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The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat (the burden of proof is on the one who declares, not on one who denies), is the principle that one is considered innocent unless proven guilty. In many nations, presumption of innocence is a legal Rights of the accused in a criminal trial, and it is also regarded as an international human right under the UN's Universal Declaration of Human Rights, article 11. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond reasonable doubt. If reasonable doubt remains, the accused is to be acquitted. Under Justinian Codes and English Common law, the accused is presumed innocent in criminal proceedings, and in civil proceedings (like breach of contract) both sides must issue proof. Under Anglo-American Common Law, the accused is always presumed innocent in all types of proceedings; proof is always the burden of the accuser. Under Islamic Law, a tradition had not been solidified but doubtful evidence should be rejected upon moral principles.
The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat[1]—"Proof lies on him who asserts, not on him who denies".[2] It is there attributed to the second and third century jurist Paul.
Similar to that of Roman Law, Islamic law also holds the principle that the onus of proof is on the accusor or claimant based on a hadith documented by Imam Nawawi.[3] 'Suspicion' is also highly condemned, this also from a hadith documented by Imam Nawawi[4] as well as Imam Bukhari [5] and Imam Muslim.[6]
After the time of Muhammad, the fourth Caliph Ali ibn Abi Thalib has also been cited to say 'Avert the prescribed punishment by rejecting doubtful evidence.' [7] Under western legal systems, like English and Anglo-American Common Law, unlike in Islamic law, this is always left to the Trier of Fact, which was either a high lord (like the King), a judge, or a jury. In Islam this is not established. Often a religious leader or other Elder would sit as Trier of Fact. Other time Trier of Fact can be the prosecutor and executioner if Family Honor is questioned.
After the fall of the Roman Empire, Europe fell back on a Germanic system that presumed guilt. The accused could prove his innocence by having, for example, twelve people swear that he could not have done what he was accused of. This tended to favor the nobility over the lower classes.[8]
In sources from common law jurisdictions, the expression appears in an extended version, in its original form and then in a shortened form (and in each case the translation provided varies). As extended, it is: Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit—"The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof."[9] As found in its original form, it is (as above): Ei incumbit probatio qui dicit, non qui negat—"The proof lies upon the one who affirms, not the one who denies." [10][11] Then, shortened from the original, it is: Ei incumbit probatio qui—"the onus of proving a fact rests upon the man who".[12]
The maxim or its equivalent has been adopted by many civil law systems, including Brazil,[13] France,[14] Italy,[15][16] Philippines,[17] Poland,[18] Romania[19] and Spain.[20]
"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.[21] This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow (1760–1840).[22] 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.[23]
The presumption of innocence is in fact a legal instrument created by the French cardinal and jurist Jean Lemoine to favor the accused based on the legal inference that most people are not criminals.[24] It is literally considered favorable evidence for the accused that automatically attaches at trial.[25] 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.[24] To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:[21]
This right is so important in modern democracies, constitutional monarchies and republics that many have explicitly included it in their legal codes and constitutions:
Some legal systems have employed de jure presumptions of guilt, such as at an order to show cause criminal proceeding. Otherwise, accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce failures to ensure that suspects are treated well and are offered good defence conditions. Typical infringements could include:
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 is certain. For example, they use "suspect" or "defendant" when referring to the suspect, and use "alleged" when referring to the criminal activity that the suspect is accused of.
More subtly, publishing of the prosecution's case without proper defence argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects. Private groups fighting certain abuses may also apply similar tactics, such as publishing the real name, address, and phone number of suspects, or even contacting the suspects' employer, friends and neighbors.
Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights organizations, such as the Canadian Civil Liberties Association consider pre-employment drug testing, while legal, as violating this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent through the test.[31] Similarly, critics argue that prevailing policies of zero tolerance toward sexual harassment or racial discrimination show a strong 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.
Civil rights activists note that the well-meaning practices so adopted may have a deleterious effect on justice being served. An example is the use of a screen in sexual assault cases, which is set up to prevent the complainant from being distressed at the sight of the accused. Where a victim was in fact victimized by the accused, this may be argued to serve the principles of therapeutic justice.[32]
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