The presumption of innocence

Despite its inclusion in most, if not all, criminal justice systems, there is no general consensus as to what constitutes the presumption of innocence. This study answers the question: What is the presumption of innocence? The study contributes to knowledge by providing a comprehensive definition of the presumption of innocence from both a theoretical and practical perspective. The substantive chapters are thematic. Chapter two examines how the presumption of innocence fits within the existing legal framework. Chapters three and four discuss the two aspects of the presumption of innocence. The procedural aspect is a legal presumption that is applicable at trial, while the non-procedural aspect extends the presumption of innocence outside of trial to protect non-convicted individuals from being treated as if they have been convicted. Chapter five argues that everyone can benefit from the presumption of innocence, but the right only attaches once someone is ‘charged’. Chapter six examines the duty to uphold the presumption of innocence concluding that the strongest duty falls to the fact-finder but the majority of the burden falls to public authorities. Finally, the seventh chapter attempts to reconcile the presumption of innocence with pre-determination detention. The thesis concludes that the presumption of innocence is a human right with two aspects. These aspects keep innocent people from being treated as if they have been convicted of a crime. While the procedural aspect is operative at trial, the nonprocedural aspect extends the presumption of innocence beyond trial. The outcome of the particular criminal case determines when the right to the presumption of innocence ends. Finally, the presumption of innocence may be reconciled with predetermination detention only if the reason justifying the detention is not based within the criminal process

The Rhetoric of Innocence

This Article promotes the serious consideration of innocence in the criminal process, and gives meaning to the rhetoric surrounding the presumption of innocence. The first part illustrates the near irrelevance of innocence in an accusatorial system of justice where burdens of proof require proof of guilt The second and third parts of the Article discuss the meaning of the presumption of innocence. It is argued that legislatures and courts have ignored the tension between the conflicting goals of the criminal process by thinking of the presumption of innocence as a legal presumption. As a legal presumption, its effects are indistinguishable from the reasonable doubt rule. Arguments are presented that the presumption should be factually based so that jurors are asked to assume the accused\u27s innocence in fact. This Article concludes with a proposal for a factually based assumption of innocence

Immigration Law\u27s Missing Presumption

The presumption of innocence is a foundational concept in criminal law but is completely missing from quasi-criminal immigration proceedings. This Article explores the relevance of a presumption of innocence to removal proceedings, arguing that immigration law has been designed and interpreted in ways that disrupt formulating any such presumption to facilitate deportation. The Article examines the meaning of “innocence” in the immigration context, revealing how historically racialized perceptions of guilt eroded the notion of innocence early on and connecting the missing presumption to persistent associations between people of color and guilt. By analyzing how a presumption of innocence is impeded at multiple decision points, from the investigations stage to detention, removal, and even post-conviction relief, the Article demonstrates the cumulative disadvantage that the system inflicts. Finally, the Article argues that immigration law not only is missing its own presumption of innocence but also erodes the presumption of innocence in criminal law. The Article offers three examples of this phenomenon involving immigration law’s treatment of pending charges, untested arrest reports, and unproven facts related to a crime. By shedding light on how immigration law undermines a presumption of innocence and reinforces racialized perceptions of guilt, this Article reveals a form of covert racial discrimination in the immigration code

PRADUGA TAK BERSALAH DAN PRADUGA BERSALAH DALAM PROSES PENEGAKAN HUKUM PIDANA DI INDONESIA OLEH KEPOLISIAN

The presumption of innocence is one of the principles that provides legal protection for suspects and defendants in the process of enforcing criminal law, but there is also a view that states that in the investigation process it would be more appropriate to apply the presumption of guilt, therefore in this paper the author will further examine the application of the presumption of innocence and presumption of guilt in the criminal law enforcement process in Indonesia by the Police. To answer these problems, the author uses the research method of library research, namely research that utilizes library sources to obtain data in a study. The method of approach is conceptual (conceptual approach) by studying the principles, theories, doctrines, and principles related to the presumption of innocence and the presumption of innocence, and from the results of the research the author concludes that the presumption of innocence must actually be applied in the examination process at the investigation level

Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration

This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions – in particular, the disciplinary assumptions – implicit in influential contributions to debates on the presumption of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers (and some legal scholars) routinely treat the presumption of innocence as (in some sense) epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and institutional reasons why legal scholars and practitioners (and possibly others) concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions and literature, the article aims to show why criminal lawyers might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts

The Presumption of Innocence between Theory and Practice

The presumption of innocence remains adjacent to the accused at all stages of the criminal case , and through these stages are not seen as a convicted or the offense is committed ascribed to really and truly , it is treated on the grounds that the offense did not commit to that issue a court ruling definitively against him, and given the importance of this presumption has the text in the ads and international agreements, charters and international and regional covenants , and constitutions and laws . The Islamic Sharia her head starts in the report and confirm this presumption, including the presumption of innocence moved to such legislation. It follows the presumption of innocence be preserved personal liberty of the accused, and that explains the doubt in his favor , and that is exempt from proving patents of , and that takes care of the origin of his innocence in the trial proceedings , and this presumption flawed cases of arrested or caught red-handed or a verdict is definitive right , or even his confession of committing the offense ascribed to it .Keywords: Presumption, Innocence, Theory, Practice

The Myth of the Presumption of Innocence

James Q. Whitman, in his deeply comparative new article, describes the American criminal justice system, in contrast with continental and inquisitorial systems, as more focused on the danger of innocent persons being arrested and convicted. In this Response, I respond by questioning the comparison on both sides of the equation, not to disagree with its utility or its contours, but because I admire the project and seek to elaborate here on Whitman’s deep concern with unpacking the status of the presumption of innocence and that of mercy. I describe how the American presumption of innocence is more of an ideal than real. Nor does the supposed and oft proclaimed focus in constitutional criminal procedure on the question of guilt or innocence translate into rights protective as against wrongful convictions. However, there is today the potential for a new kind of convergence, as systems on both sides of the Atlantic are responding to wrongful convictions with a rethinking of traditional procedural rules, including rules of finality that long resisted reopening convictions in a broad range of civil and common law systems. Continental systems are increasingly receptive to claims of new evidence of innocence, in part because of lessons drawn from research on wrongful convictions in the United States. And in a reverse irony, inquisitorial tools are influencing efforts to make criminal adjudication in the United States more reliable. As a result, in the years ahead, there is much that all systems can do to make the presumption of innocence far more than the vestigial “inaccurate, shorthand description” of a right that it has so often served as in the past, and instead a “corner stone” of criminal justice

Towards an International Right to Claim Innocence

In the past, wrongful convictions were seen as a local problem largely undeserving of national or international attention. Very different legal systems have shared a common approach of emphasizing the finality of criminal convictions, thereby making it very difficult to claim innocence by relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert post-trial claims of innocence. Today, the procedures and attitudes toward claims of innocence that rely on newly discovered evidence are in flux as more countries have adopted broader remedies for convicts to claim innocence

Presumption of innocence within the right to a fair trial: implementation and contradiction to pre-trial detention

Being an integral part of the right to a fair trial, the principle of the presumption of innocence not only ensures that every suspect is considered innocent until proven guilty, but also regulates the way how public authorities approach the conduct of the criminal trial. Sometimes, however, there may be a need to place the suspected under pre-trial detention, which, contrary to the presumption of innocence, requires a high degree of suspicion of guilt. The lack of court practice on compatibility of pre-trial detention with the presumption of innocence puts in question if the two can coexist in criminal proceedings. This research, therefore, aims to examine both the presumption of innocence and pre-trial detention within the scope of the European Convention on Human Rights and determine if a contradiction between the two exists. By contrasting a theoretical study of the ECHR legislation and the court practice, the research will establish in which way the presumption of innocence can regulate or have a limiting effect on pre-trial detention, this way also figuring if a gap exists in the regulation of pre-trial detention by the ECHR