Persons accused of a crime in the United States are presumed to be innocent.
Presumption of innocence
The presumption of innocence is the principle that one is
considered innocent unless proven guilty. It was traditionally
expressed by the Latin maxim ei incumbit probatio qui dicit, non qui
negat (“the burden of proof is on the one who declares, not on one who
Although the Constitution of the United States does not cite it
explicitly, presumption of innocence is widely held to follow from the
5th, 6th, and 14th amendments. The case of Coffin v. United States
(1895) established the presumption of innocence of persons accused of
crimes. See also In re Winship.
Coffin, et al. v. United States, 156 U.S. 432 (15 S.Ct. 394, 39 L.Ed. 481)
The principle that there is a 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
It is stated as unquestioned in the textbooks, and has been referred
to as a matter of course in the decisions of this court and in the
courts of the several states. See 1 Tayl. Ev. c. 5, §§ 126, 127;
Wills, Circ. Ev. c. 5, § 91; Best. Pres. pt. 2, c. 1, §§ 63, 64; Id.
c. 3, §§ 31-58; Greenl. Ev. pt. 5, § 29, etc.; 11 Cr. Law Mag. 3;
Whart. Ev. § 1244; 2 Phil. Ev. (Cowen & Hill's Notes) p. 289;
Lilienthal's Tobacco v. U. S., 97 U. S. 237; Hopt v. Utah, 120 U. S.
430, 7 Sup. Ct. 614; Com. v. Webster, 5 Cush. 320; State v. Bartlett,
43 N. H. 224; Alexander v. People, 96 Ill. 96; People v. Fairchild, 48
Mich. 31, 11 N. W. 773; People v. Millard, 53 Mich. 63, 18 N. W. 562;
Com. v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581;
Wharton v. State, 73 Ala. 366; State v. Tibbetts, 35 Me. 81; Moorer v.
State, 44 Ala. 15.
Greenleaf traces this presumption to Deuteronomy, and quotes
Mascardius Do Probationibus to show that it was substantially embodied
in the laws of Sparta and Athens. On Evidence, pt. 5, § 29, note.
Whether Greenleaf is correct or not in this view, there can be no
question that the Roman law was pervaded with the results of this
maxim of criminal administration, as the following extracts show:
'Let all accusers understand that they are not to prefer charges
unless they can be proven by proper witnesses or by conclusive
documents, or by circumstantial evidence which amounts to indubitable
proof and is clearer than day.' Code, L. 4, tit. 20, 1, l. 25.
'The noble (divus) Trajan wrote to Julius Frontonus that no man should
be condemned on a criminal charge in his absence, because it was
better to let the crime of a guilty person go unpunished than to
condemn the innocent.' Dig. L. 48, tit. 19, l. 5.
'In all case of doubt the most merciful construction of facts should
be preferred.' Dig. L. 50, tit. 17, l. 56.
'In criminal cases the milder construction shall always be preserved.'
Dig. L. 50, tit. 17, 1, 155, § 2.
'In cases of doubt it is no less just than it is safe to adopt the
milder construction.' Dig. L. 50, tit. 17, l. 192, § 1.
Ammianus Marcellinus relates an anecdote of the Emperor Julian which
illustrates the enforcement of this principle in the Roman law.
Numerius, the governor of Narbonensis, was on trial before the
emperor, and, contrary to the usage in criminal cases, the trial was
public. Numerius contented himself with denying his guilt, and there
was not sufficient proof against him. His adversary, Delphidius, 'a
passionate man,' seeing that the failure of the accusation was
inevitable, could not restrain himself, and exclaimed, 'Oh,
illustrious Caesar! if it is sufficient to deny, what hereafter will
become of the guilty?' to which Julian replied, 'If it suffices to
accuse, what will become of the innocent?' Rerum Gestarum, lib. 18, c.
1. The rule thus found in the Roman law was, along with many other fundamental and human maxims of that system, preserved for mankind by
the canon law. Decretum Gratiani de Presumptionibus, L. 2, T. 23, c.
