Loss of Innocence in Common Law Presumptions

This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility with European human rights law and general principles of criminal jurisprudence.     

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 Right to be Presumed Innocent

The presumption of innocence has often been understood as a doctrine that can be explained primarily by instrumental concerns relating to accurate fact-finding in the criminal trial and that has few if any implications outside the trial itself. In this paper, I argue, in contrast, that in a liberal legal order everyone has a right to be presumed innocent simply in virtue of being a person. Every person has a right not to be subjected to criminal punishment unless and until he or she has done something that is criminally wrong. Since disagreements about allegations of criminal wrongdoing are inevitable, the liberal legal order requires a process for determining whether wrongdoing has occurred. In order to preserve the right not to be punished without wrongdoing, the accused person must be presumed innocent throughout this process. The presumption of innocence is therefore as much a basic human right as, for example, the right to bodily integrity or the right to freedom of expression. Specifications of and limitations on the right should therefore be justified not primarily in terms of their instrumental effectiveness in fact-finding or crime control but in terms of the role of the criminal process in a liberal legal order. I consider some implications of this view of the presumption of innocence for the pre-trial process and for substantive criminal law. I argue that the presumption of innocence, understood as a basic human right, should condition the entire pre-trial process; it has, however, minimal implications for the definition of offences.     

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.     

Assuming that the Defendant Is Not Guilty: The Presumption of Innocence in the German System of Criminal Justice

The presumption of innocence is not a presumption but an assumption or legal fiction. It requires agents of the state to treat a suspect or defendant in the criminal process as if he were in fact innocent. The presumption of innocence has a limited field of application. It applies only to agents of the state, and only during the criminal process. The presumption of innocence as such does not determine the amount of evidence necessary to find a defendant guilty. In spite of these limits, the presumption of innocence protects suspects and defendants from specific dangers inherent in the criminal process. German procedure law is used to show these areas.     

认真对待刑事推定

对我国刑事立法和司法中44个推定的实证分析表明,刑事推定在放松控方证明要求的同时又将存疑风险转移到被告人身上,背离了排除合理怀疑的证明标准,直接危及无罪推定原则所保护的价值与利益。对排除合理怀疑的证明标准不应作纯程序的解读,有必要将其与实体意义上的惩罚权相联系。对刑事推定的规制,本质上属于对国家刑罚权的限制,只有在满足相应的实体与程序条件时,才允许适用有利于控方的刑事推定。     

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.     

无罪推定原则的意义解读——一种诉讼法哲学分析

无罪推定已经成为现代国家的一项刑事诉讼法原则乃至宪法原则。无罪推定在各国立法例中虽然有肯定式和否定式两种表述方式 ,但其基本内涵却是相同的 ,即 :任何人在没有充分证据证明并由法院判决确定有罪之前 ,应作为无罪公民对待。作为一种关于正义的规范性命题 ,无罪推定原则具有内在的基本特征和诉讼程序规则 ,具有深厚的社会哲学基础和重要的政治法律意义。在建设社会主义法治国家进程中 ,无罪推定原则的进一步发展与完善 ,成为当代中国刑事诉讼法制现代化的迫切需要和时代课题。     

The Presumption of Innocence and the Human Rights Act

There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.     

'Ritual Individualization': Creative Genius at Sentencing,Mitigation, and Conviction

Judges and lawyers must regard themselves as upholding cherished values, including the presumption of innocence; free defendant choice and participation; and attention to the unique individual. Yet, everyday criminal work also demands compliance with a system of perfunctory, mass case disposal. How is this potential contradiction addressed? Conceiving the criminal‐penal process as a tripartite rite of passage, the article originates the concept of ‘Ritual Individualization’ (RI). RI's creative pre‐sentencing casework accomplishes four key transformations in how the person is re‐presented to the court for sentencing. First, the person's unique voice and personal story is revealed, exhibiting her as a freely participating individual. Secondly, in doing so, the pertinence of social disadvantage tends to be minimized. Thirdly, ambiguous admissions of guilt are translated as freely‐given, full, and sincere confessions. Fourthly, the person is manifested as a culpable offender ready for punishment. The article considers new research agendas opened up by the implications of Ritual Individualization.     

A Criminal Injustice System? Sex Offender Suspects and Defendants

The purpose of this paper is to open up a discussion regarding the potential shift from the presumption of innocence to a presumption of guilt regarding those suspected of or charged with sexual offending. It is acknowledged that further investigation is needed and it is hoped that this discussion is one of many. The crux of this paper therefore is that sex offender suspects and defendants potentially find themselves in a criminal injustice system. Whilst the focus is predominantly on ‘victims’ (usually female) and people suspected or charged with sexual offending (usually male) within the criminal justice system in England and Wales the concerns articulated here are not confined to this context. For example such concerns are echoed in relation to the potential injustices occurring on American campuses. This demonstrates that this is a domestic and international situation and a situation that extends beyond the criminal justice system. We argue that what is occurring at home and abroad has to be contextualised with regard to public, media and official attitudes and approaches to ‘victims’, suspects, defendants, sex, sexual consent, sexual offending and a subsequent shift from the presumption of innocence to a presumption of guilt. It is argued that not only is the presumption of innocence undermined by the presumption of guilt regarding suspects and defendants in cases of sexual offending, it is also undermined in England and Wales by the victim personal statement (VPS). The VPS contains and promotes the idea that there is a ‘victim’ and ‘offender’ before this has been legally established in a court of law. These assumptions embodied within the VPS weaken the principle and practice of the presumption of innocence. The safeguard of the presumption of innocence is potentially under threat and the result is an even greater potential for miscarriages of justice and wrongful convictions.     

