Presumption of innocence

The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat (the burden of proof is on the one who declares, not on one who denies), is the principle that one is considered innocent unless proven guilty.

In many states, presumption of innocence is a legal right of the accused in a criminal trial, and it is also regarded as an international human right under the UN's Universal Declaration of Human Rights, article 11. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond reasonable doubt. If reasonable doubt remains, the accused is to be acquitted. Under the Justinian Codes and English common law, the accused is presumed innocent in criminal proceedings, and in civil proceedings (like breach of contract) both sides must issue proof. Under Anglo-American common law, the accused is always presumed innocent in all types of proceedings; proof is always the burden of the accuser. The same principle is recognized by Islamic law.


Roman law

The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat[1]"Proof lies on him who asserts, not on him who denies".[2] It is there attributed to the second and third century jurist Paul. It was introduced in Roman criminal law by emperor Antoninus Pius.[3]

Islamic law

Similar to that of Roman Law, Islamic law also holds the principle that the onus of proof is on the accusor or claimant based on a hadith documented by Imam Nawawi.[4] 'Suspicion' is also highly condemned, this also from a hadith documented by Imam Nawawi[5] as well as Imam Bukhari [6] and Imam Muslim.[7]

After the time of Muhammad, the fourth Caliph Ali ibn Abi Thalib has also been cited to say 'Avert the prescribed punishment by rejecting doubtful evidence.' [8] Under western legal systems, like English and Anglo-American Common Law, unlike in Islamic law, this is always left to the Trier of Fact, which was either a high lord (like the King), a judge, or a jury. In Islam this is not established. Often a religious leader or other Elder would sit as Trier of Fact. Other time Trier of Fact can be the prosecutor and executioner if Family Honor is questioned.

Middle Ages in Europe

After the fall of the Roman Empire, Europe fell back on a Germanic system that presumed guilt. The accused could prove his innocence by having, for example, twelve people swear that he could not have done what he was accused of. This tended to favor the nobility over the lower classes.[9]

Common law

In sources from common law jurisdictions, the expression appears in an extended version, in its original form and then in a shortened form (and in each case the translation provided varies). As extended, it is: Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit"The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof."[10] As found in its original form, it is (as above): Ei incumbit probatio qui dicit, non qui negat"The proof lies upon the one who affirms, not the one who denies." [11][12] Then, shortened from the original, it is: Ei incumbit probatio qui"the onus of proving a fact rests upon the man who".[13]

Civil law

The maxim or its equivalent has been adopted by many civil law systems, including Brazil,[14] France,[15] Italy,[16][17] Philippines,[18] Poland,[19] Romania[20] and Spain.[21]


"Presumption of innocence" serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt (or some other level of proof depending on the criminal justice system) and that the accused bears no burden of proof.[22] This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow (1760–1840).[23] Garrow insisted that accusers be robustly tested in court. An objective observer in the position of the juror must reasonably conclude that the defendant almost certainly committed the crime.[24]

The presumption of innocence was originally expressed by the French cardinal and jurist Jean Lemoine in the phrase "item quilbet presumitur innocens nisi probetur nocens (a person is presumed innocent until proven guilty)", based on the legal inference that most people are not criminals.[25] However, this referred not merely to the fact that the burden of proof rests on the prosecution in a criminal case, but the protections which a defendant should be given-prior notice of the accusation being made against them, the right of confrontation, right to counsel, etc.[26] It is literally considered favorable evidence for the accused that automatically attaches at trial.[27] It requires that the trier of fact, be it a juror or judge, begin with the presumption that the state is unable to support its assertion.[25] To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:[22]

  1. With respect to the critical facts of the case—whether the crime charged was committed and whether the defendant was the person who committed the crime—the state has the entire burden of proof.
  2. With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against them.
  3. The jury or judge is not to draw any negative inferences from the fact the defendant has been charged with a crime and is present in court and represented by an attorney. They must decide the case solely on evidence presented during the trial.

This duty on the prosecution was famously referred to as the “golden thread” in the criminal law by Lord Sankey LC in Woolmington v DPP [1935] AC 462:

Throughout the web of the English criminal law one golden thread is always to be seen—that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception...

The fundamental right

This right is so important in modern democracies, constitutional monarchies and republics that many have explicitly included it in their legal codes and constitutions:

Modern practices

Article 48 of the Charter of Fundamental Rights of the European Union affirms the right to the presumption of innocence

Some legal systems have employed de jure presumptions of guilt, such as at an order to show cause criminal proceeding. Otherwise, accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce failures to ensure that suspects are treated well and are offered good defence conditions. Typical infringements could include:

Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalistic codes of ethics state that journalists should refrain from referring to suspects as though their guilt is certain. For example, they use "suspect" or "defendant" when referring to the suspect, and use "alleged" when referring to the criminal activity that the suspect is accused of.

