http://en.wikipedia.org/wiki/Innocent_until_proven_guiltyThe presumption of innocence, sometimes referred by the Latin Ei incumbit probatio qui dicit, non qui negat (the principle that one is considered innocent until proven guilty) is a legal right of the accused in a criminal trial, recognised in many nations. 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 a reasonable doubt. In case of remaining doubts, the accused is to be acquitted.
This presumption is seen to stem from the Latin legal principle that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies).(snip)
Common law
In British common law, the term means, loosely, "the onus of proving a fact rests upon the man".<2><3> Another rough translation is, "The proof lies upon the one who affirms, not the one who denies." <4><5>
The fully stated maxim is, allegedly: "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."<6>(snip)
Meaning
First, the presumption is not a true presumption at all. A "presumption" is typically a rebuttable or irrebuttable inference dependent upon evidence of an initial fact (e.g., presumption of non-negligent behavior if a person took reasonable care). Instead, "presumption of innocence" serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt (in some criminal justice systems) and that the accused bears no burden of proof.<14>
This is often expressed in the phrase innocent until proven guilty coined by the English lawyer Sir William Garrow (1760–1840).<15> 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.<16> The observable facts clearly support such an inference - the defendant has been charged with a crime, is present in court and is represented by an attorney, and all the participants in a criminal trial are also present and ready to proceed.<17>
The presumption of innocence is in fact a legal instrument created by the French cardinal and jurist Johannes Monachus to favor the accused based on the legal inference that most people are not criminals.<18> It is literally considered favorable evidence for the accused that automatically attaches at trial.<19> 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.<18> To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:<14>
(snip)
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 activists feel that pre-employment drug testing, while legal, violates this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent through the test.
Similarly, critics argue that some dispositions of laws against sexual harassment or racial discrimination show a 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 in some sexual assault cases of a screen, 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.<21> However, where an accused is innocent, this may inadvertently tell the jury that the court accepts that a crime was committed. This shifts the burden of proof traditionally on the prosecution to the defense, and risks putting the court in the role of judging guilt rather than the jury. Even more importantly, such a shield may also send a message that the complainant is upset by the sight of the accused, once again because guilt is seen to have been assumed by the court in so shielding the complainant. The psychological effects of such a screen have not yet been well researched, but the tension between the two views is a problem for therapeutic justice, which must weigh protection of genuine victims from genuine offenders against the potential for an unjust conviction that such protection may create.<22> I ask this because we have articles and columns about accusers' "names being dragged through the mud" with little or no regard about the accused's reputation.
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