Presumption of Innocence

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Contents

Definition

The presumption of innocence is one of the most important and ancient rights embodied in criminal justice systems around the world. The right to be presumed innocent until proved guilty is one of those principle that influences the treatment to which an accused person is subjected from the criminal investigations through the trial proceedings, up to and including the end of the final appeal.[1]

This principle is fundamental for the protection of human rights and must guide the prosecution as well as the defense lawyers.

In this context the term “presumption” should not be confused with the concepts of rebuttable or non rebuttable presumption. In general, a presumption is a rule which permits a court to assume that a fact is true until a preponderance of evidence disproves or outweighs (rebuts) the presumption. A presumption is rebuttable if it can be refuted by factual evidence, on the contrary, it is conclusive or irrebuttable if the presumption does not provide for a way to be disproved.

“Presumption”, in the context of the presumption of innocence, means that the burden of proving the charge is on the state. This guarantees that guilt cannot be declared until the charge has been proven by the state.[2]

The burden of proof is entirely on the state and there is no duty on the defendant to assist the state in discharging its burden. This burden of proof applies to each and every element of the crime. In In re Winship, 397 U.S. 358 (1970), the U.S. Supreme Court made clear that the presumption of innocence is a constitutional principle which is binding on the states, saying that “the Due Process clause protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime charged.”

In many countries the presumption of innocence comes with the corollary that the accused must have the right to remain silent and there must be no need for him to participate in any way to the acquisition of evidence. However, while this happens in some countries such as the United States, the presumption of innocence does not necessarily imply the right to remain silent. For instance, in France the right to remain silent is granted only during the judicial investigation,[3] while during the investigatory detention (garde à vue) conducted by the Police such right is not envisioned.[4]

The presumption of innocence guarantees that the accused has the benefit of doubt, which has to be declared in the final decision by a fact finder. The fact finder must ignore all pre trial evidence of guilt and determine the guilt or innocence evaluating only the evidence presented at the trial.[5]

The presumption of innocence implies that people who are accused of a criminal act must be treated in accordance with this principle. When the circumstances require to have accused people temporarily deprived of their personal liberty they have to be separated from convicted persons, except for unusual circumstances. Defendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals. The media, moreover, should avoid news coverage undermining the presumption of innocence.

Finally, defense lawyers should, always keep in mind the presumption of innocence when representing a client. For example, a lawyer should challenge the legitimacy of any domestic provision attempting to undermine this principle. Also, counsels should attempt to anticipate weaknesses in the prosecution's proof and consider researching and preparing corresponding motions for judgment of acquittal if the prosecution fails to produce evidence on any element of a crime. In deciding on a defense strategy, the lawyer, together with the accused, should consider whether the client's interests are best served by not putting on a defense case, and instead relying on the prosecution's failure to prove guilt beyond a reasonable doubt.

The lawyer should enter a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so.

When is the Presumption of Innocence Triggered?

During the investigation phase, the authorities need only establish a sufficient cause to arrest, and sustain a charge. They do not need to establish the arrested’s guilt beyond a reasonable doubt. However, it is during this time that the arrested is most likely subjected to a violation of his rights, such as the right to remain silent or the right not to be forced to make any statement against himself, and therefore his right to be considered innocent until a final decision is reached.

International Legal Framework

International Instruments

1. The Universal Declaration of Human Rights (UDHR)

The UDHR is, as usual, the starting point. Article 11 (1) says that “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”.

2. International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is the international legal instrument which further elaborated the UDHR provision. Article 14 states that “Everyone charged with a criminal offence shall have the right: (2) to be presumed innocent until proved guilty according to law. (3)(g) Not to be compelled to testify against himself or to confess guilt”. In General Comment n. 13,[6] the Human Rights Committee (HRC) clarified that Article 14 aims, in all its aspects, “at ensuring the proper administration of justice” and it applies before all Courts and Tribunals. The HRC clearly stated that the presumption of innocence is fundamental to the protection of human rights, but in some countries it is expressed “in very ambiguous terms or entails conditions which render it ineffective”. The Comment clarifies that the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt, and therefore all public authorities have to refrain from anticipating the outcome of trial. Further, the presumption of innocence implies a right to be treated in accordance with this principle.