14, A. D. 1198; Corpus Juris Canonici Hispani et Indici, R. P. Murillo
Velarde, Tom. 1, L. 2, n. 140. Exactly when this presumption was, in
precise words, stated to be a part of the common law, is involved in
doubt. The writer of an able article in the North American Review
(January, 1851), tracing the genesis of the principle, says that no
express mention of the presumption of innocence can be found in the
books of the common law earlier than the date of McNally's Evidence
(1802). Whether this statement is correct is a matter of no moment,
for there can be no doubt that, if the principle had not found formal
expression in the common-law writers at an earlier date, yet the
practice which flowed from it has existed in the common law from the
Fortescue says: 'Who, then, in England, can be put to death unjustly
for any crime? since he is allowed so many pleas and privileges in
favor of life. None but his neighbors, men of honest and good repute,
against whom he can have no probable cause of exception, can find the
person accused guilty. Indeed, one would much rather that twenty
guilty persons should escape punishment of death than that one
innocent person should be condemned and suffer capitally.' De Laudibus
Legum Angliae (Amos' translation, Cambridge, 1825).
Lord Hale (1678) says: 'In some cases presumptive evidence goes far to
prove a person guilty, though there be no express proof of the fact to
be committed by him; but then it must be very warily pressed, for it
is better five guilty persons should escape unpunished than one
innocent person should die.' 2 Hale, P. C. 290. He further observes:
'And thus the reasons stand on both sides; and, though these seem to
be stronger than the former, yet in a case of this moment it is safest
to hold that in practice, which hath least doubt and danger,—'Quod
dubitas, ne feceris." 1 Hale, P. C. 24.
Blackstone (1753-1765) maintains that 'the law holds that it is better
that ten guilty persons escape than that one innocent suffer.' 2 Bl.
Comm. c. 27, marg. p. 358, ad finem.
How fully the presumption of innocence had been evolved as a principle
and applied at common law is shown in McKinley's Case (1817) 33 State
Tr. 275, 506, where Lord Gillies says: 'It is impossible to look at it
a treasonable oath which it was alleged that McKinley had taken
without suspecting, and thinking it probable, it imports an obligation
to commit a capital crime. That has been and is my impression. But the
presumption in favor of innocence is not to be redargued by mere
suspicion. I am sorry to see, in this information, that the public
prosecutor treats this too lightly. He seems to think that the law
entertains no such presumption of innocence. I cannot listen to this.
I conceive that this presumption is to be found in every code of law
which has reason and religion and humanity for a foundation. It is a
maxim which ought to be inscribed in indelible characters in the heart
of every judge and juryman, and I was happy to hear from Lord Hermand
he is inclined to give full effect to it. To overturn this, there must
be legal evidence of guilt, carrying home a decree of conviction short
only of absolute certainty.'
In re Winship, 397 U.S. 358 (1970)
The requirement that guilt of a criminal charge be established by
proof beyond a reasonable doubt dates at least from our early years as
a Nation. The
demand for a higher degree of persuasion in criminal cases was
recurrently expressed from ancient times, [though] its crystallization
into the formula "beyond a reasonable doubt" seems to have occurred as
late as 1798. It is now accepted in common law jurisdictions as the
measure of persuasion by which the prosecution must convince the trier
of all the essential elements of guilt.
C. McCormick, Evidence § 321, pp. 681-682 (1954); see also J. Wigmore,
Evidence § 2497 (3d ed.1940). Although virtually unanimous adherence
to the reasonable doubt standard in common law jurisdictions may not
conclusively establish it as a requirement of due process, such
adherence does "reflect a profound judgment about the [p362] way in
which law should be enforced and justice administered." Duncan v.
Louisiana, 391 U.S. 145, 155 (1968).
Persons charged with a crime have the right to a speedy and public trial.
Sixth Amendment to the United States Constitution (in pertinent part)
In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme Court ruled
that the right to a public trial is not absolute. In cases where
excess publicity would serve to undermine the defendant's right to due
process, limitations can be put on public access to the proceedings.
According to Press-Enterprise Co. v. Superior Court, 478 U.S. 1
(1986), trials can be closed at the behest of the government if there
is "an overriding interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve that
interest." The accused may also request a closure of the trial;
though, it must be demonstrated that "first, there is a substantial
probability that the defendant's right to a fair trial will be
prejudiced by publicity that closure would prevent, and second,
reasonable alternatives to closure cannot adequately protect the
defendant's right to a fair trial."
