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 In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had 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 ...

is thus on the

prosecution A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...

, which must present compelling evidence to the

trier of fact A trier of fact or finder of fact is a person or group who determines which facts are available in a legal proceeding (usually a trial) and how relevant they are to deciding its outcome. To determine a fact is to decide, from the evidence present ...

(a judge or a jury). If the prosecution does not prove the charges true, then the person is

acquitted 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 ...

of the charges. The prosecution must in most cases prove that the accused is guilty

beyond a reasonable doubt 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 balance of probabilities standard commonly used in civil cases, becau ...

. If reasonable doubt remains, the accused must be acquitted. The opposite system is a

presumption of guilt 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 aris ...

. 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 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 ...

is a legal right of the accused in a

criminal trial 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 ...

. 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 Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565. His reign is marked by the ambitious but only partly realized '' renov ...

(22.3.2) provides, as a general rule of evidence: "Proof lies on him who asserts, not on him who denies". It is there attributed to the second and third century jurist

Julius Paulus Prudentissimus Julius Paulus ( el, Ἰούλιος Παῦλος; fl. 2nd century and 3rd century AD), often simply referred to as Paul in English, was one of the most influential and distinguished Roman jurists. He was also a praetorian prefect under the Roma ...

. It was introduced in Roman criminal law by emperor Antoninus Pius.See Bury, p. 527 A

civil law system Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as th ...

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, China, France,Code de procédure pénale, article préliminaire
Italy, Philippines, Poland, Romania and Spain.

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".

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 Abū Zakariyyā Yaḥyā ibn Sharaf al-Nawawī ( ar, أبو زكريا يحيى بن شرف النووي;‎ (631A.H-676A.H) (October 1230–21 December 1277), popularly known as al-Nawawī or Imam Nawawī, was a Sunni Shafi'ite jurist and ha ...

. "Suspicion" is also highly condemned, this also from a hadith documented by Imam Nawawi as well as

Imam Bukhari Imam (; ar, إمام '; plural: ') is an Islamic leadership position. For Sunni Muslims, Imam is most commonly used as the title of a worship leader of a mosque. In this context, imams may lead Islamic worship services, lead prayers, serv ...

and

Imam Muslim Abū al-Ḥusayn ‘Asākir ad-Dīn Muslim ibn al-Ḥajjāj ibn Muslim ibn Ward ibn Kawshādh al-Qushayrī an-Naysābūrī ( ar, أبو الحسين عساكر الدين مسلم بن الحجاج بن مسلم بن وَرْد بن كوشاذ ...

. After the time of Muhammad, the fourth

Caliph A caliphate or khilāfah ( ar, خِلَافَة, ) is an institution or public office under the leadership of an Islamic steward with the title of caliph (; ar, خَلِيفَة , ), a person considered a political-religious successor to th ...

Ali ibn Abi Talib ʿAlī ibn Abī Ṭālib ( ar, عَلِيّ بْن أَبِي طَالِب; 600 – 661 CE) was the last of four Rightly Guided Caliphs to rule Islam (r. 656 – 661) immediately after the death of Muhammad, and he was the first Shia Imam. ...

has also been cited to say, "Avert the prescribed punishment by rejecting doubtful evidence."

Middle Ages in Europe

Western Europe

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. 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 Compurgation, also called trial by oath, wager of law, and oath-helping, was a defence used primarily in medieval law. A defendant could establish their innocence or nonliability by taking an oath and by getting a required number of persons, typi ...

was formally adopted in Rome by Pope Innocent III in 1215 at the

Fourth Lateran Council The Fourth Council of the Lateran or Lateran IV was convoked by Pope Innocent III in April 1213 and opened at the Lateran Palace in Rome on 11 November 1215. Due to the great length of time between the Council's convocation and meeting, many ...

and trials by fire and water specifically were forbidden. This was during the period of development of the ''

jus commune ''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" i ...

'', the

canon law of the Catholic Church The canon law of the Catholic Church ("canon law" comes from Latin ') is "how the Church organizes and governs herself". It is the system A system is a group of interacting or interrelated elements that act according to a set of rules to form a ...

influenced the common law during the medieval period In the early 13th century,

Louis IX of France Louis IX (25 April 1214 – 25 August 1270), commonly known as Saint Louis or Louis the Saint, was King of France from 1226 to 1270, and the most illustrious of the Direct Capetians. He was crowned in Reims at the age of 12, following the ...

banned all

trials by ordeal Trial by ordeal was an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience. In medieval Europe, like trial by combat, tr ...

and introduced the presumption of innocence to criminal procedures. It was during the seventh crusade that he had witnessed the presumption of innocence in practice by the ruling Muslims and sought to adopt and implement this law on his return to France '. As a reformer, this and other legal and economic reforms led to him being the only canonized king of France.

Eastern Europe

Following the aforementioned Roman law of Justinian, who lived at the dawn of the medieval era, the

Byzantine Empire The Byzantine Empire, also referred to as the Eastern Roman Empire or Byzantium, was the continuation of the Roman Empire primarily in its eastern provinces during Late Antiquity and the Middle Ages, when its capital city was Constantinopl ...

generally continued along his legal code which includes presumption of innocence. This also influenced nearby states within its cultural sphere, such as Eastern Orthodox, Slavic principalities like Serbia.

Meaning

"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. pp. 133–34. This is often expressed in the phrase "presumed innocent until proven guilty", coined by the British barrister

Sir William Garrow Sir William Garrow (13 April 1760 – 24 September 1840) was an English barrister, politician and judge known for his indirect reform of the advocacy system, which helped usher in the adversarial court system used in most common law nations ...

