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The Right to be Presumed Innocent

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Abstract

The presumption of innocence has often been understood as a doctrine that can be explained primarily by instrumental concerns relating to accurate fact-finding in the criminal trial and that has few if any implications outside the trial itself. In this paper, I argue, in contrast, that in a liberal legal order everyone has a right to be presumed innocent simply in virtue of being a person. Every person has a right not to be subjected to criminal punishment unless and until he or she has done something that is criminally wrong. Since disagreements about allegations of criminal wrongdoing are inevitable, the liberal legal order requires a process for determining whether wrongdoing has occurred. In order to preserve the right not to be punished without wrongdoing, the accused person must be presumed innocent throughout this process. The presumption of innocence is therefore as much a basic human right as, for example, the right to bodily integrity or the right to freedom of expression. Specifications of and limitations on the right should therefore be justified not primarily in terms of their instrumental effectiveness in fact-finding or crime control but in terms of the role of the criminal process in a liberal legal order. I consider some implications of this view of the presumption of innocence for the pre-trial process and for substantive criminal law. I argue that the presumption of innocence, understood as a basic human right, should condition the entire pre-trial process; it has, however, minimal implications for the definition of offences.

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Notes

  1. For this picture of the legal order, see Kant (1996) (page references will be to the Royal Prussian Academy edition of Kant’s works); Ripstein (2009); Byrd & Hruschka (2010); Thorburn (2011). For a version of this picture with perfectionist elements, see Brudner (2004); Brudner (2009).

  2. It appears that the detention (in the spring of 2011) of the Chinese artist Ai Weiwei is best understood this way, as the use of an ordinary criminal prosecution to discourage his expression of his opinions. Unlike dissidents such as Liu Xiaobo, who was convicted of the political offence of incitement to subvert state power, Ai was alleged to have evaded taxes.

  3. Kant (1996, pp. 6:237–8). I say the “potential for the exercise of purposiveness” because actual exercises of purposiveness typically require acquired rights as well.

  4. Kant (1996, p. 6:238, original emphasis, translation modified). Gregor translates “unbescholten” as “being beyond reproach”. That translation might suggest that the person could never be reproached, but clearly Kant means only that wrongdoing is a prerequisite to being reproached. The translation “without reproach” follows Byrd and Hruschka (2010, p. 82).

  5. Kant (1996, p. 6:238).

  6. See also Byrd and Hruschka (2010, pp. 82–3). For a similar thought in a slightly different context, see Duff (1986, p. 140).

  7. Duff (2007, p. 197).

  8. In the leading Canadian case of R. v. Oakes, [1986] 1 S.C.R. 103, Dickson C.J.C. held that the constitutional right to be presumed innocent not only put the burden of proof on the Crown but required the prosecution to prove all the elements of the offence beyond a reasonable doubt. For a summary of the prosecution’s burden of proof in French criminal trials, see Bouloc (2008, paras. 121–151).

  9. Laudan (2006, Chapter 1).

  10. Compare the overview of traditional rationales in Morton and Hutchinson (1987, pp. 1–6); see also Oakes, pp. 119–20.

  11. Ho (2008, pp. 173–85).

  12. Duff (1986, Chapter 4).

  13. Duff (2012, p. 53).

  14. This view goes back at least as far as Thayer (1897). See, more recently, Bell v. Wolfish, 441 U.S. 520, pp. 533–534 (1979); Laudan (2006, pp. 93–96). In a recent monograph, Stumer (2010) thoroughly analyzes the presumption of innocence at trial, without taking a position on its application in other contexts.

  15. Compare Ho (2012).

  16. So the court in Bell v. Wolfish was right to consider whether the pre-trial detention of the applicant was punitive; but it was wrong to hold that the presumption of innocence was irrelevant to the permissibility of that detention.

  17. For the view that the presumption of innocence applies in some manner before the trial, see R. v. Pearson, [1992] 3 S.C.R. 665, pp. 683–688, per Lamer C.J.C.; Laufer (1995); Kitai (2002); Quintard-Morénas (2010); Baradaran (2011); Ho (2012, pp. 261–70). None of these writers connects the presumption of innocence to the right to be without reproach, but they do recognize connections between the presumption of innocence and human freedom and dignity.

  18. Laudan (2006, p. 6).

  19. See Byrd and Hruschka (2010, p. 82).

  20. The Thin Blue Line, Season One, Episode Three, “Night Shift”.

  21. This thought seems to have motivated Kennedy J.’s broad construction of the power to search a person who is arrested for a minor offence and then detained in a jail: Florence v. Board of Chosen Freeholders of County of Burlington (2012), 566 U.S. __, p. 14 (slip opinion).

