to criminal responsibility, and lay out the final findings of the assessment of evidence. Only then can a trial court disprove the presumption of innocence and sustain a conviction beyond reasonable doubt. Where there is any doubt, the presumption of innocence and the principle of in dubio pro reo should play a decisive role in the judgment".
  34. ↑ Code de procédure pénale, article 304 (in French).
  35. ↑ For example, William Safire claimed as much in the New York Times in 1992; his assertion was rebutted in a letter to the editor by a law professor at Cleveland State University: Davis, Michael H. (23 May 1992). "French Law Presumes Accused Innocent". New York Times . Retrieved 10 May 2017.
  36. ↑ "The Italian Constitution" (PDF). The official website of the Presidency of the Italian Republic. Archived from the original on 2016-11-27.
  37. ↑ New Zealand Bill of Rights Act 1990 No 109 (as at 01 July 2013), Public Act 25 Minimum standards of criminal procedure – New Zealand Legislation
  38. ↑ "OPSI.gov.uk". OPSI.gov.uk. Retrieved 2010-10-13.
  39. ↑ "legislation.gov.uk". legislation.gov.uk. Retrieved 2011-04-27.
  40. ↑ Tollefson, E. A., The Canadian Bill of Rights and the Canadian Courts, Saskatchewan Bar Review & Law Society's Gazette, Vol. 26, Issue 4 (December 1961), pp. 106-111.
  41. ↑ Government of Canada, Department of Justice (7 June 2017). "Questions and Answers - Cleaning up the Criminal Code, Clarifying and Strengthening Sexual Assault Law, and Respecting the Charter". www.justice.gc.ca. Retrieved 31 July 2019.

Sources

  • "Judicial and Statutory Definitions of Words and Phrases". St. Paul, MN: West Publishing Co. 1914.{{cite journal}}: Cite journal requires |journal= (help)
  • Singh, Rahul, Reverse onus Clauses: A Comparative Law Perspective, Student Advocate, Vol. 13, pp. 148–172.
  • Bury, J. B. (1893). A History of the Roman Empire from its Foundation to the Death of Marcus Aurelius.
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