(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 The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to ...

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. The presumption of innocence was originally expressed by the French cardinal and canonical jurist

Jean Lemoine Jean Lemoine, Jean Le Moine, Johannes Monachus (1250, Crécy-en-Ponthieu – 22 August 1313, Avignon) was a French canon lawyer, Cardinal, bishop of Arras and papal legate. He served Boniface VIII as representative to Philip IV of France, and fou ...

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.''Words and Phrases'' 1914, p. 1168 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 Notice is the legal concept describing a requirement that a party be aware of legal process affecting their rights, obligations or duties. There are several types of notice: public notice (or legal notice), actual notice, constructive notice ...

of the accusation being made against them, the

right of confrontation The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that ''"in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."'' The right only applies to crim ...

right to counsel In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal exp ...

, etc. It is literally considered favorable evidence for the accused that automatically attaches at trial. It requires that the

, 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.

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 ...

as expressed by the English jurist

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family in ...

in his seminal work, '' Commentaries on the Laws of England'', published in the 1760s, said that: The idea subsequently became a staple of legal thinking in

Anglo-Saxon The Anglo-Saxons were a cultural group who inhabited England in the Early Middle Ages. They traced their origins to settlers who came to Britain from mainland Europe in the 5th century. However, the ethnogenesis of the Anglo-Saxons happened wit ...

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 is a landmark House of Lords case, where the presumption of innocence was re-consolidated (for application across the Commonwealth). In criminal law the case identifies the metaphorical "golden thread" running through that domain of the presump ...

'':

Fundamental right

This right is considered important enough in modern democracies,

constitutional monarchies A constitutional monarchy, parliamentary monarchy, or democratic monarchy is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in decision making. Constitutional monarchies dif ...

and republics that many have explicitly included it in their legal codes and constitutions: * The Universal 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." *The International 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 the Rome 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." * 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 ...

of the

Council of Europe The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a ...

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 A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...

and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course. Nevertheless, this assertion is iterated ''verbatim'' in Article 48 of the

Charter of Fundamental Rights of the European Union The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly procla ...

. * 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 The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into forc ...

make the

Inter-American Court The Inter-American Court of Human Rights (IACHR or IACtHR) is an international court based in San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it was formed by the American Convention on Human Rights, a human r ...

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 Canada, section 11(d) of the

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...

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 the

Colombian constitution The Political Constitution of Colombia of 1991 ( es, Constitución Política de Colombia de 1991), is the Constitution of the Republic of Colombia. It was promulgated in Constitutional Gazette number 114 on Thursday, July 4, 1991, and is also ...

, 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 The Declaration of the Rights of Man and of the Citizen (french: Déclaration des droits de l'homme et du citoyen de 1789, links=no), set by France's National Constituent Assembly in 1789, is a human civil rights document from the French Revol ...

of 1789, which has force as

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princi ...

al 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; note that only the most serious crimes are tried by jury in France). However, there exists a popular misconception that under French law, the accused is presumed guilty until proven innocent. * In Iran, Article 37 of the

Constitution of the Islamic Republic of Iran The Constitution of the Islamic Republic of Iran ( fa, قانون اساسی جمهوری اسلامی ایران, ''Qanun-e Asasi-ye Jomhuri-ye Eslâmi-ye Iran'') was adopted by referendum on 2 and 3 December 1979, and went into force replac ...

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". * In Italy, the second paragraph of Article 27 of the

Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princi ...

states: "A defendant shall be considered not guilty until a final sentence has been passed." * In Romania, article 23 of the

states that "any person shall be presumed innocent until found guilty by a final decision of the court". * The

Constitution of Russia The Constitution of the Russian Federation () was adopted by national referendum on 12 December 1993. Russia's constitution came into force on 25 December 1993, at the moment of its official publication, and abolished the Soviet system of gov ...

, 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 The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Gove ...

, section 35(3)''(h)'' of the

Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...

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." * Although the

Constitution of the United States The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nation ...

does not cite it explicitly, presumption of innocence is widely held to follow from the Fifth, Sixth, and Fourteenth Amendments. The case of ''

Coffin v. United States ''Coffin v. United States'', 156 U.S. 432 (1895), was an appellate case before the United States Supreme Court in 1895 which established the presumption of innocence of persons accused of crimes. F. A. Coffin and Percival B. Coffin, plaintiffs i ...

'' (1895) established the presumption of innocence of persons accused of crimes. See also ''

In re Winship ''In re Winship'', 397 U.S. 358 (1970), was a United States Supreme Court decision that held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the ...

.'' * In New Zealand, the New 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".

Modern practices

United Kingdom

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.

Canada

Canadian law The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous l ...

, the presumption of innocence has been reinforced in certain instances. The ''

Criminal Code A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...

'' previously contained numerous provisions according to which defences to certain offences were subject to a

reverse onus A reverse onus clause is a provision within a statute that shifts the burden of proof onto the individual specified to disprove an element of the information. Typically, this particular provision concerns a shift in burden onto a defendant in eith ...

: that is, if an accused wishes to make that defence, they had to prove the facts of the defence to a

balance of probabilities In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had 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 ...

, 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

. 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 Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in othe ...

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.

References

Citations

Sources

* * 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.

External links

The Presumption of Innocence in the French and Anglo-American Legal Traditions

The History of Presumed Innocence

Kenneth Pennington, ''Innocent Until Proven Guilty: The Origins of a Legal Maxim'', 63 JURIST: STUD. CHURCH L. & MINISTRY 106 (2003).
{{Authority control Criminal procedure Legal doctrines and principles Doubt Human rights