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Presumption of guilt is the principle that one is considered guilty unless proven innocent: thus the burden of proof is on the accused, not the accuser.[1] Crime control requires that 'somebody - victim, prosecutor, or police - believes the defendant to be guilty', otherwise 'no defendant would ever face trial'.[2] Presumption of guilt, prioritising speed and efficiency over reliability, may prevail however if due process is absent. In such cases the screening processes operated by police and prosecutors are perceived as reliable indicators of probable guilt.[3]

Presumption of guilt may take many forms; guilt by association, collective guilt, the obtaining of a confession under duress or torture, or pre-emptive action such as drone strikes.[4]

Presumption of guilt shifts the burden of proof onto the defendant, who must then prove innocence to achieve acquittal. The phrase has been in use since at least the 1840s.[5]

Presumption of guilt is a denial of an international human right under the UN's Universal Declaration of Human Rights, Article 11. Under the presumption of guilt, the defence must collect and present compelling evidence to the trier of fact (a judge or a jury). The defence must, in most cases prove that the accused is innocent.

Contents

TypologyEdit

Presumption of guilt may take differing forms:

  • Collective guilt, for example the belief that 'all Muslims are terrorists';[10] conversely, the terrorist may believe his victims to be collectively guilty of some perceived injustice, as in the case of 9/11. A belief in Jewish deicide expresses the view that 'all Jews are Christ-killers',[11] though in fact only the Romans had the legal authority to crucify someone.[12]
  • Rushing to judgement, for example equating arrest with conviction.[13]
  • A frameup, usually an admission presumably made under duress. All such admissions should be treated with skepticism without actual video or a signed statement.[15]

MotivationEdit

  • Short-term political gain and the destruction of political rivals, as in the Stalinist show trials of the 1930s.
  • Psychological game-playing; the aggressive accuser is said to play mind games, while the victim is on a guilt trip. Guilt feelings may be residual from early childhood, in which all of us are powerless and presumption of guilt ('you naughty boy', 'shame on you, wicked child') is often the norm.[22][23]
  • A mind-set which favours Apocalypticism. According to Jonathan Schell, the religiously orthodox may 'take it upon themselves to please a wrathful God' through the 'extinction of 'evil' mankind'.[24] Apocalypticism attracts 'desperate, humiliated and defeated' people, says John Michael Greer; it 'offers a free ticket out of the troubles of everyday life'.[25]

Examples in HistoryEdit

In ancient Greece, public officials were elected for very limited terms of office and barred from re-election, on the presumption that too long an incumbency would lead to abuse of power. Thucydides and Aristophanes[26] pointed out that the crowd were too easily swayed by oratory and emotion. As Lord Acton wrote in the 19th century, again expressing presumption of guilt, "Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men,..."[27]

Adolf Hitler was a persistent presumer of guilt in those he disliked. Being allegedly a psychopath and narcissist[28] he tended to blame others when things went wrong. From 1918 he blamed Germany's defeat on the November criminals of the Weimar Republic for negotiating a truce when Germany still had the capacity to fight on; in Mein Kampf he wrote; 'every third German is a traitor'.[29] In 1945, when it was clear that Germany could not win the war, Hitler wished to punish the entire German nation for failing to meet his expectations, according to Sebastian Haffner.[30]

Between 1947 and 1956, many US citizens were unfairly accused of being communist agents or sympathisers and had their careers ruined during the era of McCarthyism and the Second Red Scare, or were even killed like Julius and Ethel Rosenberg. The McCarthyites 'never produced a single Communist spy whose guilt was proved in court.'[31]

In 1989, Ayatollah Khomeini, supreme leader of Iran, pronounced a death sentence by fatwa on Salman Rushdie and anyone assisting publication of his book, The Satanic Verses; 'I call on all Muslims wherever they may be in the world to kill them without delay'. the Fatwa was condemned for violating national sovereignty, freedom of speech, and the Muslim principle of fiqh.[32]

