Presumption of guilt
Presumption of guilt, in Latin, ei incumbit probatio qui negat, non qui dicit (the burden of proof is on the one who denies, not on one who declares), is the principle that one is considered guilty unless proven innocent. Generally, this is an argument from ignorance, a philosophical concept in which a thing is assumed to be true because not proved false.
In the law
Presumption of guilt shifts the burden of proof onto the defendant, who must then prove a negative to achieve acquittal. The phrase has been in use since at least the 1840s.[1] It is a default position based on pessimism and suspicion whereas presumption of innocence is based more on optimism and trust. There is a greater likelihood of obtaining a wrongful conviction. For example, in the murder of Lynette White case, a double wrong was committed in that innocent men were convicted, while the real perpetrator remained at large and a danger to the public.
Presumption of guilt is a denial of an international human right under the UN's Universal Declaration of Human Rights, Article 11. Under the presumption of guilt, the defence must collect and present compelling evidence to the trier of fact (a judge or a jury). The defence must, in most cases prove that the accused is innocent.
Widespread prevalence
Presumption of guilt is pandemic, occasionally erupting into epidemic proportions. Smaller instances include adverse accusatory reactions to unusual costume such as the burqa,[2] or merely a 'suspicious stare' from the police.[3] More severe is the blame culture inherent in bureaucratic organisations where those with the least responsibility are blamed the most.[4][5] Belief in the 'Stab-in-the-back myth' – that Jews and profiteers were collectively guilty of losing the war for Germany in 1918 – is an extreme instance of guilt being presumed.
Typology
Presumption of guilt may take many forms:
- Guilt by association, for example, punishing the families of North Korean defectors.[6]
- Extrajudicial punishment such as lynching or other forms of vigilantism, which seek to bypass legal procedures;
- Blaming the victim; for example, victims of rape in Saudi Arabia and Somalia.[7][8]
- Collective guilt, for example the belief that 'all Muslims are terrorists';[9] conversely, the terrorist may believe his victims to be collectively guilty of some perceived injustice, as in the case of 9/11. A belief in Jewish deicide expresses the view that 'all Jews are Christ-killers',[10] though in fact only the Romans had the legal authority to crucify someone.[11]
- Rushing to judgement, for example equating arrest with conviction.[12]
- The obtaining of a false confession under duress or torture;
- Judicial misconduct such as collusion with the prosecution; judicial murder
- A frameup, such as the numerous kinds of police misconduct likely to cause a miscarriage of justice;
- A plea bargain, which in the worst case may induce a guilty party to give false testimony against an innocent co-accused;
- A fixed penalty notice or on-the-spot fine;
- Precrime policies such as preventive detention
- Preemptive action such as drone strikes;[13]
Motivation
- Racial prejudice;[14]
- The authority fallacy, demonstrated by the Milgram experiment, in which persons may be too much inclined to follow orders from a perceived authoritarian figure; as in the extreme case of Hitler, Adolf Eichmann, and the Final solution.
- Short-term political gain and the destruction of political rivals, as in the Stalinist show trials of the 1930's.
- Dissatisfaction or impatience with due legal process which vigilantes and others see as 'weak'.