The penology of racial innocence: the erasure of racism in the study and practice of punishment

In post–civil rights America, the ascendance of “law-and-order” politics and “postracial” ideology have given rise to what we call the penology of racial innocence. The penology of racial innocence is a framework for assessing the role of race in penal policies and institutions, one that begins with the presumption that criminal justice is innocent of racial power until proven otherwise. Countervailing sociolegal changes render this framework particularly problematic. On the one hand, the definition of racism has contracted in antidiscrimination law and in many social scientific studies of criminal justice, so that racism is defined narrowly as intentional and causally discrete harm. On the other hand, criminal justice institutions have expanded to affect historically unprecedented numbers of people of color, with penal policies broadening in ways that render the identification of racial intent and causation especially difficult. Analyses employing the penology of racial innocence examine the ever-expanding criminal justice system with limited definitions of racism, ultimately contributing to the erasure of racial power. Both racism and criminal justice operate in systemic and serpentine ways; our conceptual tools and methods, therefore, need to be equally systemic and capacious.     

The Presumption of Punishment

The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed, historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due process, as developed throughout English and US. Colonial history leading up to the formation of the US. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred.     

论刑事被告人宪法权利的保障——从无罪推定角度所做的分析

无罪推定原则是刑事犯罪嫌疑人、被告人宪法基本权利保障的原则之一。随着我国社会主义民主与法治的发展,从立法与司法的双重视角贯彻和推行无罪推定原则,不仅有利于保障犯罪嫌疑人的人权,而且有利于推动我国的法治进程。我国应在《宪法》中明文规定无罪推定原则,立法保障犯罪嫌疑人的沉默权,进一步明确与施行非法证据排除制度。     

论程序正义视域下的中国刑辩律师困境

律师职业自产生之初就与正当程序有着紧密联系,正是程序正义赋予了律师职业以内在的价值追求.但现今的中国刑事辩护律师却处境尴尬：他们参与刑事辩护率低迷;在刑事诉讼中的各项权利难以保障;有时深受社会公众与媒体舆论的怀疑、攻讦,甚至有可能面临牢狱之灾.一系列问题表明,刑事辩护作为司法程序中的重要环节,正日益失去其维护司法公正的的意义和作用.因此,要突破律师现今面临的种种困境,必须在现念上和制度上进一步落实程序正义.     

论刑事推定的合宪性审查

刑事推定不仅涉及实体法上犯罪构成要件的设置和程序法上证明责任的分配与承担,还涉及司法权力的重新配置,对其合宪性进行审查是亟待引起重视的一个新问题。推定的合宪性审查标准是多元的。无罪推定是现代刑事法的一项基本原则,是被告人应该享有的重要的宪法性权利,探讨推定的合宪性审查,必须审视推定与无罪推定之间的关系。     

Punishment and rehabilitation

Conclusion Despite partial amendments to criminal legislation the existing Czech criminal system is marked by its punitive character. Despite a slight change in attitudes towards punishment after 1990, the nature of penalties has not been adapted to the new goals. The punishment which fulfils the retributive, i.e. deterrent objective will not automatically become a means of re-education and rehabilitation merely because we change its objective in law. The new purpose of punishment requires changes in contents of punishment, i.e. searching for effective ways of handling offenders both outside and inside prisons. We have to renounce the idea that rehabilitation of offenders can be achieved by coercion. We have to respond to offending by imposing an adequate punishment which must be executed paying full respect to human rights and dignity. In this context, any offender must be able to exercise his or her right to request conditions and means for social reintegration (training, improvement of skills, medical treatment etcetera), if the offender is really interested in rehabilitation. We can only create conditions, we cannot reintegrate anybody by force. Rehabilitation in the Czech Republic continues to be more a good intention than a reality.     

犯罪故意认定的证据法学解读

实体法上广为讨论的犯罪故意认定问题,最终要在司法证明过程中进行.在罪过难辨的疑案中,裁判者应坚持无罪推定原则,作为区分故意与过失的最后一道屏障.对于故意这种“无法定义只能描述”的复杂心理现象,以实体法上的抽象概念去界定不如以证据法上直观的类型化判断来把握.故意“概念的类型化”,是以认识程度和意志程度之强度互补的弹性组合...     

无罪推定原则在证据法中的体现

无罪推定是基于人生来无罪、也无犯罪基因这一常态而作出的一种假定。刑事诉讼程序是以证据为依据的动态逻辑证明过程并以证据为核心构件,因而,无罪推定原则在证据法中也具有重要意义。它在证据法中主要体现为以下具体规则：证据裁判主义、非法证据材料排除规则、无罪推定原则支配下的刑事诉讼证明与无罪推定原则下的证明责任。