The Prosecutor and the Presumption of Innocence

In what ways is the conduct of prosecutors constrained by the presumption of innocence? To address this question, I first develop an account of the presumption in the trial context, according to which it is a vital element in a moral assurance procedure for the justified infliction of legal punishment. Jurors must presume the factual innocence of defendants at the outset of trials and then be convinced beyond a reasonable doubt by the government’s evidence before they convict defendants. Prosecutors’ responsibilities to promote the integrity of this moral assurance procedure are then divided into pre-trial, during-trial, and post-trial phases. Since most charge adjudication is effected through plea bargaining, the ways in which plea procedures must be modified to conform to this moral assurance procedure, and thus honor the presumption of innocence, are also discussed.     

The Ideal of the Presumption of Innocence

This article clarifies and further defends the view that the right to be presumed innocent until proven guilty, protected by Article 6(2) of the European Convention of Human Rights has implications for the substantive law. It is shown that a ‘purely procedural’ conception of the presumption of innocence has absurd implications for the nature of the right. Objections to the moderate substantive view defended are considered, including the acceptability of male prohibits offences, the difficulty of ascertaining intentions of legislatures and the proper role of prosecutorial discretion.     

Corporations and the Presumption of Innocence

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants.     

论无罪推定

推定是认定事实的特殊方法,它有三大要素构成。法国《人权宣言》第9条规定:"任何人在其未被宣告为犯罪以前应被推定为无罪"。这一推定并不具有推定的构成要件,且既不能发生法律效力,也不能执行,故为虚假推定。中国社科院林欣研究员认为:这个原则"应该译为‘无罪假定’"。法国《人权宣言》第9条的规定如果是无罪假定是可以成立的,也具有一定的价值。需要澄清几个问题:一是现代法治国家并没有普遍确立无罪推定原则;二是无罪推定并不能构成扼制刑讯逼供和保障人权的理由和根据;三是真正的无罪推定是指,不能证实有罪,应推定为无罪。     

The Presumption of Innocence in the Trial Setting

The starting frame with which jurors begin trials and the approach which they should take toward the presentation of evidence by the prosecution and defense are distinguished. A robust interpretation of the starting frame, according to which jurors should begin trials by presuming the material innocence of defendants, is defended. Alternative starting frames which are less defendant‐friendly are shown to cohere less well with the notion that criminal trials should constitute stern tests of the government's case against those it has charged with crimes. The intuitive case for the robust presumption of innocence is supplemented with empirical evidence concerning the psychology of belief formation and preservation. Various objections to the proposed starting frame are addressed.     

Preventive Justice and the Presumption of Innocence

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.     

The Politics of the Human Rights Act

The Human Rights Act is the result of post-war changes in Europe. It is the consequence less of the campaigning of dedicated individuals and more of the change in the position of the United Kingdom in Europe and the world. Objections to incorporation of the Convention have given way to the desire to be like the rest of Europe. Traditional views of the judicial role have given way to a perception of the judiciary as the last bastion against an over-powerful executive, unchecked by Parliament.     

刑事法中的推定与无罪推定

作为一项重要的刑事法原则,无罪推定从本质上讲并不是推定,而是一种法律假定。设置无罪推定原则,其理由蕴涵着重要的逻辑理性——人人都享有的一种先定的权利——无罪免证权。刑事推定契合无罪推定的思想,与有罪推定存在本质上的区别,刑事法中设立推定并不有悖无罪推定原则。     

Deferred Prosecution Agreements and the Presumption of Innocence

A deferred prosecution agreement, or DPA, allows a corporation, instead of proceeding to trial on a criminal charge, to settle matters with the state by acknowledging the facts on which any charge would be based, pay a reduced fine, and agree to change the way they conduct business. Critics of DPAs have suggested that, because the defendant corporation must pay a fine and submit to structural reform without having been found guilty at trial, DPAs violate the Presumption of Innocence. This paper argues that they do not. The paper appeals to the role of civic trust in a liberal political community. The obligations a corporation assumes in a DPA can be framed as a reasonable retributive response to a breach by that corporation of the community’s laws, and an appropriate reassurance by that corporation to the community that such breaches will not reoccur. This framing is sufficient to deny that DPAs violate the Presumption of Innocence.     

論「無罪推定」原則的歷史發展

「無罪推定」的法律概念源起於古希臘及古羅馬,作爲法律原則,它最早由法國的教會法法學家提出,再由義大利的刑法學家完善它的理論。作爲成文法,則最早出現於1789年的法國《人權和公民權利宣言》,現已是多個國際公約確認的基本人權,香港的《基本法》也有相關原則。中國的《刑事訴訟法》也提出未依法判決不得確定有罪及罪疑從無的原則。坦白從寬,抗拒從嚴。自古以來,不論中外,嫌     

The Presumption of Innocence and its Role in the Criminal Process

Many international instruments proclaim that those who face criminal prosecution ought to be afforded a ‘presumption of innocence’, and the importance and central role of this presumption is recognized by legal systems throughout the world. There is, however, little agreement about its meaning and extent of application. This article considers the purposes of legal presumptions in general and explores various, sometimes contradictory, conceptions of this most famous one. It is equated by many scholars to the requirement that the prosecution prove guilt beyond a reasonable doubt. As such, it is merely a rule of evidence (albeit an important one), with no application pre- or post-trial. The article advocates adoption of a broader, normative approach, namely that the presumption reflects the relationship which ought to exist between citizen and State when a citizen is suspected of breaching the criminal law. As such, it should be promoted as a practical attitude to be adopted by the key protagonists in the justice system, for the duration of the criminal process.     

The Juror,the Citizen,and the Human Being: The Presumption of Innocence and the Burden of Judgment

In this essay, I suggest that the criminal trial is not only about the guilt or innocence of the defendant, but also about the character and growth of the jurors and the communities they represent. In earlier work, I have considered the potential impact of law and politics on the character of citizens, and thus on the capacity of citizens to thrive—to live full and rich human lives. Regarding the jury, I have argued that aspects of criminal trial procedure work to fix in jurors a sense of agency in and responsibility for verdicts of conviction. Here, I draw on those ideas with respect to the presumption of innocence. I suggest that the presumption of innocence works not primarily as legal rule, but rather as a moral framing device—a sort of moral discomfort device—encouraging jurors to feel and bear the weight of what they do. I offer an account of character development in which virtues are conceived of not merely as modes of conduct developed through habituation and practice, but also as capacities and ways of being developed in part through understanding and experience. The criminal trial, framed by the presumption of innocence, can be an experience through which jurors and their communities, by learning what it means and feels like to carry a certain sort of moral weight, may engender a certain set of moral strengths—strengths valuable to them not just as jurors, but also as citizens, and as human beings.     

The Dock on Trial: Courtroom Design and the Presumption of Innocence

This article examines the place of the criminal dock in courtroom design. Challenges to the use of the dock have been based upon the inability of the defendants to hear effectively, to communicate with counsel, to maintain their dignity, and to benefit from the presumption of innocence. Increasingly courts are incorporating secure docks, where defendants are partially or completely surrounded by glass (or in some countries, metal bars). To what extent do these changes and modifications undermine the right to the presumption of innocence? We present the results of an experimental mock jury study that was designed to test whether the placement of the accused influences jurors’ perceptions. We find that jurors are more likely to convict defendants when they are located in a traditional dock or a secure dock, compared to sitting next to their counsel at the bar table. We conclude by discussing the implications for trial procedures, counsel communications, and courtroom design.