The Presumption of Innocence

EI INCUMBIT PROBATIO QUI DI CIT, NON QUI NEGAT-"Proof lies on him who asserts, not on him who denies". 

Since the time of the Roman Jurist, Justinian, in the 6th Century, the law has been that those who make assertions or allegations are required to prove them and those who are charged with crimes are presumed innocent. In other words, the burden of proof lies with the accuser and in today's criminal law, that means that the Government must prove that the defendant, the one accused of the crime, is guilty of the crime beyond a reasonable doubt. The clear association is that one charged with the crime is presumed to be innocent of the crime because one charged with the crime is not required to prove his innocence. This presumption of innocence is often expressed in the phrase, innocent until proven guilty which was coined by the English lawyer, Sir William Garrow (1760-1840). The "presumption of innocence" is in fact a creation by the French Cardinal and Jurist, Jean Lemoine, who believed that most people are not criminals. Because one is presumed innocent, jurors must start the process of a trial by presuming that the person charged did not in fact, commit the crime. As a practical matter, with respect to all facts in a criminal case, the state or government, has the entire burden of proof.

The accused does not have any burden of proof whatsoever, therefore the accused does not have to testify in his own defense or call witnesses or present any evidence at all. If the defendant elects not to testify or present evidence, that decision can not and should not be used against him by the jury. Also, the judge or jury is not to draw any negative inferences from the fact that the accused has been charged with a crime. The jury must decide the case only on the evidence presented during the trial. Although the Constitution of the United States does not use the phrase "presumption of innocence", it's widely accepted in American law and it flows from the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Even the Constitution of Russia states "everyone charged with a crime shall be considered not guilty until his or her guilt has been proven in conformity with the federal law and has been established by the valid sentence of a court of law." The Russian Constitution also says "the defendant shall not be obliged to prove his or her innocence". Now the "presumption of innocence" does not apply to public universities where members of athletic teams accused of crimes are often, prior to trial, expelled from the University and their athletic scholarships are lost. No "presumption of innocence" exists in that instance but only in the criminal law where someone has been charged by the state with a crime. Also, this has not always been the law in civilized society. It was common in 18th Century Europe and for that matter, the New World, for individual suspects to be tortured to extract confessions by force from them. Even today, though not on U.S. soil, terror suspects have been subjected to harsh interrogations that some consider torture in order to extract confessions or to obtain information leading to the arrest of other terror suspects. Here, the government draws a fine line stating initially that the terror suspects are not citizens of the United States and therefore, not afforded the rights and privileges of citizens and further, that these harsh interrogation methods are not taking place on U.S. soil. It is well established today in our country for out citizens that anyone charged with an offense is presumed innocent. This is a fundamental right that is granted to all.