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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 Innocence is a lack of guilt, with respect to any kind of crime, or wrongdoing. In a legal context, innocence is to the lack of legal guilt of an individual, with respect to a crime. In other contexts, it is a lack of experience. In relatio ...
, in order to obtain
acquittal In common law jurisdictions, an acquittal 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 ...
. Rebuttable presumptions of fact, arising during the course of a trial as a result of specific factual situations (for example that the accused has taken flight), are common; but an opening presumption of guilt based on the mere fact that the suspect has been charged is considered illegitimate in many countries and contrary to international human rights standards. In the United States, an irrebuttable presumption of guilt is considered to be unconstitutional. Informal and legally illegitimate presumptions of guilt may also arise from the attitudes or prejudices of those such as judges, lawyers or police officers who administer the system. Such presumptions may result in suspects who are innocent being brought before a court to face criminal charges, with a risk of improperly being found guilty.


Definition

According to Herbert L. Packer, "It would be a mistake to think of the presumption of guilt as the opposite of the
presumption of innocence 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 presen ...
that we are so used to thinking of as the polestar of the criminal process and which... occupies an important position in the Due Process Model." The presumption of guilt prioritizes speed and efficiency over reliability, and prevails when
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...
is absent. In ''State v. Brady'' (1902) 91 NW 801, Weaver J said "'Presumptions of guilt' and 'prima facie' cases of guilt in the trial of a party charged with crime mean no more than that from the proof of certain facts the jury will be warranted in convicting the accused of the offense with which he is charged".


Human rights

In "Director of Public Prosecutions v. Labavarde and Anor", Neerunjun C.J. said that article 11(1) of the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt ...
and article 6(2) of the
Convention for the Protection of Human Rights and Fundamental Freedoms The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
would be infringed if "the whole burden is . . . cast on the defence by the creation of a presumption of guilt on the mere preferment of the criminal charge".


Inquisitorial systems

It is sometimes said that in
inquisitorial system An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
s, a defendant is guilty until proven innocent. It has also been said that this is a myth and a former "common conceit of English lawyers" who asserted this was the case in France. A presumption of guilt is incompatible with the
presumption of innocence 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 presen ...
and moves an accusational system of justice toward the inquisitional.


Common law presumptions

There have existed at least two types of presumption of guilt under the law of England, which arose from a rule of law or a procedural rule of the court or other adjudicating body and determined how the facts in the case were to be proven, and could be either rebuttable or irrebuttable. Those were: *Presumption of guilt arising from the conduct of the party charged *Presumption of guilt arising from the possession of provable stolen property


Consequences

Plea bargain A plea bargain (also plea agreement or plea deal) 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 ...
ing has been said to involve a presumption of guilt. The American Bar Association states that people with limited resources accused of a crime "find themselves trapped by a system that presumes their guilt." Presumption of guilt on the part of investigators may result in
false confession A false confession is an admission of guilt for a crime which the individual did not commit. Although such confessions seem counterintuitive, they can be made voluntarily, perhaps to protect a third party, or induced through coercive interroga ...
s, as was postulated in ''
Making a Murderer ''Making a Murderer'' is an American true crime documentary television series written and directed by Laura Ricciardi and Moira Demos. The show tells the story of Steven Avery, a man from Manitowoc County, Wisconsin, who served 18 years in pri ...
'', an American documentary television series.
Preventive detention Preventive detention is an imprisonment that is putatively justified for non- punitive purposes, most often to prevent (further) criminal acts. Types of preventive detention There is no universally agreed definition of preventive detention, and m ...
, detaining an individual for a crime they may commit, has been said to involve a presumption of guilt, or something very close to one. A
fixed penalty notice In the United Kingdom, a fixed penalty notice (FPN) is a notice giving an individual the opportunity to be made immune from prosecution for an alleged criminal offence in exchange for a fee. Fixed penalty notices were introduced in Britain in the ...
or on-the-spot fine are penalties issued by police for minor offences which are difficult and expensive to appeal.


