Cornerstone of Justice

Sometimes referred to as a “fundamental right,” the presumption of innocence can be traced back through centuries of legal precedent. The presumption was a foundational precept in Anglo-Saxon law: “Throughout the web of the English criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt.”[1] Likewise, the Universal Declaration of Human Rights states, “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defense.”[2]

Although the U.S. Constitution does not explicitly refer to the presumption of innocence, the presumption is implicit in the Fifth, Sixth, and Fourteenth amendments.

In the adjudication context, this means: [4]

  1. The prosecution in a criminal trial must prove all elements of the crime beyond a reasonable doubt.
  2. The defendant is not required to testify, call witnesses, or present evidence in his defense. The defendant’s decision not to testify or present evidence, cannot be used as an indication of his guilt.
  3. The trier of fact is forbidden from drawing any inference of guilt from the fact the defendant has been charged with a crime. The jury and judge must decide the case solely on the evidence presented during the trial.

Supreme Court Decisions

The presumption of innocence has been recognized in several U.S. Supreme Court decisions. In Coffin v. United States, the High Court wrote, “the presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”[5]

Other Supreme Court cases have addressed the presumption of innocence:

  1. In re Winship, 397 U.S. 358 (1970). “The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” 363-364
  2. Estelle v. Williams, 425 U.S. 501 (1976). “The presumption of innocence, though not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” 503
  3. Bell v. Wolfish, 441 U.S. 520 (1979). “The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials… [I]t has no application to the determination of the rights of a pretrial detainee during confinement before his trial has even begun.” 533

Loss of the Presumption 

Over the last several decades, a series of changes in American law have served to weaken the presumption of innocence. Nowadays the great majority of criminal cases are resolved on a pretrial basis, i.e., are handled by means of a plea-bargaining procedure.[6] During the various pretrial stages — arrest [7], bail-setting [8], grand jury hearing [9], preliminary hearing [10], and plea negotiations[11] — analysts have concluded that the presumption of innocence plays little substantive role. One legal scholar noted, “However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial.”[12] Another scholar stated, “The presumption of innocence has lost much of its vigor lately, becoming something akin to a ‘legal wallflower without much practical relevance.’”[13]

There are other reasons to conclude that the presumption of innocence is more honored in the breach than in the observance:

  • Complainants and plaintiffs are often referred to as “victims” in courts of law, even when no objective evidence of victimization exists and no judicial determination has been rendered.
  • In domestic violence law, one constitutional expert opined, “evidentiary standards for proving abuse have been so relaxed that any man who stands accused is considered guilty.”[14]
  • In many areas of regulatory and environmental law, persons accused of wrong-doing are adjudicated under civil law procedures that lack constitutionally mandated due process protections, even though the consequences of the adjudication process can include incarceration or burdensome fines.[15]
  • In some areas, legal definitions have been expanded, rules of evidence reworked, and legal procedures changed to afford a clear advantage to the plaintiff.[16]
  • Since 1989 there have been over 2,000 exonerations of persons convicted of a broad range of crimes, and new exonerations continue to be reported on a regular basis.[17]

The presumption of innocence is an essential component of a fair and just legal system.


[1] Lord Sankey. Woolmington v DPP [1935] AC 462. Link

[2] Universal Declaration of Human Rights, Article 11. Link

[3] Post, David, Guilty Until Proven Innocent, in Colorado, Washington Post, November 21, 2016. Link

[4] Mueller, Christopher B.; Laird C. Kirkpatrick. Evidence; 4th ed. Aspen (Wolters Kluwer) pp. 133-34, 2009.

[5] Coffin v. United States, 156 U.S. 432 (1895).

[6] Dressler J, Thomas GC. Criminal Procedure 4th ed., at 1016, 2010.

[7] Gerstein v. Pugh, 420 U.S. 103, 123–25 (1975).

[8] Una Ni Raifeartaigh, Reconciling Bail Law with the Presumption of Innocence, 17 Oxford J. Legal Studies 1, 19, 1997.

[9] Edwards, Jr. George J. The Grand Jury, at 37 (1906). “Primarily the object of the grand jury is not to protect the innocent . . . but is to accuse those persons, who, upon the evidence submitted by the prosecutor, if uncontradicted, would cause the grand jurors to believe the defendant guilty of the offence charged.”

[10] Ferdico, JN et al. Criminal Procedure for the Criminal Justice Professional, 10th ed., at 805 (2009).  Noting that the purpose of a preliminary hearing is to determine “whether a crime was committed; whether the crime occurred within the territorial jurisdiction of the court; and whether there is probable cause to believe that the defendant committed the crime.”

[11] F. Andrew Hessick III & Reshma M. Saujani. Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. Pub. L. 189, 232, 2002.

[12] Baughman, Shima Baradaran, Restoring the Presumption of Innocence. Ohio State Law Journal, Vol. 72, No. 4, 2011.

[13] Shrestha, Prajesh. Two Steps Back: The Presumption of Innocence and Changes to the Bail Act of 2013 (NSW), 37 Sydney L. Rev. 147, 2015.

[14] Hanna C. The paradox of hope: The crime and punishment of domestic violence. William and Mary Law Review Vol. 39, 1998.

[15] Rosenzweig P, Walsh BW (eds.): One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. Washington DC: Heritage Foundation, 2010.

[16] Richard Klein: An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fairness. 41 Akron Law Review 981, 2008.

[17] National Registry of Exonerations, Interactive Data Display. Link