- 'Impatience and fear of jurors, 'media frenzy', a punitive culture, and cognitive bias'.[15][clarification needed]
- Psychological game-playing; the aggressive accuser is said to play mind games, while the victim is on a guilt trip. Guilt feelings may be residual from early childhood, in which all of us are powerless and presumption of guilt ('you naughty boy', 'shame on you, wicked child') is often the norm.[16][17]
- A mind-set which favours Apocalypticism. According to Jonathan Schell, the religiously orthodox may 'take it upon themselves to please a wrathful God' through the 'extinction of 'evil' mankind'.[18] Apocalypticism attracts 'desperate, humiliated and defeated' people, says John Michael Greer; it 'offers a free ticket out of the troubles of everyday life'.[19]
History
Presumption of guilt is as old as suspicion itself. In ancient Greece, public officials were elected for very limited terms of office and barred from re-election, on the presumption that too long an incumbency would lead to abuse of power. Thucydides and Aristophanes[20] pointed out that the crowd were too easily swayed by oratory and emotion. As Lord Acton wrote in the 19th century, again expressing presumption of guilt, "Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men,..."[21]
Adolf Hitler was a persistent presumer of guilt in those he disliked. Being allegedly a psychopath and narcissist[22] he tended to blame others when things went wrong. From 1918 he blamed Germany's defeat on the November criminals of the Weimar Republic for negotiating a truce when Germany still had the capacity to fight on; in Mein Kampf he wrote; 'every third German is a traitor'.[23] In 1945, when it was clear that Germany could not win the war, Hitler wished to punish the entire nation for failing to meet his expectations, according to Sebastian Haffner.[24]
Between 1947 and 1956, many US citizens were unfairly accused of being communist agents or sympathisers and had their careers ruined during the era of McCarthyism and the Second Red Scare, or even killed like Julius and Ethel Rosenberg. The McCarthyites 'never produced a single Communist spy whose guilt was proved in court.'[25]
In 1989, Ayatollah Khomeini, supreme leader of Iran, pronounced a death sentence by fatwa on Salman Rushdie and anyone assisting publication of his book, The Satanic Verses; 'I call on all Muslims wherever they may be in the world to kill them without delay'. the Fatwa was condemned for violating national sovereignty, freedom of speech, and the Muslim principle of fiqh.[26]
In the UK case Hale, 2 P. C. 290 (n), the defendant was alleged to have murdered his niece, who had cried out 'good uncle do not kill me', and then was seen no more. The defendant, asked to produce the girl in court, had fraudulently produced another girl disguised as the niece. The court presumed him guilty on this basis and he was executed. Later, the niece was found, alive and well.[27]
Sexual violence and harassment
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, which barrister and writer John Mortimer described as a 'golden thread', is being weakened.[28]
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. In three cases which later collapsed, including those of Liam Allan and Danny Kay, police withheld vital evidence from the defence.[29] It is difficult to assess the true prevalence of false rape allegations, but it is generally agreed that rape accusations are false about 2% to 10% of the time.[30][31]
In March 2017 Elizabeth Truss, Justice Secretary, said "that from September juries across the country will watch the pre-recorded cross-examinations during a trial".[32]
In 1990, Yale professor and radical feminist Catharine MacKinnon, is alleged to have addressed a graduation crowd thus; 'look about you. Statistics tell us you have just laid eyes on someone guilty of sexual assault'.[33] In her 1989 book Towards a Feminist Theory of the State she alleged that 'all sex is akin to rape'.[34]
Internationally
In China there has been a 'spate of wrongful convictions' and alleged misconduct by police and prosecutors.[35]
In Turkey, a suspect arrested after the July 2016 coup attempt was asked to pay his defence lawyer $80,000, reflecting the cost to the lawyer's career; he would be thrown off the bar. 'Bogus and ludicrous charges' and confessions obtained under torture, were allegedly widespread.[36]
In Japan the criminal justice system has been criticized for its wide use of detentions, suspects were forced to make false confessions during interrogations.[37]
In popular culture
- Crime of the Century (1996 film), starring Stephen Rea, was a TV docudrama which presented Richard Hauptmann as an innocent man wrongly convicted.
- Presumed Guilty is a 1993 thriller by Tess Gerritsen in which a woman is wrongly accused of murdering her lover.
- Presumption of Guilt is a novel by Archer Mayor in which detective Joe Gunther investigates a forty-year-old murder case.
- The Netflix documentary Making a Murderer details the murder trials of Steven Avery and Brendan Dassey in which the presumption of innocence was 'deeply compromised'.[38]
See also
References
- ^ T. C. Granger. A digest of the law of evidence in criminal cases W. Benning & Company, 1846
- ^ Angela Rainey, 'Here's what happens when you wear a burka in Northern Ireland towns', The Belfast Telegraph, 7 December 2015
- ^ John P Crank, Understanding Police Culture, Routledge, p 146
- ^ McGivern, Gerry; Fischer, Michael (2010). "Medical regulation, spectacular transparency and the blame business". Journal of Health Organization and Management. 24 (6): 597–610. doi:10.1108/14777261011088683. PMID 21155435.
- ^ McGivern, Gerry; Fischer, Michael D. (February 2012). "Reactivity and reactions to regulatory transparency in medicine, psychotherapy and counselling". Social Science & Medicine. 74 (3): 289–296. doi:10.1016/j.socscimed.2011.09.035. PMID 22104085.