A corollary of the presumption of innocence is that the accused cannot be compelled to testify against himself or to confess guilt. “In considering this safeguard the provisions of article 7 and article 10(1), should be borne in mind”, the HRC said in General Comment n. 13. Furthermore, Article 10(2)(a) ICCPR states that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.” It is again the Human Rights Committee which, in General Comment 21,[7] affirmed that article 10 ICCPR emphasizes the right to be presumed innocent as stated in article 14 when it provides for a different treatment for unconvicted persons, except for extraordinary circumstances.

Non Derogability

In General Comment n. 29,[8] while interpreting article 4 ICCPR, the HRC has clarified that article 4 “is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law” and how it is clear “that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency.” According to the HRC, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, and includes fundamental principles of fair trial, such as the presumption of innocence.

Regional Instruments

All relevant regional human rights instruments envision the right to be presumed innocent until proven guilty.

1. American Convention on Human Rights (ACHR)

Article 8(2) of the ACHR establishes as well that “Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law.”

2. African Charter on Human and People’s Rights

Article 7(b) provides that “The right to be presumed innocent until proved guilty by a competent court or tribunal.”

3. Charter of Fundamental Rights of the European Union

Article 48(1) states that “Everyone who has been charged shall be presumed innocent until proved guilty according to law.”

4. European Convention on Human Rights (ECHR)

Article 6(2) says that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law”, and it is sufficient, “even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty.”[9]

Examples of National Instruments

Cambodia

The accused shall be considered innocent until the court has judged finally on the case (art. 38 Constitution)

China

The client is presumed innocent until judged guilty by a People's Court according to law (art. 12 CPL)

India

No explicit law on presumption of innocence in domestic law nor on the right to remain silent.

Kenya

An accused person enjoys the right to be presumed innocent until the contrary is proved, see, Article 50 (2)(a) of the Constitution. The presumption places upon the government the burden of proving each element of the offense beyond a reasonable doubt. Thus evidence tending to prove some elements of an offence will not be a basis for a finding of guilt. At the time when the prosecution closes its case, if it becomes clear that the evidence presented does not show that the accused proved an offence, counsel for the accused may make a motion requesting for a dismissal, see, Section 306 (1) of the CPC.

Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty(art. 77(2)(a) Constitution)

Rwanda

Every person accused of a crime shall be presumed innocent until his or her guilt has been conclusively proved in accordance with the law in a public and fair hearing in which all the necessary guarantees for defence have been made available. (art. 44 CPC, art. 19 Constitution)

Tanzania

No person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence (art. 13(6)(b) Constitution)

Uganda

Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty (art. 3(a) Constitution)

Zimbabwe

Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty; (art. (18)(3)(a) Constitution)

Notes

  1. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, United Nations, 2003, at 219, available at http://www.ohchr.org/Documents/Publications/training9chapter6en.pdf
  2. In the United States, the term burden of proof comprises two separate burdens. The burden of producing evidence (or the burden of going forward), and the burden of persuasion. The burden of producing evidence is the duty to introduce at least some prima facie evidence in order to compel a fact finder to consider a claim. The burden of persuasion comes into play when the parties have sustained their burdens of producing evidence and only when all the evidence has been introduced. If the trier of fact is in doubt, then the matter must be resolved against the party with the burden of persuasion. The prevailing practice is to allocate the two burdens jointly to one party or another. Various principles are often advanced of where, as a matter of policy, the burden of proof should lie. For example, Courts stated that the burdens should be placed on the party who has the best access to the relevant facts, or it should be placed on the party desiring change. Rule 301 of the Federal Rules of Evidence states that “In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non persuasion, which remains throughout the trial upon the party on whom it was originally cast.”
  3. Article 116 French Criminal Procedural Code
  4. Article 63(1) French Criminal Procedural Code
  5. P.J. Schwikkard, The Presumption of Innocence. What is It?, 11 S. Afr. J. Crim. Just. 396 1998, at 396
  6. Human Rights Committee, General Comment N. 13, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c12563ed0049dfbd?Opendocument
  7. Human Rights Committee, General Comment N. 21, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3327552b9511fb98c12563ed004cbe59?Opendocument
  8. Human Rights Committee, General Comment N. 29, available at http://www.unhchr.ch/tbs/doc.nsf/0/71eba4be3974b4f7c1256ae200517361/$FILE/G0144470.pdf
  9. Eur. Court HR, Case of Allenet de Ribemont v. France, Application no. 15175/89, judgment of 10 February 1995, para. 35, available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=ALLENET&sessionid=61582125&skin=hudoc-en



See Rights of the Accused