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Presumption of Innocence
The presumption of innocence is the legal principle that one is considered innocent until proven guilty.
Under the Justinian Codes and English common law, in criminal proceedings the accused is presumed innocent unless the prosecution presents a high level of evidence as described above. In civil proceedings (like breach of contract) the defendant is initially presumed correct unless the plaintiff presents a moderate level of evidence and thus switches the burden of proof to the defendant.
The sixth-century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat--"Proof lies on him who asserts, not on him who denies". It is there attributed to the second and third century jurist Paul. It was introduced in Roman criminal law by emperor Antoninus Pius.
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".
Similar to that of Roman law, Islamic law also holds the principle that the onus of proof is on the accuser or claimant based on a hadith documented by Imam Nawawi. "Suspicion" is also highly condemned, this also from a hadith documented by Imam Nawawi as well as Imam Bukhari and Imam Muslim.
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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. After the rediscovery of Roman law in the 12th century and the development of the jus commune, the canon law of the Catholic Church influenced the common law during the medieval period through its preservation of Roman law doctrine of the presumption of innocence.
Following the aforementioned Roman law of Justinian, who lived at the dawn of the medieval era, the Eastern Roman Empire generally continued along his legal code which includes presumption of innocence. This also influenced nearby states within its cultural sphere, such as Orthodox, Slavic principalities like Serbia.
By the way, in Civil law «it is the most general concept that everybody (suspect, accused
or not) must be considered innocent until a final judgement finds the person
guilty. But there is another point of view also, - and it usually appears in the international
declarations - which does not connect the stopping of the presumption of innocence
to a final judgement, but it is "satisfied" with any provision that states guilt, that is
based on law. There is a significant difference between the two formulations. The final
judgement usually means the end of the punitive procedure, which can take place many
more years after the time of the crime committed. It can happen, for instance, in the case
of caught in the act, the statements of witnesses, the confession of the offender, the perpetrator
must be presumed innocent for some years till the final judgement is reached
despite the above enlisted facts».
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. This is often expressed in the phrase "innocent until proven guilty", coined by the British barristerSir William Garrow (1760-1840) 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. In 1935, in its judgment of Woolmington v Director of Public Prosecutions, the English Court of Appeal would later describe Garrow's articulation as being the 'golden thread' connecting both the criminal burden of proof and the presumption of innocence within the web of English criminal law.
The presumption of innocence was originally expressed by the French cardinal and canonical 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. However, 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. 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:
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.
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 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 defense.".
(a) 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 the American Convention on Human Rights make the Inter-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. However, 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".
In the Colombian constitution, Title II, Chapter 1, Article 29 states that "Every person is presumed innocent until proven guilty according to the law".
In France, article 9 of the Declaration of the Rights of Man and of the Citizen 1789, which has force as constitutional 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" and the jurors' oath repeats this assertion (article 304). However, there exists a popular misconception that under French law, the accused is presumed guilty until proven innocent.
In Italy, the second paragraph of Article 27 of the Constitution states: "A defendant shall be considered not guilty until a final sentence has been passed."
In Romania, article 23 of the Constitution states that "any person shall be presumed innocent until found guilty by a final decision of the court."
The Constitution 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 the South African Constitution, section 35(3)(h) of the Bill 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."
In New Zealand, the New Zealand Bill of Rights 1990 provides inter alia 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"
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. 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.
In Canadian law, the presumption of innocence has been reinforced in certain instances. The Criminal Code previously 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 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.
^Friedman, Lawrence M., American Law: An Introduction (New York: W.W. Norton & Company, 1984), pg. 70.
^William Wirt Howe, Studies in the Civil Law, and its Relation to the Law of England and America (Boston: Little, Brown, and Company, 1896), pg. 51. «In one of his elaborate orations in the United States Senate Mr. Charles Sumner spoke of "the generous presumption of the common law in favor of the innocence of an accused person;" yet it must be admitted that such a presumption cannot be found in Anglo-Saxon law, where sometimes the presumption seems to have been the other way. And in a very recent case in the Supreme Court of the United States, the case of Coffin, 156 U. S. 432, it is pointed out that this presumption was fully established in the Roman law, and was preserved in the canon law.»
^Vigh Jozsef, Some Basic Principles of Criminal Justice in Hungary, Annales Universitatis Scientiarum Budapestinensis de Rolando Eotvos Nominatae: Sectio Iuridica, Vol. 41-42, p. 143. That is why - in this opinion - it would be «more realistic to establish the guilt by legal means, since the legal mean, theoretically, depending on the law can be established
by the prosecution, the police or other authorities. Connecting the presumption of innocence
to the final judgement renders the basic principle itself meaningless, an empty
phrase. For instance, the people whom the police arrest, take into custody, according to
the presumption of innocence, in all cases did it illegally, in an unlawful manner, thus
rendering it as someone committing a crime, since there is no final judgement/verdict
yet. Furthermore, the first degree sentence qualifies as unlawful if there is an appeal,
since it still finds someone guilty who is under the presumption of innocence. This serious
contradiction is lessened by the interpretation according to which the suspension of
the presumption of innocence is not connected to final judgement but to the "lawful"
^ abMueller, Christopher B.; Laird C. Kirkpatrick (2009). Evidence; 4th ed. Aspen (Wolters Kluwer). ISBN978-0-7355-7968-2. pp. 133-34.
^Moore, Christopher (1997). The Law Society of Upper Canada and Ontario's lawyers, 1797-1997. University of Toronto Press. ISBN0-8020-4127-2.
^The Presumption of Guilt in the Investigation of Tax Evasion Crimes, Juridical Tribune, Vol. 8, Issue 1 (March 2018), p. 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".