2. The Presumption of Innocence

In this first session on the fundamental rights of the accused we will focus on the presumption of innocence. The presumption of innocence can be said to have a structuring role on the entire criminal justice system, whether procedure, evidence or even the definition of offences. In order to understand how the criminal justice system purports to work, it is therefore important to understand the historical centrality of the presumption of innocence to the system's liberal credentials. The presumption of innocence is also a protection for the most vulnerable.

At the same time, the presumption of innocence regularly comes under attack, and not just from authoritarian governments or conservative groups. Critiques may include groups who see it as a sort of automatic protection granted to certain criminals. In this session we will review some of these developments and assess them normatively. Does any criticism of the presumption of innocence amount to advocacy for a presumption of guilt? Is a middle-ground possible and even desirable? How might the presumption of innocence be reformed, for example in sexual assault cases?

Many practices interfere potentially with the presumption of innocence: these include interrogation, the right to counsel, burden, admissibility and threshold of evidence, cross examination, bail, and even the courtroom's architecture...

Warning: some of the readings include strongly worded views both ways. They are included because they shine light on a complex debate from very different angles. Their inclusion does not amount to endorsement.

Further possible references:

• • Sheppard, Steve. “Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence, The.” Notre Dame L. Rev. 78 (2002): 1165.

  • Weigend, Thomas. “Assuming That the Defendant Is Not Guilty: The Presumption of Innocence in the German System of Criminal Justice.” Criminal Law and Philosophy 8, no. 2 (June 1, 2014): 285–99.

  • Schwikkard, Pamela-Jane. Presumption of Innocence. Juta and Company Ltd, 1999.

  • Aguilar-Garcia, Ana. “Presumption of Innocence and Public Safety: A Possible Dialogue.” Stability: International Journal of Security and Development 3, no. 1 (December 5, 2014). doi:10.5334/sta.en.

  • Galetta, Antonella. “The Changing Nature of the Presumption of Innocence in Today’s Surveillance Societies: Rewrite Human Rights or Regulate the Use of Surveillance Technologies?” European Journal of Law and Technology 4, no. 2 (October 2, 2013). http://ejlt.org/article/view/221.

  • Baradaran, Shima. “Restoring the Presumption of Innocence.” Ohio St. LJ 72 (2011): 723.

  • Fletcher, George P. “Presumption of Innocence in the Soviet Union, The.” UCLA L. Rev. 15 (1967): 1203.

  • Fox Jr, William F. “Presumption of Innocence as Constitutional Doctrine, The.” Cath. UL Rev. 28 (1978): 253.

  • Friedman, Richard D. “Presumption of Innocence, Not of Even Odds, A.” Stan. L. Rev. 52 (1999): 873.

  • Helgeson, Vicki S., and Kelly G. Shaver. “Presumption of Innocence: Congruence Bias Induced and Overcome.” Journal of Applied Social Psychology 20, no. 4 (1990): 276–302.

  • Pickett, Jeffrey G. “Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, The.” Wash. L. Rev. 70 (1995): 883.

  • Raifeartaigh, Una Ni. “Reconciling Bail Law with the Presumption of Innocence.” Oxford Journal of Legal Studies 17, no. 1 (1997): 1–21. Thaler, Jeff. “Punishing the Innocent: The Need for Due Process and the Presumption of Innocence prior to Trial.” Wisconsin Law Review 1978, no. 2 (1978). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2529718.

  • Ashworth, Andrew, and Meredith Blake. “The Presumption of Innocence in English Criminal Law.” Criminal Law Review, 1996, 306–317.

  • Duff, R. A. “Strict Liability, Legal Presumptions, and the Presumption of Innocence,” 2005. http://philpapers.org/rec/DUFSLL.

  • Frank, Mitch. “The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Jurors, Is Either of Them Safe?” Lewis & Clark Law Review 10, no. 2 (2006). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2599787.

  • Gelatt, Timothy A. “The People’s Republic of China and the Presumption of Innocence.” The Journal of Criminal Law and Criminology (1973-) 73, no. 1 (1982): 259–316.

  • Hamilton, Claire. The Presumption of Innocence in Irish Criminal Law:’whittling the Golden Thread’. Irish Academic Pr, 2007.

  • Ingraham, Barton L. “The Right of Silence, the Presumption of Innocence, the Burden of Proof, and a Modest Proposal: A Reply to O’Reilly.” The Journal of Criminal Law and Criminology (1973-) 86, no. 2 (1996): 559–595.

  • Quintard-Morenas, Francois. “The Presumption of Innocence in the French and Anglo-American Legal Traditions.” American Journal of Comparative Law 58, no. 1 (2010): 107–149.

  • Smith, J. C. “The Presumption of Innocence”[1987].” NILQ 38 (n.d.): 223.

  • Tadros, Victor. “Rethinking the Presumption of Innocence.” Criminal Law and Philosophy 1, no. 2 (2007): 193–213.

  • Tadros, Victor, and Stephen Tierney. “The Presumption of Innocence and the Human Rights Act.” The Modern Law Review 67, no. 3 (2004): 402–434.