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Related: What different legal-systems are there?

The idea of "innocent until proven guilty" is sometimes thrown around as an example of American exceptionalism, but it turns out that this is in fact the standard used in most of the world. There seem to be quite a few countries where there are fewer protections for criminal defendants, but I can't find any where "guilty until proven innocent" is literally the case. What I mean by this is that there are non-US jurisdictions that allow defendants to be convicted on evidence that would be thrown out of a US court as unconstitutionally obtained, but the prosecution still has to present this evidence and use it to convince the court of the defendant's guilt. The court does not simply assume, "The prosecutor said it so it must be true, GUILTY!".

I would define a "guilty until proven innocent" legal regime as incorporating most, if not all, of the following criteria:

  • The contents of an indictment or other formal accusation are presumed true unless specifically rebutted in a court of law.
  • Defendants in court who plead Not Guilty are required to prove their innocence in order to obtain an acquittal.
  • Simply disproving the prosecution's evidence is insufficient for an acquittal unless the defendant also affirmatively proves their innocence.

Are there any jurisdictions anywhere in the world where "guilty until proven innocent" is the rule for criminal cases?

Just to be clear, I'm not asking for examples of jurisdictions that are not as friendly to defendants (e.g. hearsay is admissible, no doctor-patient privilege, trial by jury not guaranteed, expanded authority of judges to issue search warrants, no right to a "speedy" trial, etc.), but something more approaching, "Oh no, John accused me of breaking into his garage. If I can't affirmatively prove to a jury that I was in America all of last month and couldn't have broken into his garage here in Ruritania, I'm going to prison!"

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    Civil forfeiture laws work a lot like this.
    – ohwilleke
    Oct 13, 2021 at 22:37
  • aren't military tribunals guilty-until-proven-innocent?
    – grovkin
    Oct 14, 2021 at 20:02
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    @grovkin Not in the U.S.
    – ohwilleke
    Oct 14, 2021 at 21:15
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    Mexico might be or have been what you're looking for, but I'm not sure. Here's a related Stack Exchange thread: skeptics.stackexchange.com/questions/28813/…
    – The Editor
    Nov 3, 2021 at 15:26
  • Even US courts allows evidence that was unconstitutionally obtained to be presented and used. The exclusionary rule is an exception that only applies in limited circumstances. You have no right to have unconstitutionally obtained evidence excluded -- the harm was already done by obtaining it (that's what unconstitutionally obtained means, right?) and excluding the evidence doesn't undo that harm. In fact, it just creates more harm by blinding the jury to true facts that could help them reach a more accurate verdict. Dec 18, 2021 at 16:58

3 Answers 3

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English defamation law is considered to put the burden of proof on the defendant, and until 2010 English law supported a criminal charge of libel- so called "criminal libel" or "defamatory libel." It should be noted that criminal libel was never affirmatively enshrined in English law, but it came about as an outgrowth of English common law. It was never heavily prosecuted, but was a crime and did carry a potential sentence of one to two years in jail.

A comprehensive review of criminal libel in English law was published as "Working Paper No. 84 Criminal Libel". You can read it here.

In England, when actions for libel are brought, the defamatory statements are assumed to be false. This assumes the defendant/publisher to be in the wrong, and they must demonstrate their actions to be reasonable. At the time, the defenses available (see paragraph 3.17 in linked reference) to the defendant/publisher were either:

  • Assert that the statements are not actually defamatory, or do not constitute libel on other technical grounds (e.g. were not actually published in a fixed medium)
  • Make an affirmative defense of "justification"- proving both that the defamatory statements were actually true AND that that there is a public interest in publishing the statements.
  • Make an affirmative defense of "fair comment"- similar to justification but for statements that are a matter of opinion rather than a matter of objective fact.

