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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 present compelling evidence to the trier of fact (a judge or a jury). If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.

"Ei incumbit probatio qui dicit" redirects here. For burden of proof in law in general, see Burden of proof (law).

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 is a legal right of the accused in a criminal trial. It is also an international human right under the UN's Universal Declaration of Human Rights, Article 11.

History[edit]

Roman law[edit]

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 Julius Paulus. It was introduced in Roman criminal law by emperor Antoninus Pius.[3]


A civil law system 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,[4] China,[5] France,[6] Italy,[7][8] Philippines,[9] Poland,[10] Romania[11] and Spain.[12]

Talmudical law[edit]

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".[13]

Islamic law[edit]

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.[14] "Suspicion" is also highly condemned, this also from a hadith documented by Imam Nawawi[15] as well as Imam Bukhari[16] and Imam Muslim.[17]


After the time of Muhammad, the fourth Caliph Ali ibn Abi Talib has also been cited to say, "Avert the prescribed punishment by rejecting doubtful evidence."[18]

Medieval European law[edit]

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.[19]


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 was formally adopted in Rome by Pope Innocent III in 1215 at the Fourth Lateran Council and trials by fire and water specifically were forbidden. This was during the period of development of the jus commune, the canon law of the Catholic Church influenced the common law during the medieval period[20]


In the early 13th century, Louis IX of France banned all trials by ordeal and introduced the presumption of innocence to criminal procedures.[21] This did not last for long and the institutional use of torture, called "question préalable" and subdivided into "question ordinaire" (light torture) and "question extraordinaire" (severe torture), applied at the judge's discretion against individuals suspected of a crime, was to last up to the eve of the French Revolution.[22]

The , 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."

Universal Declaration of Human Rights

The , 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."[31]

International Covenant on Civil and Political Rights

The of the Council of Europe 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 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.

Convention for the Protection of Human Rights and Fundamental Freedoms

In the UK, the presumption of innocence is provided for by section 6 of the , which aims to incorporate the rights contained in the aforementioned European Convention on Human Rights.[32]

Human Rights Act 1998

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 make the Inter-American Court 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. 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".[33]

American Convention on Human Rights

In , article 5th, item LVII of the Constitution states: "no one will be considered guilty until the final criminal sentence is reached".

Brazil

In , section 11(d) of the Canadian Charter of Rights and Freedoms 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".

Canada

In the , Title II, Chapter 1, Article 29 states that "Every person is presumed innocent until proven guilty according to the law".

Colombian constitution

In , article 9 of the Declaration of the Rights of Man and of the Citizen of 1789, which has force as constitutional 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"[6] and the jurors' oath repeats this assertion (article 304; note that only the most serious crimes are tried by jury in France).[34] A popular misconception is that, under French law, the accused is presumed guilty until proven innocent.[35]

France

In , Article 37 of the Constitution of the Islamic Republic of Iran 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".

Iran

In , the second paragraph of Article 27 of the Constitution states: "A defendant shall be considered not guilty until a final sentence has been passed."[36]

Italy

In Romania, article 23 of the states that "any person shall be presumed innocent until found guilty by a final decision of the court".

Constitution

The , 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".

Constitution of Russia

In the , section 35(3)(h) of the Bill of Rights 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."

South African Constitution

Although the 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 (1895) established the presumption of innocence of persons accused of crimes. See also In re Winship.

Constitution of the United States

In , 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".[37]

New Zealand

In the European Union, in addition to the Charter of Fundamental Rights, presumption of innocence is also protected through Directive (EU) 2016/343 of the European Parliament and of the Council of the 9th March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to bepresent at the trial in criminal proceedings (Directive). Article 3 states that: Member States shall ensure that suspects and accused persons are presumed innocent until proved guilty according to law. The goal of the directive is stated in article 1. The scope is to lay down common minimum rules concerning:(a) certain aspects of the presumption of innocence in criminal proceedings;(b) the right to be present at the trial in criminal proceedings.

This right is considered important enough in modern democracies, constitutional monarchies and republics that many have explicitly included it in their legal codes and constitutions:

Archived 2012-11-24 at the Wayback Machine

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

The History of Presumed Innocence

What’s Wrong with Military Trials of Terrorist Suspects?

Kenneth Pennington, Innocent Until Proven Guilty: The Origins of a Legal Maxim, 63 JURIST: STUD. CHURCH L. & MINISTRY 106 (2003).