Presumption of guilt

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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[edit]

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[edit]

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.


Presumption of guilt may take many forms:



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[edit]

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' ('lying with statistics' or straight-out lie to prejudice, this is better than 'accusers never lie', which is obviously 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]


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[edit]

  • According to all four Gospels Jesus, though tried by Pontius Pilate and found to be a 'just man' with 'no fault in him', was condemned to death by the multitude who cried 'crucify him' [38]

See also[edit]


  1. ^ T. C. Granger. A digest of the law of evidence in criminal cases W. Benning & Company, 1846
  2. ^ Angela Rainey, 'Here's what happens when you wear a burka in Northern Ireland towns', The Belfast Telegraph, 7 December 2015
  3. ^ John P Crank, Understanding Police Culture, Routledge, p 146
  4. ^ 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.
  5. ^ McGivern, Gerry; Fischer, Michael D. (February 2012). "Reactivity and reactions to regulatory transparency in medicine, psychotherapy and counselling" (PDF). Social Science & Medicine. 74 (3): 289–296. doi:10.1016/j.socscimed.2011.09.035. PMID 22104085.
  6. ^ Jeremy Laurence and Ju-Min Park, 'Guilty by association: growing up in hell of North Korean gulag', Reuters, may 4, 2011
  7. ^ Vicky Baker, 'Rape victim sentenced to 200 lashes and six months in jail', The Guardian, 17 November 2017
  8. ^ Neela Debnath, 'rape victims still blamed for sexual violence in Somalia', The Independent, 6 May 2015
  9. ^ Spencer Case, 'Islamist Terror and Collective Guilt', national Review, 4 April 2016
  10. ^ Peter J Tomson, Presumed Guilty: How the Jews were Blamed For the Death of Jesus, Fortress Press, 2003
  11. ^ Giles Fraser, 'Christians must understand that for Jews the cross is a symbol of oppression', The Guardian, 25 April 2014
  12. ^ Luke Gittos, 'Eric Bellquist and the presumption of innocence', Spiked, 2017-08-17
  13. ^ Robertson, Geoffrey (13 June 2012). "Drone attacks go against every human rights principle in the book". New Statesman.
  14. ^ Bryan Stevenson, 'A presumption of guilt', The New York Review, 13 July 2017
  15. ^ Keith Findley, 'The presumption of Innocence exists in theory, not reality', Washington Post, 19/1/2016
  16. ^ Wayne Dyer, Your Erroneous Zones, Warner Books, 1976, p 100
  17. ^ Eric Berne, Games People Play (book), Penguin 1964, pp 73-75
  18. ^ Jonathan Schell, The Fate of the Earth, Picador, 1982, p133
  19. ^ John Michael Greer, Apocalypse, Quercus, 2012, pp 35, 36, 198
  20. ^ M S Silk, Aristophanes and the Definition of Comedy, Oxford University Press, 2002, p 372
  21. ^ 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)
  22. ^ see Wikipedia article psychopathography of Adolf Hitler
  23. ^ Sebastian Haffner, The Meaning of Hitler, Phoenix 2003, p 154
  24. ^ Sebastian Haffner, The Meaning of Hitler, Phoenix 2003, p 120, 157, 160, 164
  25. ^ 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
  26. ^ Newsweek, 27 February 1989
  27. ^ Granger, TC (1846). A Digest of the Law of Evidence in Criminal Cases. Benning and co. p. 18. Retrieved 7 May 2018.
  28. ^ Brendan O'Neill (journalist), 'Whatever Happened to the Presumption of Innocence?', Los Angeles Times, 16 November 2017. [1]. Accessed 6 February 2018.
  29. ^ Marco Giannangeli, 'Police must stop training 'Presumption of Guilt', says High Court judge', Daily Express, 24 December 2017. [2]. Accessed 6 February 2018.
  30. ^ DiCanio, M. The encyclopedia of violence: origins, attitudes, consequences. New York: Facts on File, 1993. ISBN 978-0-8160-2332-5.
  31. ^ 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.
  32. ^ 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.
  33. ^ Stuart Taylor Jr and KC Johnson, Until Proven Innocent, St Martin's Press, 2013, chapter 24
  34. ^ Stuart Taylor Jr and KC Johnson, Until Proven Innocent, chapter 24
  35. ^ Jonathan Kaiman, 'China Suspects presumed guilty until proven innocent', The Guardian, 20 May 2013
  36. ^ Macit Ferhan, 'In Turkey, You are Guilty until proven Innocent', The Globe Post, 7 November 2016
  37. ^ Keiji Hirano, 'Justice system flawed by presumed guilt', The Japan Times, 13 October 2005
  38. ^ Matthew, ch 27, Mark, ch 15, Luke, ch 23, John ch 18
  39. ^ Karen Dolan, 'The Presumption of innocence doesn't apply to my child', Washington Post, 21 January 2016

External links[edit]