Presumption of guilt

{{short description|Presumption that a person is guilty of a crime}}

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.Raj Bhala. [https://books.google.com/books?id=VfW4AAAAIAAJ Modern GATT Law: A Treatise on the General Agreement on Tariffs and Trade]. Sweet & Maxwell. 2005. Page 935. 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, in order to obtain acquittal.{{cite book|last1=Roscoe|first1=H.|url=https://books.google.com/books?id=FBseAAAAMAAJ|title=A Digest of the Law of Evidence in Criminal Cases|last2=Granger|first2=T.C.|last3=Sharswood|first3=G.|publisher=T. & J.W. Johnson|year=1852|access-date=March 11, 2020}}

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),This is how presumptions have traditionally been classified: Zuckerman, The Principles of Criminal Evidence, 1989, pp 112 to 115. An irrebuttable presumption of guilt is unconstitutional in the United States: Florida Businessmen for Free Enterprise v. State of Fla. See [https://books.google.com/books?id=KWooAQAAMAAJ United States Code Annotated]. An example of a rebuttable presumption of guilt is (1983) [https://books.google.com/books?id=D8o2AAAAIAAJ 301] SE 2d 984. "The presumption of guilt arising from the flight of the accused is a presumption of fact": Hickory v United States (1896) 160 United States Reports [https://books.google.com/books?id=LTIyKKVN9YIC&pg=PA408 408] (headnote published 1899). are common; an opening presumption of guilt based on the mere fact that the suspect has been charged is considered illegitimate in many countries,Ralph A Newman (ed). [https://books.google.com/books?id=B784AQAAIAAJ Equity in the World's Legal Systems]. Établissements Émile Bruylant. 1973. p 559. 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 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."{{cite journal| last = Packer| first = Herbert L.| title = Two Models of the Criminal Process| author-link = Herbert L. Packer| journal = University of Pennsylvania Law Review| volume = 113| issue = 1| pages = 1–68| publisher = University of Pennsylvania| location = Pennsylvania| date = November 1964| language = en| url = https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6428&context=penn_law_review| doi = 10.2307/3310562| jstor = 3310562| access-date = 7 May 2019| archive-url = https://web.archive.org/web/20190427071210/https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6428&context=penn_law_review| archive-date = 27 April 2019| url-status = live| url-access = subscription}} The presumption of guilt prioritizes speed and efficiency over reliability, and prevails when due process 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".{{cite book |last1=Wigmore |first1=John Henry |author-link1=John Henry Wigmore |title=A Treatise on the System of Evidence in Trials at Common Law |publisher=Little, Brown and Company |location=Boston |year=1905 |volume=4 |page=3562, Note 1 to section 2513 |url=https://archive.org/details/cu31924020192385/page/n395/mode/1up |via=Internet Archive}}

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 and article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms 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".Director of Public Prosecutions v. Labavarde and Anor. (1965) 44 International Law Reports 104 at [https://books.google.com/books?id=VN_3q2hgBiIC&pg=PA106 106]; [https://books.google.com/books?id=1e8-AQAAIAAJ Mauritius Reports, 1965] 72 at 74, Mauritius, High Court{{cite book | last=Lauterpacht | first=E. | title=International Law Reports | publisher=Cambridge University Press | series=International Law Reports 160 Volume Hardback Set | year=1972 | isbn=978-0-521-46389-8 | url=https://books.google.com/books?id=VN_3q2hgBiIC&pg=PA104 | access-date=March 11, 2020 | page=104}}

Inquisitorial systems

It is sometimes said that in inquisitorial systems, a defendant is guilty until proven innocent.For example, Scottish International, [https://books.google.com/books?id=7QFOAQAAIAAJ vols 6 to 7], p 146 It has also been said that this is a myth,Dammer and Albanese. Comparative Criminal Justice Systems. Wadsworth. 2014. [https://books.google.com/books?id=H6qs5a_6EE8C&pg=PA128 p 128]. as well as a former "common conceit of English lawyers" who asserted this was the case in France.Roberts and Redmayne. Innovations in Evidence and Proof: Integrating Theory, Research and Teaching. Hart Publishing. Oxford and Portland, Oregon. 2007. [https://books.google.com/books?id=rOrbBAAAQBAJ&pg=PA379 p 379].For the origins of this belief in South Africa, see (1970) [https://books.google.com/books?id=pcwPAQAAMAAJ 87] South African Law Journal 413