Examples in sexual violence and harassmentEdit

The American actor and producer Jeremy Piven has spoken out against the Me Too movement, which, he claims, 'put lives in jeopardy without a hearing, due process or evidence'. Writing about Piven's comment, journalist Brendan O'Neill, suggests that the presumption of innocence, which barrister and writer John Mortimer described as a 'golden thread', is being weakened.[33]

High Court judge Sir Richard Henriques has criticized UK police training and methods which allegedly assert that 'only 0.1% of rape allegations are false', and in which all complainants are treated as 'victims' from the start. In three cases which later collapsed, including those of Liam Allan and Danny Kay, police withheld vital evidence from the defence. [34] It is difficult to assess the true prevalence of false rape allegations, but it is generally agreed that rape accusations are false about 2% to 10% of the time.[35][36]

In March 2017 Elizabeth Truss, Justice Secretary, said "that from September juries across the country will watch the pre-recorded cross-examinations during a trial".[37]

In 1990, Yale professor and radical feminist Catharine MacKinnon, is alleged to have addressed a graduation crowd thus; 'look about you. Statistics tell us you have just laid eyes on someone guilty of sexual assault'.[38] In her 1989 book Towards a Feminist Theory of the State she alleged that 'all sex is akin to rape'.[39]

InternationallyEdit

In China there has been a 'spate of wrongful convictions' and alleged misconduct by police and prosecutors.[40]

In Turkey, a suspect arrested after the July 2016 coup attempt was asked to pay his defence lawyer $80,000, reflecting the cost to the lawyer's career; he would be thrown off the bar. 'Bogus and ludicrous charges' and confessions obtained under torture, were allegedly widespread.[41]

In Japan the criminal justice system has been criticized for its wide use of detentions, suspects were forced to make false confessions during interrogations.[42]

In the United States, the expulsion/suspension process that many states use for expelling/suspending a pupil do not presume a pupil innocent, with some states presuming pupils guilty.[43]

In popular cultureEdit

  • Presumed Guilty is a 1993 thriller by Tess Gerritsen in which a woman is wrongly accused of murdering her lover.
  • Presumption of Guilt is a novel by Archer Mayor in which detective Joe Gunther investigates a forty-year-old murder case.