Unconstitutional, illegitimate and informal presumptions

An irrebuttable presumption of guilt is
unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
in the United States. An arrest, however, often becomes synonymous or "fused" with guilt, postulates Anna Roberts, a United States law professor. In the minds of jurors, the person charged must have done something wrong. In
Japan Japan ( ja, 日本, or , and formally , ''Nihonkoku'') is an island country in East Asia. It is situated in the northwest Pacific Ocean, and is bordered on the west by the Sea of Japan, while extending from the Sea of Okhotsk in the n ...
the criminal justice system has been criticized for its wide use of detentions during which suspects are forced to make false confessions during interrogations. In 2020, Japan's Justice Minister Masako Mori tweeted regarding the need for someone to prove their innocence in a court of law. She later deleted the tweet and called it "verbal gaffe". High Court judge Sir
Richard Henriques Sir Richard Henry Quixano Henriques (born 27 October 1943) is a British retired lawyer and judge who was a Justice of the High Court of England and Wales. Early life and education Henriques was born in south Fylde, educated at Southdene, in So ...
has criticized UK police training and methods which allegedly assert that "only 0.1% of rape allegations are false", and in which all complainants are treated as "victims" from the start. It is difficult to assess the true prevalence of false rape allegations, but it is generally agreed that rape accusations are false at least 2% to 10% of the time, with a greater proportion of cases not being proven to be true or false. The American actor and producer
Jeremy Piven Jeremy Samuel Piven (born July 26, 1965) is an American actor. He is best known for his role as Ari Gold in the comedy series '' Entourage'', for which he won a Golden Globe Award and three consecutive Emmy Awards. He also starred in the Britis ...
has spoken out against the
Me Too movement #MeToo is a social movement against sexual abuse, sexual harassment, and rape culture, in which people publicize their experiences of sexual abuse or sexual harassment. The phrase "Me Too" was initially used in this context on social media in ...
, which he claims, "put lives in jeopardy without a hearing, due process or evidence". Writing about Piven's comment, journalist Brendan O'Neill, suggests that the presumption of innocence is being weakened. An illegitimate presumption of guilt may be caused or motivated by factors such as
racial prejudice Racism is the belief that groups of humans possess different behavioral traits corresponding to inherited attributes and can be divided based on the superiority of one race over another. It may also mean prejudice, discrimination, or antagonism ...
, "
media frenzy Media circus is a colloquial metaphor, or idiom, describing a news event for which the level of media coverage—measured by such factors as the number of reporters at the scene and the amount of material broadcast or published—is perceived to ...
",
cognitive bias A cognitive bias is a systematic pattern of deviation from norm (philosophy), norm or rationality in judgment. Individuals create their own "subjective reality" from their perception of the input. An individual's construction of reality, not the ...
, and others.


See also

*
Blackstone's ratio In criminal law, Blackstone's ratio (also known as Blackstone's formulation) is the idea that: as expressed by the English jurist William Blackstone in his seminal work ''Commentaries on the Laws of England'', published in the 1760s. The i ...
*
Kangaroo court A kangaroo court is a court that ignores recognized standards of law or justice, carries little or no official standing in the territory within which it resides, and is typically convened ad hoc. A kangaroo court may ignore due process and come ...
*
Prosecutor's fallacy The prosecutor's fallacy is a fallacy of statistical reasoning involving a test for an occurrence, such as a DNA match. A positive result in the test may paradoxically be more likely to be an erroneous result than an actual occurrence, even i ...


References


Further reading

*"Prima Facie Presumptions of Guilt" (1972
121
University of Pennsylvania Law Review 531 *Fellman. "Statutory Presumptions of Guilt". The Defendant's Rights Today. University of Wisconsin Press. 1977
p 106
*Martin, "The Burden of Proof as Affected by Statutory Presumptions of Guilt" (1939
17
Canadian Bar Review 37 *{{cite book , last1=Roscoe , first1=H. , last2=Granger , first2=T.C. , title=A Digest of the Law of Evidence in Criminal Cases , year=1840 , url=https://books.google.com/books?id=20hfAAAAcAAJ&pg=PP9 *Wharton
A Treatise on the Criminal Law of the United States
1857. Sections 714, 727, 728
Presumption of Guilt: The Global Overuse of Pretrial Detention published by Open Society Foundations
Criminal procedure Human rights Legal doctrines and principles