A presumption of guilt is incompatible with the presumption of innocence and moves an accusational system of justice toward the inquisitional.{{cite journal |last1=Ingraham |first1=Barton L. |title=The Right of Silence, the Presumption of Innocence, the Burden of Proof, and a Modest Proposal |journal=Journal of Criminal Law & Criminology |date=1996 |volume=86 |issue=2 |page=559 |doi=10.2307/1144036 |jstor=1144036 |url=https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6870&context=jclc |access-date=31 August 2021|url-access=subscription }}

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:{{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 | access-date=March 11, 2020 | page=13}}

Presumption of guilt arising from the conduct of the party charged
Presumption of guilt arising from the possession of provable stolen property

Consequences

Plea bargaining has been said to involve a presumption of guilt."5. The Presumption of Guilt" (1973) [https://books.google.com/books?id=s6cxAAAAIAAJ 82] Yale Law Journal 312; "The Skeleton of Plea Bargaing" (1992) [https://books.google.com/books?id=mNUwAQAAIAAJ 142] New Law Journal 1373; (1995) [https://books.google.com/books?id=3VE9EVXw_qAC 14] UCLA Pacific Basin Law Journal 129 & 130; (1986) [https://books.google.com/books?id=rsexAAAAIAAJ 77] Journal of Criminal Law & Criminology 950; Stumpf, [https://books.google.com/books?id=FGzuAAAAMAAJ American Judicial Politics], Prentice Hall, 1998, pp 305 & 328; Rhodes, [https://books.google.com/books?id=Sl1JAQAAIAAJ Plea Bargaining: Who Gains? Who Loses?], Institute for Law and Social Research, 1978, p 9. The American Bar Association states that people with limited resources accused of a crime "find themselves trapped by a system that presumes their guilt."{{Cite web |last1=Lewis |first1=John |last2=Stevenson |first2=Bryan |date=1 January 2014 |title=On the Presumption of Guilt |url=https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2014_vol_40/vol_40_no_1_50_years_later/presumption_of_guilt/ |website=American Bar}}

Presumption of guilt on the part of investigators may result in false confessions.Green and Heilbrun, Wrightsman's Psychology and the Legal System, 8th Ed, Wadsworth, 2014, [https://books.google.com/books?id=-TfTCQAAQBAJ&pg=PA169 p 169]; Roesch and Zapf and Hart, Forensic Psychology and Law, Wiley, 2010, [https://books.google.com/books?id=DGWkDwAAQBAJ&pg=PA158 p 158], Kocsis (ed), Applied Criminal Psychology, Charles C Thomas, 2009, [https://books.google.com/books?id=YG0Qyfxqtx8C&pg=PA200 p 200]; Michael Marshall, [https://www.law.virginia.edu/news/2002_fall/falseconfession.htm "Police Presumption of Guilt Key in False Confessions"] {{Webarchive|url=https://web.archive.org/web/20200806135400/https://books.google.co.uk/books?id=-TfTCQAAQBAJ&pg=PA169 |date=6 August 2020 }}. 12 November 2002. University of Virginia School of Law. The circumstances of the trial of Steven Avery for the murder of Teresa Halbach were publicized in media at the time, and were later the subject of the American documentary television series Making a Murderer. The media publications largely concerned the postulation that such a presumption of guilt had resulted the wrongful conviction, by means of an induced false confession, of Avery's nephew, Brendan Dassey.{{Cite news |last=Findley |first=Keith |date=19 January 2016 |title=Opinion | The presumption of innocence exists in theory, not reality |url=https://www.washingtonpost.com/news/in-theory/wp/2016/01/19/the-presumption-of-innocence-exists-in-theory-not-reality/ |url-access=subscription |url-status=live |archive-url=https://web.archive.org/web/20190818161433/https://www.washingtonpost.com/news/in-theory/wp/2016/01/19/the-presumption-of-innocence-exists-in-theory-not-reality/ |archive-date=18 August 2019 |access-date=11 March 2020 |newspaper=Washington Post}}

Preventive detention, detaining an individual for a crime they may commit, has been said to involve a presumption of guilt, or something very close to one."Preventive Detention: Prevention of Human Rights" (1991)

[https://books.google.com/books?id=1aY4AQAAIAAJ 2] Yale Journal of Law and Liberation 29 at 31; Selected Decisions of the Human Rights Committee under the Optional Protocol, United Nations, 2007, vol 8, [https://books.google.com/books?id=SLgPg4pU6TcC&pg=PA347 p 347]{{Dead link|date=December 2023 |bot=InternetArchiveBot |fix-attempted=yes }}New York Review, [https://www.nybooks.com/articles/2017/06/22/how-internment-became-legal/ 'How internment became legal'] {{Webarchive|url=https://web.archive.org/web/20191008164457/https://www.nybooks.com/articles/2017/06/22/how-internment-became-legal/ |date=8 October 2019 }}, John Townsend Rich, 22/6/2017