See alsoEdit

ReferencesEdit

  1. ^ University of Pennsylvania Law Review, vol 113 no1 1964, 'two models of the criminal process', Herbert Packer, p 12,13
  2. ^ legal dictionary.thefreedictionary.com/presumption+of+guilt
  3. ^ Herbert Packer, University of Pennsylvania Law Review 1964, 'two models of the criminal process, p 10,11,12
  4. ^ Robertson, Geoffrey (13 June 2012). "Drone attacks go against every human rights principle in the book". New Statesman. Retrieved 28 April 2019.
  5. ^ T. C. Granger. A digest of the law of evidence in criminal cases W. Benning & Company, 1846
  6. ^ Jeremy Laurence and Ju-Min Park, 'Guilty by association: growing up in hell of North Korean gulag', Reuters, may 4, 2011
  7. ^ National Review, 'The new Ivy League lynch mobs', Brendan O'Neill, 23/2/2016
  8. ^ Vicky Baker, 'Rape victim sentenced to 200 lashes and six months in jail', The Guardian, 17 November 2017
  9. ^ Neela Debnath, 'rape victims still blamed for sexual violence in Somalia', The Independent, 6 May 2015
  10. ^ Spencer Case, 'Islamist Terror and Collective Guilt', national Review, 4 April 2016
  11. ^ Peter J Tomson, Presumed Guilty: How the Jews were Blamed For the Death of Jesus, Fortress Press, 2003
  12. ^ Giles Fraser, 'Christians must understand that for Jews the cross is a symbol of oppression', The Guardian, 25 April 2014
  13. ^ Luke Gittos, 'Eric Bellquist and the presumption of innocence', Spiked, 2017-08-17
  14. ^ Japan Times, 'Justice system flawed by presumed guilt', Keiji Hirano, 13/10/2005
  15. ^ Japan Times, 'Justice system flawed by presumed guilt' Keiji Hirano, 13/10/2005
  16. ^ Washington Post, 'How to make an innocent plead guilty', Jeffrey Stein, 12/1/2018
  17. ^ Gotham Gazette, 'With parking tickets, New Yorkers are guilty until proven innocent', Emily Jane Goodman, 7/10/2010
  18. ^ New York Review, 'How internment became legal', John Townsend Rich, 22/6/2017
  19. ^ Robertson, Geoffrey (13 June 2012). "Drone attacks go against every human rights principle in the book". New Statesman.
  20. ^ Bryan Stevenson, 'A presumption of guilt', The New York Review, 13 July 2017
  21. ^ Keith Findley, 'The presumption of Innocence exists in theory, not reality', Washington Post, 19/1/2016
  22. ^ Wayne Dyer, Your Erroneous Zones, Warner Books, 1976, p 100
  23. ^ Eric Berne, Games People Play (book), Penguin 1964, pp 73-75
  24. ^ Jonathan Schell, The Fate of the Earth, Picador, 1982, p133
  25. ^ John Michael Greer, Apocalypse, Quercus, 2012, pp 35, 36, 198
  26. ^ M S Silk, Aristophanes and the Definition of Comedy, Oxford University Press, 2002, p 372
  27. ^ Letter to Bishop Mandell Creighton, April 5, 1887 published in Historical Essays and Studies, edited by J. N. Figgis and R. V. Laurence (London: Macmillan, 1907)
  28. ^ see Wikipedia article psychopathography of Adolf Hitler
  29. ^ Sebastian Haffner, The Meaning of Hitler, Phoenix 2003, p 154
  30. ^ Sebastian Haffner, The Meaning of Hitler, Phoenix 2003, p 120, 157, 160, 164
  31. ^ Don E Carleton and John Henry Faulk, Red Scare: Right-Wing Hysteria, Fifties Fanaticism, and Their Legacy in Texas, University of Texas Press, 2014, p x
  32. ^ Newsweek, 27 February 1989
  33. ^ Brendan O'Neill (journalist), 'Whatever Happened to the Presumption of Innocence?', Los Angeles Times, 16 November 2017. [1]. Accessed 6 February 2018.
  34. ^ Marco Giannangeli, 'Police must stop training 'Presumption of Guilt', says High Court judge', Daily Express, 24 December 2017. [2]. Accessed 6 February 2018.
  35. ^ DiCanio, M. The encyclopedia of violence: origins, attitudes, consequences. New York: Facts on File, 1993. ISBN 978-0-8160-2332-5.
  36. ^ Lisak, David; Gardinier, Lori; Nicksa, Sarah C.; Cote, Ashley M. (2010). "False Allegations of Sexual Assualt [sic]: An Analysis of Ten Years of Reported Cases" (PDF). Violence Against Women. 16 (12): 1318–1334.[3]. Accessed 7 February 2018.
  37. ^ Laura Hughes, "Rape victims to be spared court cross-examination as Government brings forward plans for pre-recorded video evidence". Daily Telegraph, 16 March 2017. [4]. Accessed 7 February 2018.
  38. ^ Stuart Taylor Jr and KC Johnson, Until Proven Innocent, St Martin's Press, 2013, chapter 24
  39. ^ Stuart Taylor Jr and KC Johnson, Until Proven Innocent, chapter 24
  40. ^ Jonathan Kaiman, 'China Suspects presumed guilty until proven innocent', The Guardian, 20 May 2013
  41. ^ Macit Ferhan, 'In Turkey, You are Guilty until proven Innocent', The Globe Post, 7 November 2016
  42. ^ Keiji Hirano, 'Justice system flawed by presumed guilt', The Japan Times, 13 October 2005
  43. ^ "Article 1 of Chapter 6 of Part 27 of Division 4 of Title 2 of the California Education Code". California Office of Legislative Counsel. Retrieved 1 March 2019.
  44. ^ Karen Dolan, 'The Presumption of innocence doesn't apply to my child', Washington Post, 21 January 2016

External linksEdit