The right to a jury has always depended on the nature of the offense
with which the defendant is charged. Petty offenses—those punishable
by imprisonment for no more than six months—are not covered by the
jury requirement, District of Columbia v. Clawans, 300 U.S. 617
(1937); Baldwin v. New York, 399 U.S. 66 (1970).
Notice of accusation
A criminal defendant has the right to be informed of the nature and
cause of the accusation against him. Therefore, an indictment must
allege all the ingredients of the crime to such a degree of precision
that it would allow the accused to assert double jeopardy if the same
charges are brought up in subsequent prosecution, United States v.
Cruikshank, 92 U.S. 542 (1876). The Supreme Court held in United
States v. Carll, 105 U.S. 611 (1881), that "in an indictment... it is
not sufficient to set forth the offense in the words of the statute,
unless those words of themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the elements
necessary to constitute the offense intended to be punished." Vague
wording, even if taken directly from a statute, does not suffice.
However, the government is not required to hand over written copies of
the indictment free of charge, United States v. Van Duzee, 140 U.S.
The Confrontation Clause relates to the common law rule preventing the
admission of hearsay, that is to say, testimony by one witness as to
the statements and observations of another person to prove that the
statement or observation was accurate.
The right to confront and cross-examine witnesses also applies to
physical evidence; the prosecution must present physical evidence to
the jury, providing the defense ample opportunity to cross-examine its
validity and meaning. Prosecution generally may not refer to evidence
without first presenting it.
The Compulsory Process Clause gives any criminal defendant the right
to call witnesses in his favor. If any such witness refuses to
testify, that witness may be compelled to do so by the court at the
request of the defendant.
Fourteenth Amendment to the United States Constitution (in pertinent part)
Due Process Clause
In the 1884 case of Hurtado v. California, 110 U.S. 516 (1884), the
U.S. Supreme Court said:
Due process of law in the [Fourteenth Amendment] refers to that law of
the land in each state which derives its authority from the inherent
and reserved powers of the state, exerted within the limits of those
fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions, and the greatest security
for which resides in the right of the people to make their own laws,
and alter them at their pleasure.
The Due Process Clause of the Fourteenth Amendment applies only
against the states, but it is otherwise textually identical to the Due
Process Clause of the Fifth Amendment, which applies against the
federal government; both clauses have been interpreted to encompass
identical doctrines of procedural due process and substantive
due process (Curry, James A.; Riley, Richard B.; Battiston,
Richard M. (2003). "6". Constitutional Government: The American
In U.S. law, for most criminal cases, trial by jury is usually a
matter of course as it is a constitutional right under the Sixth
Amendment and cannot be waived without certain requirements. Under
section 21 of the rules of Federal Criminal Procedure, if a defendant
is entitled to a jury trial, the trial must be by jury unless (1) the
defendant waives a jury trial in writing, (2) the government consents,
and (3) the court approves.
In the United States, both state and federal appellate courts are
usually restricted to examining whether the lower court made the
correct legal determinations, rather than hearing direct evidence and
determining what the facts of the case were, Court Role and
Structure. Furthermore, U.S. appellate courts are usually
restricted to hearing appeals based on matters that were originally
brought up before the trial court. Hence, such an appellate court will
not consider an appellant's argument if it is based on a theory that
is raised for the first time in the appeal, How Courts Work.
The most important point being the presumption of innocence.
The answer to the question of whether conduct is "illegal" MUST be "No" if there is no case, no controversy exists, or the legal question is not ripe; where no trial and conviction by a jury or bench trial or appellate court has decided whether the conduct is "illegal".
No conduct can be considered "illegal" simply by reading a statute or regulation and casting an opinion on the matter. The setting for such a determination is a court of law.
Thus, whether conduct is "illegal" or not is determined by a
- Jury (impartial)
- Judge (trial and appellate courts)
not by any single lawyer or public opinion.
An individual accused of a public offense is innocent until proven guilty beyond a
shadow of a "reasonable" doubt in a court of competent jurisdiction.