A fixed penalty notice or on-the-spot fine are penalties issued by police for minor offences which are difficult and expensive to appeal.{{Cite news |last=Goodman |first=Emily Jane |date=7 October 2010 |title=With Parking Tickets, New Yorkers Are Guilty Until Proven Innocent |newspaper=Gotham Gazette |url=https://www.gothamgazette.com/transportation/619-with-parking-tickets-new-yorkers-are-guilty-until-proven-innocent |url-status=live |access-date=11 March 2020 |archive-url=https://web.archive.org/web/20171121061303/http://www.gothamgazette.com/transportation/619-with-parking-tickets-new-yorkers-are-guilty-until-proven-innocent |archive-date=21 November 2017}}

Unconstitutional, illegitimate and informal presumptions

An irrebuttable presumption of guilt is unconstitutional in the United States.Florida Businessmen for Free Enterprise v. State of Fla (1980) 499 F.Supp. 346. See [https://books.google.com/books?id=KWooAQAAMAAJ United States Code Annotated]. An arrest, however, often becomes synonymous or "fused" with guilt, postulates Anna Roberts, a United States law professor.{{cite SSRN | last=Roberts | first=Anna | title=Arrests As Guilt | date=April 23, 2018 | ssrn=3167521 }} In the minds of jurors, the person charged must have done something wrong.

High Court judge Sir Richard Henriques 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.Marco Giannangeli, [https://www.express.co.uk/news/uk/896348/police-rape-case-collapse-high-court-judge-officer-training-presumption-of-guilt "Police must stop training 'Presumption of Guilt', says High Court judge"] {{Webarchive|url=https://web.archive.org/web/20180207063139/https://www.express.co.uk/news/uk/896348/police-rape-case-collapse-high-court-judge-officer-training-presumption-of-guilt|date=7 February 2018}}, Daily Express, 24 December 2017. Accessed 6 February 2018.[https://www.scottishlegal.com/article/former-high-court-judge-warns-calling-complainants-victims-creates-presumption-of-guilt "Former High Court judge warns calling complainants 'victims' creates presumption of guilt"], Scottish Legal News, 6 August 2019 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.DiCanio, M. The encyclopedia of violence: origins, attitudes, consequences. New York: Facts on File, 1993. {{ISBN|978-0-8160-2332-5}}.{{Cite journal |url=http://journals.sagepub.com/doi/pdf/10.1177/1077801210387747 |doi=10.1177/1077801210387747 |access-date=7 February 2018 |archive-url=https://web.archive.org/web/20170315132456/http://journals.sagepub.com/doi/pdf/10.1177/1077801210387747 |archive-date=15 March 2017 |url-status=bot: unknown |title=False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases |year=2010 |last1=Lisak |first1=David |last2=Gardinier |first2=Lori |last3=Nicksa |first3=Sarah C. |last4=Cote |first4=Ashley M. |journal=Violence Against Women |volume=16 |issue=12 |pages=1318–1334 |pmid=21164210 |s2cid=15377916 |url-access=subscription }}

The American actor and producer Jeremy Piven has spoken out against the Me Too movement, 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.Brendan O'Neill, [http://www.latimes.com/opinion/op-ed/la-oe-oneill-presumption-innocent-sex-harassment-20171116-story.html "Whatever Happened to the Presumption of Innocence?"] {{Webarchive|url=https://web.archive.org/web/20180207122355/http://www.latimes.com/opinion/op-ed/la-oe-oneill-presumption-innocent-sex-harassment-20171116-story.html |date=7 February 2018 }}, Los Angeles Times, 16 November 2017. Accessed 6 February 2018.

An illegitimate presumption of guilt may be caused or motivated by factors such as racial prejudice,{{cite magazine | last=Stevenson | first=Bryan | title=A Presumption of Guilt | website=The New York Review of Books | date=24 June 2017 | url=https://www.nybooks.com/articles/2017/07/13/presumption-of-guilt/ | access-date=5 March 2020 | archive-url=https://web.archive.org/web/20191212110316/https://www.nybooks.com/articles/2017/07/13/presumption-of-guilt/ | archive-date=12 December 2019 | url-status=live }} "media frenzy",{{Cite web|url=https://caselaw.findlaw.com/us-supreme-court/384/333.html|title= SHEPPARD v. MAXWELL (1966), No. 490, Argued: February 28, 1966 Decided: June 6, 1966 |website=FindLaw's United States Supreme Court|access-date=2019-11-30|archive-url=https://web.archive.org/web/20191206230304/https://caselaw.findlaw.com/us-supreme-court/384/333.html|archive-date=6 December 2019|url-status=live}} cognitive bias,{{Cite web | url=https://www.americanbar.org/groups/judicial/publications/judges_journal/2015/fall/cognitive_bias_and_its_impact_on_expert_witnesses_and_the_court/ | title=Cognitive Bias and Its Impact on Expert Witnesses and the Court | access-date=23 December 2019 | archive-url=https://web.archive.org/web/20191223004853/https://www.americanbar.org/groups/judicial/publications/judges_journal/2015/fall/cognitive_bias_and_its_impact_on_expert_witnesses_and_the_court/ | archive-date=23 December 2019 | url-status=live }} and others.