This satisfies your first condition- the statements named by the plaintiff/prosecutor are assumed to be false and defamatory (note another peculiarity of English common law was that actions of libel could be brought by a prosecutor but could also be brought by private citizens... even if they weren't the ones being libeled). This means the prosecutor was assumed to be in the right, and the defendant was assumed to be in the wrong.

Paragraph 3.19 in the linked document lays it out for us:

The onus of proving the truth of the statement lies on the 
defendant who must also prove the facts by reason of which 
it was for the public benefit for the statement to be 
published. Accordingly, the person defamed need give no 
evidence to rebut the allegations made in the plea of 
justification, leaving the defendant to prove that the 
libel was true and that the publication was for the public 
benefit.

Note that this is a departure from most other western legal systems in two ways. In the US we say that "Truth is an absolute defense against libel claims." If the statement is true, then you can say it under US law, no matter how badly it damages someone's reputation. Note that this is not true for common law criminal libel- merely being true is not sufficient defense, the statements must both be true AND there must be a public interest in publishing the statements. Thus a newspaper or gossip rag that published lovers' intimate details could be prosecuted for criminal libel even if those details are true. Truth is not an absolute defense.

At this point we have also satisfied your second condition. Once an action of libel has successfully been brought, the defendant must assert some defense or else they automatically lose. Either they must contend that the alleged defamatory statements don't technically rise to the level of libel under the law, or they must prove the truth of their statements and provide a compelling public interest in making those statements.

Other legal systems handle libel very differently. In the USA, libel laws vary on a state-by-state basis. In general however, a plaintiff wanting to bring suit for libel must provide evidence that the libelous statements are in fact false. If they cannot provide some evidence to that effect, there is no prima facie case of libel and the defense could move for a summary judgement. As has already been said, truth is an absolute defense in the USA.

While the crime of libel no longer exists in England, all of this carries over into modern-day civil libel actions. The onus is still on the defendant to prove their innocence. Modern observers have coined the terms "libel tourism" and "libel terrorism" to refer to the practice of attacking critics in English courts rather than more appropriate venues specifically because of the fewer protections afforded to defendants there. The US in particular passed the SPEECH Act in 2010, saying that findings of libel from foreign courts are unenforceable in the US, largely due English libel tourism.

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You prove someone guilty by proving the presence of every element of an offense beyond a reasonable doubt. "Innocent until proven guilty" means innocent until every element of an offense is proven beyond a reasonable doubt.

This is, of course, a rebuttable presumption. That is, that while the legal system should presume that someone is innocent of all elements of all offenses, that presumption can be rebutted by demonstrating facts and evidence to suggest that the truth is otherwise. This is a presumption in favor of the defense that the onus is on the prosecution to rebut to obtain a conviction.

Note that just requiring some elements to be established this way does not suffice. For example, if we were to imagine some jurisdiction where rape had elements of both sex and lack of consent but the prosecution only had to prove that intercourse occurred to get a conviction, that would violate the concept of innocent until proven guilty.

People have sex all the time without committing rape. If all the prosecution had to prove was that someone had sex and then the defense had to prove consent, that would be an absence of "innocent until proven guilty". The presumption of the presence of an element of an offense is a form of "guilty until proven innocent".

A person who has sex has not committed the crime of rape. But if we presume they did unless they can prove consent, then they are guilty until proven innocent.

But there are any number of presumptions in favor of the prosecution that exist in various legal systems. In this case, even if the presumption is required for the establishment of guilt, the burden is still on the accused to rebut the presumption.

Some systems even have irrebuttable presumptions. If an irrebuttable presumption is necessary to establish someone's guilt, the person is presumed guilty, period. They cannot even present evidence to rebut the presumption.

For example, in Canada, there is an irrebuttable presumption that one's blood alcohol level drops at more than 5mg/100mL per 30 minutes. If a blood alcohol test done an hour later shows your blood alcohol level to be 8mg/100mL below the legal limit, the presumption suffices to establish your guilt and you cannot even introduce evidence to the contrary such as an earlier test that could prove that your blood alcohol level was below the legal limit when you were actually driving.

