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 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.     

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.     

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.     

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.     

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.     

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.     

论美国刑事诉讼中的证明责任分配标准

在美国的刑事证明责任分配标准中,犯罪构成要件标准一直占据着正统的地位,而无罪推定标准只是昙花一现。无罪推定标准无法长期在美国刑事证明责任的分配中占据一席之地的原因在于:第一,无罪推定标准与美国的犯罪构成模式格格不入;第二,在美国采用无罪推定标准更不利于保护被告人权利。犯罪构成要件标准的优点在于它既与美国对抗式的刑事诉讼模式相契合,又降低了控方的证明负担,有利于提高起诉的效率;它的缺点在于有时很难区分犯罪构成要素与辩护理由。     

Who is Presumed Innocent of What by Whom?

The article analyses the components of the presumption of innocence and tries to clarify some of the conceptual and logical difficulties surrounding the notion of ‘innocence’ and the structure of legal presumptions. It is argued that all conceivable literal interpretations of the maxim make little or no sense, and that the presumptions form is, as such, devoid of original content: presumptions do not explain nor justify anything but are auxiliary norms which refer to the legal consequences spelled out in other norms. Therefore, the presumption of innocence can be used to express any kind of requirement and standard for the criminal process and the treatment of suspect citizens only in a tautological, albeit rhetorically forceful, way. This instrumental use of the presumption of innocence is theoretically without merit but can be practically beneficial as long as there is no developed system of fundamental rights and protections of individual freedoms in a given legal order. Finally, a functional understanding of the presumption of innocence is proposed which gives it an original, though limited field of application as a guarantee of the procedure itself, in particular of the openness of the outcome.     

Unwitting subjects of surveillance and the presumption of innocence

Mass surveillance programmes introduced by several EU Member States influence the protection that citizens enjoy on the basis of fundamental rights and freedoms. This paper focuses on the impact that these programmes have on the legal principle of presumption of innocence. The authors argue that even in those circumstances where the principle does not immediately apply because mass surveillance is undertaken before any criminal charge is issued, the collection of information and potential evidence limits the guarantees offered by the principle during the stages of a legal process. It is argued that mass surveillance programmes undermine the role of the principle of presumption of innocence at the stages of a criminal process and compromise, therefore, the very effectiveness of the legal process.     

Rethinking the presumption of innocence

This article is concerned with what constitutes interference with the presumption of innocence and what justifications there might be for such interference. It provides a defence of a theory of the presumption of innocence that suggests that the right is interfered with if the offence warrants conviction of defendants who are not the intended target of the offence. This thesis is defended against two alternative theories. It then considers what might justify interference with the presumption of innocence. It explores the idea that interference is justified if it is necessary in a democratic society and considers the presumption in relation to the aims of the criminal trial. It is concluded that no good grounds have been provided for interference with the right, and that the right should be regarded as inviolable.

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。     

Psychologising Jekyll,Demonising Hyde: The Strange Case of Criminal Responsibility

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalization. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution, and—incidentally—helps to explain what is wrong with the influential argument that, by the end of the nineteenth Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing the triumph of a practice of responsibility-attribution grounded in the assessment of whether the defendant’s capacities were fully engaged, I argue that the terrain of mental derangement defences in late nineteenth Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process. And precisely because ‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence.     

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.     

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.     

Criminal and Procedural Fairness: Some Challenges to the Presumption of Innocence

The presumption of innocence (POI) requires all judges, juries, and other officials in a trial, to presume and treat any accused of criminal wrongdoing as innocent, until he or she is proven guilty. Although a POI lacks an authoritative definition, this overarching principle of procedural fairness is so robust and vital for the exercise of legal power in matters of criminal law that one rarely finds anyone questioning its standing. In this article I examine the rationale behind the POI from a different perspective. The basic assumption is that this procedural standard captures the tenor of a broader principle which seeks to ensure fairness in criminal proceedings as well as in criminal law doctrine. I argue that honouring a principle of fairness is not exclusively a matter of criminal procedural law but also something that is deeply rooted in other areas of criminal law doctrine. Hence: not maintaining a principle of fairness in criminal law doctrine could lead to the POI being compromised or even undermined. In the article, I draw attention to three areas in which I believe that criminal law policies threaten a principle of fairness: criminalising remote harm, doctrine of ignorance of law and inversed presumptions of guilt. My conclusion is that some solutions to so called doctrinal problems in criminal law, are questionable and their practical consequences (on a general level) are, at least partially, equal to treating an individual (in a trial) as guilty for something for which he or she ought not to be accountable. Hence: gaining the support of a POI could thus work as principle for keeping the use of criminal law moderate and in accordance with a principle of fairness.     

刑事推定与被告人的抗辩责任

在刑事诉讼中 ,刑事推定是认定案件事实的一种重要方法 ,在某种程度上减轻了控方证明的难度。对案件适用推定不是有罪推定 ,而恰恰与无罪推定原则具有相容性。推定具有可反驳性 ,被告要推翻控方的推定必须要提出证据证明 ,承担抗辩责任。此种抗辩责任与控方承担的证明责任不是一个概念。     

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.     

无罪推定原则的确立与口供制度的完善

无罪推定是被追诉者的一项基本权利,也是被追诉者各项诉讼权利的基础。在刑事诉讼中将无罪推定确立为指导刑事诉讼活动的基本准则,就是无罪推定原则。我国应当在刑事诉讼中彻底确立无罪推定原则。无罪推定及其引申的主要内容应当分为三个层次:证明责任、被追诉者的权利和对被追诉者的权利的保障。由于无罪推定假定被追诉者无罪,对控诉的举证责任应由控方承担,被追诉者不承担无罪的举证责任,所以,被追诉者就没有理由配合控方提供自己犯罪的证据,包括口供。我国刑事诉讼法关于"犯罪嫌疑人对侦查人员的提问,应当如实回答"的规定,违背了无罪推定关于被追诉者不应当承担举证或证明责任的基本精神,使得被追诉者负有帮助侦控方履行举证和证明的义务。这一规定实质上表明我国刑诉法要求被追诉者承担举证或证明责任。因此,从无罪推定的这一层面上说"应当如实回答"是不合理的,应当予以取消。