= Cases in Japan =

In Japan the criminal justice system has been criticized for its wide use of detentions during which suspects are forced to make false confessions during interrogations.{{Cite news|url=https://www.japantimes.co.jp/news/2005/10/13/national/justice-system-flawed-by-presumed-guilt/|title=Justice system flawed by presumed guilt|first=Keiji|last=Hirano|date=13 October 2005|newspaper=Japan Times Online|access-date=10 March 2020|archive-url=https://web.archive.org/web/20141221123002/http://www.japantimes.co.jp/news/2005/10/13/national/justice-system-flawed-by-presumed-guilt|archive-date=21 December 2014|url-status=live}}{{Cite news|url=https://www.theguardian.com/commentisfree/2020/jan/08/carlos-ghosn-nissan-boss-japanese-justice|title=The Carlos Ghosn case shines a light into the dark corners of Japanese justice|first=Jeff|last=Kingston|date=8 January 2020|newspaper=The Guardian|access-date=10 March 2020|archive-url=https://web.archive.org/web/20200229145522/https://www.theguardian.com/commentisfree/2020/jan/08/carlos-ghosn-nissan-boss-japanese-justice|archive-date=29 February 2020|url-status=live}} 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 a "verbal gaffe".{{Cite news|url=https://asiatimes.com/2020/01/in-japan-and-korea-presumed-guilty-until-proven-guilty/|title='Guilty until proven guilty' in Japan and Korea|first1=Jake|last1=Adelstein|first2=Andrew|last2=Salmon|date=13 January 2020|newspaper=Asia Times|quote=“If he's clean as he says he is, then he should fairly and squarely prove his innocence in the court of law.”|access-date=10 March 2020|archive-url=https://web.archive.org/web/20200305091942/https://asiatimes.com/2020/01/in-japan-and-korea-presumed-guilty-until-proven-guilty/|archive-date=5 March 2020|url-status=live}}

= Cases in South Korea =

In South Korea, the constitution clearly states the principle of presumption of innocence in criminal investigations. However, there is much criticism in South Korea that the principle of presumption of innocence is not properly observed in the investigation of sexual crimes.

According to The Herald Business, South Korean police and prosecutors are known to be reluctant to investigate false accusations of sexual crimes, even when there are suspicions of false accusations. This is because most accusers are women, and they want to avoid blaming that "the investigative agency is causing secondary harm to the victims". South Korean police and prosecutors say, "We cannot even properly question the accusers suspected of false accusation". The reason for this is that in April 2018, the Supreme Court of Korea ruled to apply "gender sensitivity"(성인지 감수성, Seong'inji gamsuseong) to the judiciary's decisions. The Supreme Court even ruled that the credibility of a victim's testimony should not be easily doubted, even if the statements change over time. As a result, courts began to prioritise the testimony of the "victim", leading to criticism that the principle of presumption of innocence has been undermined.{{cite web|language=ko|url=https://biz.heraldcorp.com/article/3481775 |date=2024-09-25 |title=[심층분석] 재판부 성범죄 단골 유죄근거, “진술의 일관성과 무고 동기 불분명” 의 함정? |newspaper=The Herald Business}} However, according to the ruling of the Supreme Court of Korea in January 2024, "It doesn't mean that the probative value of the statement of a sexual crime victim should be recognised without limitation or that the fact of the construction should be unconditionally judged guilty based on it". Although it does not mean that "gender sensitivity" has been abolished, it is a re-declaration of the legal principle that the principle of presumption of innocence should also be considered. Accordingly, the problem of presumption of guilt is partially resolved.{{cite web|language=ko|url=https://www.ichannela.com/news/main/news_detailPage.do?publishId=000000394866 |date=2024-02-22 |title=[법조 시그널]성범죄 피해자 진술만으로 유죄? 대법원의 두 판결 |newspaper=Channel A}}