That is, you can be innocent of the crime of driving under the influence and even able to prove that your blood alcohol level was below the limit at all the times you were driving, but nevertheless, you can be presumed guilty if the prosecution can show that your blood alcohol level was high, but still below the legal limit soon after you were driving. This is so even if you have conclusive proof your blood alcohol level was never over the legal limit while you were driving. The prosecution is entitled to an irrebuttable presumption of guilt in this case.

UK rape law has some conclusive presumptions as well. For example, if you are accused of raping someone and the prosecution can show that you intentionally impersonated someone known to the complainant, there is an irrebuttable presumption in favor of the prosecution that there was no consent.

In other words, in the UK, if you have sex with someone after impersonating someone they know, you are presumed guilty of rape because there is a conclusive presumption that they did not consent. You cannot even present evidence that they consented -- the law requires the jury to presume that they did not consent even though the absence of consent is a required element of the crime of rape.

This is "guilty even if proven innocent". No matter how much evidence of actual consent you present -- say even a video recording of the "victim" consenting -- you are still guilty of rape and the jury must, by law, conclude that the victim did not consent.

Rebuttable presumptions are more like "guilty until proven innocent" though. Here, the Prosecution does not have to provide evidence to establish some fact necessary for guilt, instead the defense has to provide evidence to show the presumed fact is not so.

For example, if you have sex with someone who you are unlawfully detaining, UK law entitles the prosecution to a presumption that the sex was non-consensual. Non-consent is an element of rape, but the prosecution need not prove it in this case. It is on the defense to prove the absence of consent.

Australia has a "reverse onus" jury instruction for cases involving rebuttable presumptions. It is something like, "In this case, there is an exception to the general rule that the prosecution must prove their case beyond a reasonable doubt. The law says that for an offence of [whatever], the accused must prove [whatever] rather than the prosecution."

When the thing the defendant must rebut is an element of the offense, then there is no innocence until proven guilty. Even though the prosecution has not proven an element of the offense, the defendant may be presumed guilty until and unless they can prove the absence of that element.

For example, say you are an Australian charged with unlawfully entering an area that the government of Australia has declared may not be entered. That you did not enter solely to provide humanitarian aid is an element of the offense. However, you have the burden of demonstrating that you only entered to provide humanitarian aid. It is not even enough to show that you did in fact provide humanitarian aid while there, you must somehow establish that this was your sole purpose. The jury will get a "reverse onus" instruction that you must somehow prove that your sole purpose was to provide humanitarian aid.

In other words, here is a crime that has as an element that you intended to do something other than render humanitarian aid. But the prosecution does not have to prove this -- you do. This is a case where the defense must prove the absence of something (best of luck doing that) or they are presumed guilty of this element of the offense. If this is the only absent element, then they are presumed guilty of the crime.

UPDATE:

What I mean by this is that there are non-US jurisdictions that allow defendants to be convicted on evidence that would be thrown out of a US court as unconstitutionally obtained, but the prosecution still has to present this evidence and use it to convince the court of the defendant's guilt. The court does not simply assume, "The prosecutor said it so it must be true, GUILTY!".

I think this part of the question is based on a misunderstanding. If evidence is unconstitutionally obtained, the harm is completed when the evidence is obtained. The introduction of reliable evidence in a criminal trial, even if wrongfully obtained, does not violate any right recognized by US law.

The right not to have the evidence wrongfully obtained has already been violated, but no US court has ever held that you are entitled to have the evidence suppressed as a remedy for that violation if there is no reason to think the evidence is unreliable. United States law does not recognize any right to have wrongfully-obtained evidence excluded except where the way the evidence was wrongfully-obtained would tend to make that evidence inaccurate. For example, a confession obtained through torture.

