Thepresumption of innocence is alegal principle that every personaccused of anycrime is consideredinnocent until provenguilty. Under the presumption of innocence, thelegal burden of proof is thus on theprosecution, which must present compelling evidence to thetrier of fact (ajudge or ajury). If the prosecution does not prove the charges true, then the person isacquitted of the charges. The prosecution must in most cases prove that the accused is guiltybeyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is apresumption of guilt.
The sixth-centuryDigest ofJustinian (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 juristJulius Paulus. It was introduced in Roman criminal law by emperorAntoninus Pius.[3]
According toTalmud, "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]
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 ahadith documented byImam Nawawi.[14] "Suspicion" is also highly condemned, this also from a hadith documented by Imam Nawawi[15] as well asImam Bukhari[16] andImam Muslim.[17]
After the time ofMuhammad, the fourthCaliphAli ibn Abi Talib has also been cited to say, "Avert the prescribed punishment by rejecting doubtful evidence."[18]
After the collapse of theWestern Roman Empire, the West began to practicefeudal law, which was a synthesis of aspects of Roman law as well as someGermanic 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 thenobility 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 theFourth Lateran Council and trials by fire and water specifically were forbidden. This was during the period of development of thejus commune, thecanon law of the Catholic Church influenced the common law during the medieval period[20]
In the early 13th century,Louis IX of France banned alltrials 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]
SirWilliam 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 BritishbarristerSir William Garrow (1760–1840)[24] during a 1791 trial at theOld 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 ofWoolmington v Director of Public Prosecutions, theEnglish 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 andcanonical juristJean 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: priornotice of the accusation being made against them, theright 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 thetrier 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]
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.
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.
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.
It is better that ten guilty persons escape than that one innocent suffer.[30]
The idea subsequently became a staple of legal thinking inAnglo-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 byLord SankeyLC inWoolmington 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...
TheUniversal Declaration of Human Rights, article 11, states: "Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defense."
TheInternational Covenant on Civil and Political Rights, art. 14, paragraph 2 states that "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law." The presumption of innocence is also expressly regulated in Art. 66 of theRome Statute of the International Criminal Court, according to which "Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law."[31]
Articles 8 (1) and 8 (2) (right to a fair trial), in conjunction with Article 1 (1) (obligation to respect and ensure rights without discrimination), of theAmerican Convention on Human Rights make theInter-American Court to stress that "the presumption of innocence is a guiding principle in criminal trials and a foundational standard for the assessment of the evidence. Such assessment must be rational, objective, and impartial in order to disprove the presumption of innocence and generate certainty about criminal responsibility. ... The Court reiterated that, in criminal proceedings, the State bears the burden of proof. The accused is not obligated to affirmatively prove his innocence or to provide exculpatory evidence. To provide counterevidence or exculpatory evidence is a right that the defence may exercise in order to rebut the charges, which in turn the accusing party bears the burden of disproving".[33]
InBrazil, article 5th, item LVII of theConstitution states: "no one will be considered guilty until the final criminal sentence is reached".
InCanada,section 11(d) of theCanadian 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 theColombian constitution, Title II, Chapter 1, Article 29 states that "Every person is presumed innocent until proven guilty according to the law".
InFrance, article 9 of theDeclaration of the Rights of Man and of the Citizen of 1789, which has force asconstitutional 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"[6] and thejurors' oath repeats this assertion (article 304; note that only the most serious crimes are tried by jury in France).[34] A popular misconception is that, under French law, the accused is presumed guilty until proven innocent.[35]
InIran, Article 37 of theConstitution of the Islamic Republic of Iran states: "Innocence is to be presumed, and no one is to be held guilty of a charge unless his or her guilt has been established by a competent court".
InItaly, the second paragraph of Article 27 of theConstitution states: "A defendant shall be considered not guilty until a final sentence has been passed."[36]
In Romania, article 23 of theConstitution states that "any person shall be presumed innocent until found guilty by a final decision of the court".
TheConstitution 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".
In theSouth African Constitution, section 35(3)(h) of theBill 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."
InNew Zealand, theNew Zealand Bill of Rights 1990 provides at section 25 (c) "Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: (c) the right to be presumed innocent until proved guilty according to law".[37]
In the European Union, in addition to the Charter of Fundamental Rights, presumption of innocence is also protected through Directive (EU) 2016/343 of the European Parliament and of the Council of the 9th March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to bepresent at the trial in criminal proceedings (Directive). Article 3 states that: Member States shall ensure that suspects and accused persons are presumed innocent until proved guilty according to law. The goal of the directive is stated in article 1. The scope is to lay down common minimum rules concerning:(a) certain aspects of the presumption of innocence in criminal proceedings;(b) the right to be present at the trial in criminal proceedings.
In theUnited 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]
InCanadian law, the presumption of innocence has been reinforced in certain instances. TheCriminal Code previously[40] contained numerous provisions according to which defences to certain offences were subject to areverse onus: that is, if an accused wishes to make that defence, they had to prove the facts of the defence to abalance 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. Inseveral cases, various reverse onus provisions were found to violate the presumption of innocence provision of theCanadian 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, receivedRoyal Assent in December 2018. Among other things, it eliminated several reverse onus provisions from theCriminal Code, some of which had previously been found unconstitutional, and others pre-emptively in order to avoid furtherCharter challenges.[41]
^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 ofin dubio pro reo should play a decisive role in the judgment".
^For example,William Safire claimed as much in theNew 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. Retrieved10 May 2017.
^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.