  22. Compare Ashworth (2006, p. 250), arguing that the presumption of guilt “would fail to respect the dignity, liberty and autonomy of individuals”. The operation of a Stalinist version of Grim’s rule is illustrated, fictionally, in Serge (1949).

  23. This is a fairly common occurrence in Canada, in that delays in bringing serious criminal cases to trial are so extreme and so widespread that many accused who are eventually convicted receive significant sentencing credit for pre-trial custody. If pre-trial detainees were presumed guilty, the detention could be understood as a form of punishment apart from the subsequent conviction, and it would be normatively unproblematic; but if they are presumed innocent, their detention is harder to justify.

  24. Antony Duff does not adopt this rule himself, but urged me to consider it in contrast to Grim’s rule; see also the attitude of the “detached observer” in Duff (2007, p. 196).

  25. More precisely, that subset of acts affecting rights that wrongfully affect rights; because many, perhaps most, acts affecting rights are themselves rightful, e.g., consensual touching, entering into a contract, making a will.

  26. Compare Laudan (2006, p. 95), taking the presumption of innocence to require participants in the justice system to subjectively believe in the innocence of the accused.

  27. In some jurisdictions, this does seem to be the standard for prosecution, but it is unnecessary to protect and certainly not required by the presumption of innocence.

  28. See Boucher v. The Queen, [1955] S.C.R. 16, pp. 23–24.

  29. See Laudan, (2006 pp. 93–95).

  30. Compare Duff (1986, p. 140).

  31. The key provision is s. 515 of the Criminal Code, R.S.C. 1985, c. C-46. The most comprehensive secondary source is Trotter (2010).

  32. Criminal Code, s. 515(10)(c).

  33. Pre-trial detention, as currently practiced in the common law world, is difficult to reconcile with a liberal legal order. The following words, first written nearly 60 years ago, are unfortunately still true: “We should … do everything possible to treat [a person charged with an offence] as if he were innocent, consistent with the demands of the public safety and the due trial of the charge. If we were serious in this endeavour we would do much to ameliorate the position of defendants, by improving the conditions of those in prison on remand …” Williams (1958, pp. 151-2). Compare, more recently, Kitai-Sangero (2007); Duff (2013).

  34. That is roughly the definition of the offence usually known as “possession of a weapon for dangerous purpose” in Canadian law under s. 88 of the Criminal Code, see also the definition of “weapon” in s. 2. Any object can be a “weapon” under these definitions if used as defined or if possessed with the requisite intention. The Code also contains, of course, a host of offences relating to specific weapons such as firearms.

  35. Compare Tadros (2007); Tomlin (forthcoming). Compare the constitutional argument rejected by the Ontario Court of Appeal in R. v. Transport Robert Ltée (2003), 234 D.L.R. (4th) 546 (Ont.C.A.). The accused corporation was charged with an offence of absolute liability and argued that the legislative failure to require proof of any fault element offended the presumption of innocence under s. 11(d) of the Canadian Charter. The court disagreed, holding that the presumption of innocence was violated only where the offence definition reversed the onus on a statutory element (as in Definition #2 in the example in the text) or eliminated a constitutionally required fault element. The court then turned to the constitutional arguments in favour of requiring a fault element and concluded that they did not apply to this offence. So the presumption of innocence was not violated.

  36. Duff (2007, p. 201); Stumer (2010, pp. 52–65).

  37. Cory J. combined these two arguments, causing tremendous confusion, in R. v. Pontes, [1995] 3 S.C.R. 44; for an attempt to make sense of Pontes, see Stewart (1998). For a substantive argument for a more generous approach to mistake of law, see Brudner (2009, pp. 184-8).

  38. This is one way of understanding the differences of opinion in R. v. Finta, [1994] 1 S.C.R. 701, where Cory J., for the majority, interpreted the statute to provide a kind of mistake of fact defence with respect to the jurisdictional element of the offences charged, while the minority insisted that such mistakes would be irrelevant to liability.

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Acknowledgments

I am very grateful to Antony Duff for his comments on previous versions of this paper. I am also grateful to Vincent Chiao, Markus Dubber, participants in The Criminalization Conference, University of Stirling, September 2011, participants in the conference on The Presumption of Innocence in Contemporary Criminal Law, Robina Institute of Criminal Law and Criminal Justice, University of Minnesota, May 2012, and my colleagues in the Criminal Law Sciences Club, University of Toronto. I thank the Social Sciences and Humanities Research Council of Canada for financial support.

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  1. Faculty of Law, University of Toronto, 84 Queen’s Park Crescent West, Toronto, ON, M5S 2C5, Canada

    Hamish Stewart

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Stewart, H. The Right to be Presumed Innocent. Criminal Law, Philosophy 8, 407–420 (2014). https://doi.org/10.1007/s11572-013-9233-x

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