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Feb 6, 2011

Some legal systems have employed de jure presumptions of guilt, such as at an order to show cause criminal proceeding. Otherwise, accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce some failures to ensure that suspects are treated well and are offered good defence conditions. Typical infringements include:

In some systems, suspects may be detained for long periods while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even though they have not been sentenced. (See speedy trial)
Courts may prefer the testimonies of persons of certain class, status, ethnicity, sex, or economic or political standing over those of others, regardless of actual circumstances.
In Europe and the New World, until the early 18th century, it was common for the justice system to have suspects tortured to extract confessions from them, since circumstantial evidence was rarely analyzed or admitted in those times. Although this practice became no longer allowed, except during 20th-century fascist and Soviet governments, there have been attempts to introduce evidence obtained from suspects tortured elsewhere (so-called extraordinary rendition).
Some public universities punish members of athletic teams accused of felonies after they are indicted, even if they have not been convicted. In some cases this may entail expulsion from the team and/or loss of the athletic scholarship.
In the United Kingdom under the previous Government important recent inroads have been made against the principle. Defendants' previous convictions may in certain circumstances be revealed to juries. Although the suspect is not yet compelled to answer questions after formal arrest, failure to give information may now be prejudicial. Statute law was introduced which provides for criminal penalties for failing to decrypt data on request from the Police. If the suspect is unwilling (or even unable) to do so, it is an offence.[20] Citizens can therefore be convicted and imprisoned without any evidence that the encrypted material was unlawful. Further, the onus is on the defendant to decrypt the data, and having lost the key or the password is not considered reasonable excuse.
Scottish law provides for a third finding: "not proven".
In practice, a ruling of innocence will only be returned if the defense is able to provide proof of innocence that is superior to the prosecution's proof of guilt. The prosecution's proof of guilt, however flimsy, is expected to be rebutted with proof of innocence by a legal defense, before a ruling on guilt or innocence is given. The rebuttals of an innocent defense are likely to be produced from a position of poor knowledge about the alleged crime, which can allow the prosecution to easily discredit the defense's rebuttals. In essence, the defense is expected to concoct a story of events that explains the facts of the case without implicating the defendant. The defense rebuttal may solve the crime by identifying the true perpetrator, it may implicate another innocent defendant, or it may be discredited as an implausible fabrication.
State funded defenses rarely match the quality of State funded prosecutions, so innocent defendants usually must fund a private defense to be able to match the power of the prosecution. The burden of funding a prosecution is collectively borne by the State. The burden of funding a private defense is individually borne by the accused. Individual defense resources in finances, information, equipment, expertise, research, and personnel, can never match the resources of a government, especially if the defendant is imprisoned. The accused is expected to pay the costs of a private defense, and also taxes that fund the prosecution.
Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalistic codes of ethics state that journalists should refrain from referring to suspects as though their guilt is certain. For example, they use "suspect" or "defendant" when referring to the suspect, and use "alleged" when referring to the criminal activity that the suspect is accused of.

More subtly, publishing of the prosecution's case without proper defence argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects. Private groups fighting certain abuses may also apply similar tactics, such as publishing the real name, address, and phone number of suspects, or even contacting the suspects' employer, friends and neighbors.

Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights activists feel that pre-employment drug testing, while legal, violates this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent through the test. Similarly, critics argue that some dispositions of laws against sexual harassment or racial discrimination show a presumption of guilt. These dispositions were meant to ease the burden of proof on the victim, since in practice harassment or discrimination practices are hard to prove.

Civil rights activists note that the well-meaning practices so adopted may have a deleterious effect on justice being served. An example is the use in some sexual assault cases of a screen, which is set up to prevent the complainant from being distressed at the sight of the accused. Where a victim was in fact victimized by the accused, this may be argued to serve the principles of therapeutic justice.[21] However, where an accused is innocent, this may inadvertently tell the jury that the court accepts that a crime was committed. This shifts the burden of proof traditionally on the prosecution to the defense, and risks putting the court in the role of judging guilt rather than the jury. Not only this but also even more importantly, such a shield may also send a message that the complainant is upset by the sight of the accused, once again because guilt is seen to have been assumed by the court in so shielding the complainant. The psychological effects of such a screen have not yet been well researched, but the tension between the two views is a problem for therapeutic justice, which must weigh protection of genuine victims from genuine offenders against the potential for an unjust conviction that such protection may create
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Posted: Sunday February 6, 2011, 3:02 am
Tags: criminal lawinnocencejustice [add/edit tags]

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