More subtly, publishing of the prosecution's case without proper defence argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects. Private groups fighting certain abuses may also apply similar tactics, such as publishing the real name, address, and phone number of suspects, or even contacting the suspects' employer, friends and neighbors.

Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights organizations, such as the Canadian Civil Liberties Association consider pre-employment drug testing, while legal, as violating this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent through the test.[33] Similarly, critics argue that prevailing policies of zero tolerance toward sexual harassment or racial discrimination show a strong presumption of guilt. These dispositions were meant to ease the burden of proof on the victim, since in practice harassment or discrimination practices are hard to prove.

Civil rights activists note that the well-meaning practices so adopted may have a deleterious effect on justice being served. An example is the use of a screen in sexual assault cases, which is set up to prevent the complainant from being distressed at the sight of the accused. Where a victim was in fact victimized by the accused, this may be argued to serve the principles of therapeutic justice.[34]

See also


  1. "Digesta seu Pandectae 22.3.2". Grenoble: Université Pierre-Mendés-France. Retrieved 2010-10-13.
  2. Watson, Alan, ed. (1998) [1985]. "22.3.2". The Digest of Justinian. Philadelphia: University of Pennsylvania Press. ISBN 0-8122-1636-9.
  3. See Bury, pg. 527
  4. Imam Nawawi. 1977. An-Nawawi’s Forty Hadith (Second Edition English Translation by Ezzedin Ibrahim). Damascus: Holy Koran Pub. House, Hadith No. 33
  5. Riyaadus Shaaliheen, Hadith No. 1573
  6. Sahih Al-Bukhari (English Version), Vol. 8, Book 73, Hadith 90
  7. Sahih Muslim (English Version), Book 32, Hadith 6214
  8. Imam ibn Hajar's Bulugh al-Maram (English Version), Book 10, Hadith 1260
  9. F. Nan Wagoner (1917-06-01). "Wagoner's Legal Quotes web page". Retrieved 2010-10-13.
  10. Bouvier's Maxims (1856), citing Roman law and then various treatises, q.v.
  11. "Just Quotes web site". Retrieved 2010-10-13.
  12. "Glossary". Retrieved 2010-10-13.
  13. Decree-Law 3689|date=August 2012
  14. 1 2 Code de procédure pénale, article préliminaire (French)
  15. "ForoEuropo Italia". Retrieved 2010-10-13.
  16. "Assomedici.It". Assomedici.It. 1993-01-29. Retrieved 2010-10-13.
  17. People vs. Masalihit, decision of the Supreme Court of The Philippines
  18. "National Constitutional Law Related to Article 48 – Presumption of Innocence and Right to Defence". European Union Agency for Fundamental Rights. Retrieved 2011-05-16.
  19. "Constitution of Romania, Article 23". Retrieved 2013-06-13.
  20. Valentin Anders (2010-09-08). "Latin legal maxims in Spanish". Retrieved 2010-10-13.
  21. 1 2 Mueller, Christopher B.; Laird C. Kirkpatrick (2009). Evidence; 4th ed. Aspen (Wolters Kluwer). ISBN 978-0-7355-7968-2. pp. 133–34.
  22. Moore, Christopher (1997). The Law Society of Upper Canada and Ontario's lawyers, 1797–1997. University of Toronto Press. ISBN 0-8020-4127-2.
  23. Rembar, Charles (1980). The Law of the Land. New York: Simon & Schuster.
  24. 1 2 Words and Phrases 1914, p. 1168
  26. Coffin v. United States, 156 U.S. 432 (1895) “the presumption of innocence is evidence in favor of the accused, introduced by the law in [their] behalf”
  27. Code de procédure pénale, article 304 (French).
  28. "The Italian Constitution" (PDF). The official website of the Presidency of the Italian Republic.
  30. "". Retrieved 2010-10-13.
  31. "". Retrieved 2011-04-27.
  32. "Drug Testing: A Bad Investment" (PDF). American Civil Liberties Union. 1999. Retrieved 2014-05-08.
  33. "". Retrieved 2010-10-13.


  • "Judicial and Statutory Definitions of Words and Phrases". St. Paul: West Publishing Co. 1914. 
  • Bury, J. B. (1893). A History of the Roman Empire from its Foundation to the Death of Marcus Aurelius.

External links

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