Presumption of guilt
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Presumption of guilt is the principle that one is considered guilty unless proven innocent: thus the burden of proof is on the accused, not the accuser.[1] Presumption of guilt is a denial of an international human right under Article 11 of the Universal Declaration of Human Rights.[2] Under the presumption of guilt, the legal burden of proof is thus on the defense, which must collect and present compelling evidence to the trier of fact. Presumption of guilt shifts the burden of proof onto the defendant, who must then prove their innocence in order to achieve acquittal.[3]
Definition
In criminal law, Blackstone's ratio is the idea that it is better that ten guilty persons escape than that one innocent suffer,[4] as expressed by the English jurist William Blackstone in Commentaries on the Laws of England, published in the 1760s. The idea subsequently became a staple of legal thinking in Anglo-Saxon jurisdictions and continues to be a topic of debate.
The phrase "presumption of guilt" has been in use since at least the 1840s.[5]
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."[6] The presumption of guilt prioritizes speed and efficiency over reliability, and prevails when due process is absent.[6]
Typology
Presumption of guilt may take differing forms:
- Collective guilt, for example the belief that 'all Muslims are terrorists';[7] 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',[8]
- Rushing to judgement, for example equating arrest with conviction.[9]
- The obtaining of a false confession under duress or torture.[10]
- A frameup, usually an admission presumably made under duress. All such admissions should be treated with skepticism without actual video or a signed statement.[11]
- A plea bargain, which in the worst case may induce a guilty party to give false testimony against an innocent co-accused.[12]
- A fixed penalty notice or on-the-spot fine.[13]
- Pre-crime policies such as preventive detention.[14]
Motivation
- Racial prejudice;[15]
- 'Impatience and fear of jurors, 'media frenzy', a punitive culture, and cognitive bias'.[16][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.[17][18]
- 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'.[19] Apocalypticism attracts 'desperate, humiliated and defeated' people, says John Michael Greer; it 'offers a free ticket out of the troubles of everyday life'.[20]
Examples in History
Between 1947 and 1956, many US citizens were accused of being communist agents or sympathisers and had their careers ruined during the era of McCarthyism and the Second Red Scare. The McCarthyites never proved any of it in court.[21]
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.[22]
Examples in 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.[23]
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.[24] 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.[25][26]
Internationally
In Japan the criminal justice system has been criticized for its wide use of detentions, during which suspects were forced to make false confessions during interrogations.[27]
In popular culture
- 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".[28]
See also
References
- ^ legal dictionary.thefreedictionary.com/presumption+of+guilt
- ^ https://www.un.org/en/universal-declaration-human-rights/
- ^ A digest of the law of evidence in criminal cases W. Benning & Company, 1846
- ^ "Commentaries on the laws of England". J.B. Lippincott Co., Philadelphia, 1893.
- ^ T. C. Granger. A digest of the law of evidence in criminal cases W. Benning & Company, 1846
- ^ a b Packer, Herbert L. (November 1964). "TWO MODELS OF THE CRIMINAL PROCESS". University of Pennsylvania Law Review. 113 (1). Pennsylvania: University of Pennsylvania: 1–68. doi:10.2307/3310562. JSTOR 3310562.
- ^ 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
- ^ Luke Gittos, 'Eric Bellquist and the presumption of innocence', Spiked, 2017-08-17
- ^ Japan Times, 'Justice system flawed by presumed guilt', Keiji Hirano, 13/10/2005
- ^ Japan Times, 'Justice system flawed by presumed guilt' Keiji Hirano, 13/10/2005
- ^ Washington Post, How to make an innocent plead guilty, Jeffrey Stein, 12/1/2018
- ^ Gotham Gazette, 'With parking tickets, New Yorkers are guilty until proven innocent', Emily Jane Goodman, 7/10/2010
- ^ New York Review, 'How internment became legal', John Townsend Rich, 22/6/2017
- ^ 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
- ^ 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
- ^ Brendan O'Neill, "Whatever Happened to the Presumption of Innocence?", Los Angeles Times, 16 November 2017. Accessed 6 February 2018.
- ^ Marco Giannangeli, "Police must stop training 'Presumption of Guilt', says High Court judge", Daily Express, 24 December 2017. Accessed 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. Accessed 7 February 2018.
- ^ 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", The Washington Post, 21 January 2016