- ^ Jeremy Laurence and Ju-Min Park, 'Guilty by association: growing up in hell of North Korean gulag', Reuters, may 4, 2011
- ^ Vicky Baker, 'Rape victim sentenced to 200 lashes and six months in jail', The Guardian, 17 November 2017
- ^ Neela Debnath, 'rape victims still blamed for sexual violence in Somalia', The Independent, 6 May 2015
- ^ Spencer Case, 'Islamist Terror and Collective Guilt', national Review, 4 April 2016
- ^ Peter J Tomson, Presumed Guilty: How the Jews were Blamed For the Death of Jesus, Fortress Press, 2003
- ^ Giles Fraser, 'Christians must understand that for Jews the cross is a symbol of oppression', The Guardian, 25 April 2014
- ^ Luke Gittos, 'Eric Bellquist and the presumption of innocence', Spiked, 2017-08-17
- ^ Robertson, Geoffrey (13 June 2012). "Drone attacks go against every human rights principle in the book". New Statesman.
- ^ Bryan Stevenson, 'A presumption of guilt', The New York Review, 13 July 2017
- ^ Keith Findley, 'The presumption of Innocence exists in theory, not reality', Washington Post, 19/1/2016
- ^ Wayne Dyer, Your Erroneous Zones, Warner Books, 1976, p 100
- ^ Eric Berne, Games People Play (book), Penguin 1964, pp 73-75
- ^ Jonathan Schell, The Fate of the Earth, Picador, 1982, p133
- ^ John Michael Greer, Apocalypse, Quercus, 2012, pp 35, 36, 198
- ^ M S Silk, Aristophanes and the Definition of Comedy, Oxford University Press, 2002, p 372
- ^ Letter to Bishop Mandell Creighton, April 5, 1887 published in Historical Essays and Studies, edited by J. N. Figgis and R. V. Laurence (London: Macmillan, 1907)
- ^ see Wikipedia article psychopathography of Adolf Hitler
- ^ Sebastian Haffner, The Meaning of Hitler, Phoenix 2003, p 154
- ^ Sebastian Haffner, The Meaning of Hitler, Phoenix 2003, p 120, 157, 160, 164
- ^ Don E Carleton and John Henry Faulk, Red Scare: Right-Wing Hysteria, Fifties Fanaticism, and Their Legacy in Texas, University of Texas Press, 2014, p x
- ^ Newsweek, 27 February 1989
- ^ Granger, TC (1846). A Digest of the Law of Evidence in Criminal Cases. Benning and co. p. 18. Retrieved 7 May 2018.
- ^ Brendan O'Neill (journalist), 'Whatever Happened to the Presumption of Innocence?', Los Angeles Times, 16 November 2017. [1]. Acessed 6 February 2018.
- ^ Marco Giannangeli, 'Police must stop training 'Presumption of Guilt', says High Court judge', Daily Express, 24 December 2017. [2]. Acessed 6 February 2018.
- ^ DiCanio, M. The encyclopedia of violence: origins, attitudes, consequences. New York: Facts on File, 1993. ISBN 978-0-8160-2332-5.
- ^ Lisak, David; Gardinier, Lori; Nicksa, Sarah C.; Cote, Ashley M. (2010). "False Allegations of Sexual Assualt [sic]: An Analysis of Ten Years of Reported Cases" (PDF). Violence Against Women. 16 (12): 1318–1334.[3]. Accessed 7 February 2018.
- ^ Laura Hughes, "Rape victims to be spared court cross-examination as Government brings forward plans for pre-recorded video evidence". Daily Telegraph, 16 March 2017. [4]. Accessed 7 February 2018.
- ^ Stuart Taylor Jr and KC Johnson, Until Proven Innocent, St Martin's Press, 2013, chapter 24
- ^ Stuart Taylor Jr and KC Johnson, Until Proven Innocent, chapter 24
- ^ Jonathan Kaiman, 'China Suspects presumed guilty until proven innocent', The Guardian, 20 May 2013
- ^ Macit Ferhan, 'In Turkey, You are Guilty until proven Innocent', The Globe Post, 7 November 2016
- ^ Keiji Hirano, 'Justice system flawed by presumed guilt', The Japan Times, 13 October 2005
- ^ Karen Dolan, 'The Presumption of innocence doesn't apply to my child', Washington Post, 21 January 2016