Thursday, September 27, 2018

The presumption of innocence

Back in the Sixth Century, about the time Dianne Feinstein was born, the concept of "innocent until proven guilty" appeared in the Digest of Justinian. It provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat—"Proof lies on him who asserts, not on him who denies". It is there attributed to the second and third century jurist Paul. It was introduced in Roman criminal law by emperor Antoninus Pius.

Dianne was hungover from a wild drunken high school party, so she missed the class where this was taught. We don't teach it anymore, because #MeToo!

Well, it kinda caught on:
"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. This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow (1760–1840). 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.
Garrow: Looks guilty to me.
This right is so important in modern democracies, constitutional monarchies and republics that many have explicitly included it in their legal codes and constitutions.The Universal Declaration of Human Rights, article 11, states: "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."
Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th, and 14th amendments. The case of Coffin v. United States (1895) established the presumption of innocence of persons accused of crimes.

Dianne, call your office.

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