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Presumption of innocence
Presumption of innocence is an essential right that the accused enjoys in criminal trials in all countries respecting human rights. It states that the accused is presumed to be innocent until it has been declared guilty by a court. The burden of proof is thus on the prosecution, which has to convince the court of 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 — presumption of guilt.
A fundamental right
This right is so important in modern democracies that many have explicitly included it in their legal codes and constitutions:
- In France, article 9 of the Declaration of the Rights of Man and of the Citizen, of constitutional value, says "Every man is supposed innocent until having been declared guilty." and the preliminary article of the code of criminal procedure says "any suspected or prosecuted person is presumed to be innocent until his guilt has been established". The jurors' oath reiterates this assertion.
- 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
- 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 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, including all members of the European Union.
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.
- Courts may have a racist bias, in which a suspect of certain "inferior" ethnic groups is by default considered to be probably guilty. Conversely, a person of a "superior" group suspected of having committed a crime on a person of an "inferior" group may be supposed, by default, to have acted in self-defense. This was, for instance, the case in southern states of the United States of America when these had institutional segregation.
- Courts may prefer the testimonies of persons of certain ethnic groups, gender, or professions over those of others, regardless of actual circumstances. For instances, courts may by default believe the version of police officers. This is especially prevalent in the United States in situations where the only witnesses are the defendant and the apprehending police officer.
- In Europe, 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. Also, while journalists may refer to suspects as "suspects" or "defendants", publishing of the prosecution's case without proper defense argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitue undeserved punishment for them, since it in practices ruins the reputation of those people without an actual conviction.
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.
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 inquisitorial system is less biased than the adversarial system, since the judge supervising the case is independent and bound by law to direct his enquiry both in favor or against the guilt of any suspect, compared to a prosecutor in an adversarial system, who will only look for evidence pointing to guilt and whose re-appointment may depend on the number of successful prosecution he has 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.
- The History of Presumed Innocence
- Guilty Men, by Alexander Volokh
- Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394
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