Otherwise, wrongfully obtained evidence can be excluded where a court feels the benefit of excluding the evidence exceeds the harm from excluding it. But this is not done because you have any right to have the evidence excluded, it's done because it makes sense to do things whose benefits outweigh their harms. The harm would be that a jury in a criminal case can't access some relevant facts. The benefit is that wrongdoing may be discouraged in subsequent cases.

More often than not, courts find that the benefit does not outweigh the harm and they admit wrongfully-obtained evidence. For example, if the police violated someone's rights in obtaining the evidence but had a good faith belief that what they were doing was lawful, what's the benefit of excluding the evidence? You can't really discourage accidental wrongdoing that way, or at least that's what the Supreme Court held in United States v. Leon.

Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” United States v. Leon, 468 U. S. 897, 907 (1984) , which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it, Colorado v. Connelly, 479 U. S. 157, 166 (1986) , and “have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application,” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 364–365 (1998) (citation omitted). We have rejected “[i]ndiscriminate application” of the rule, Leon, supra, at 908, and have held it to be applicable only “where its remedial objectives are thought most efficaciously served,” United States v. Calandra, 414 U. S. 338, 348 (1974) —that is, “where its deterrence benefits outweigh its ‘substantial social costs,’ ” Scott, supra, at 363 (quoting Leon, supra, at 907). -- Hudson v. Michigan

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    The question the OP posed is what systems don’t have that presumption not how it can be overcome in ones that do
    – Dale M
    Oct 14, 2021 at 7:29
  • @DaleM As I explained, the Australian system doesn't have that presumption when it comes to a person whose defense against a claim of entering a declared prohibited area is that they entered it only to provide humanitarian aid. The Canadian system doesn't have that presumption when it comes to a person whose defense against a claim of driving under the influence is that their blood alcohol level was within the legal limit when they drove and dropped rapidly prior to being tested. These are specific examples where the system has no presumption of innocence. Oct 14, 2021 at 14:50
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    @DavidSchwartz In a jurisdiction with presumption of innocence, defense is not automatically required. The prosecution has to prove their case, the defense doesn't have to say anything if they don't want to. Like for the Australia example, the prosecution must prove the accused was in the restricted area while it was restricted. The accused is presumed innocent about this. In all of your examples, the prosecution still must prove basic facts.
    – Ryan_L
    Oct 14, 2021 at 16:01
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    Proving that someone was indicted isn't analogous to proving an element of an offense. @Ryan_L's point, it seems to me, is that crimes involving rebuttable presumptions against the defendant still require the prosecution to prove one or more elements before the rebuttable presumption comes into play. Only then is the defendant obligated to prove anything affirmatively to avoid conviction.
    – phoog
    Nov 4, 2021 at 11:09
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    @Ryan_L The question was about systems that don't presume someone innocent until proven guilty, not about systems that don't presume someone innocent until "basic facts" are proven. You prove someone guilty by establishing every element of an offense beyond a reasonable doubt. If someone can be presumed guilty before the prosecution has proven every element of an offense beyond a reasonable doubt, then they are not presumed innocent until proven guilty. They are presumed innocent until some point short of the prosecution proving their guilt. Dec 18, 2021 at 23:27
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Herbert Rosendorfer in “1850 Jahre Deutsche Geschichte” (1850 years of German history) described the situation in the Middle Ages if you were accused of witchcraft. You were not “guilty until proven innocent”, you were “guilty”. Any attempt to defend yourself was taken as further evidence of your guilt. Any attempt of others to defend you was clear proof that they were working for the devil as well.

The only successful defense that he described was a case where some nobleman was accused of witchcraft, and the next night masked men grabbed the prosecutor, a fanatical priest responsible for the killing of some tens of people, and clubbed him to death. There was no second prosecutor.

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    Rosendorfer's work on that part is wholly inaccurate. Especially since witch hunts are a phenomenon that is actually not a thing in the medieval period: The Mallus Maleficarum was only published in 1486 and the height of the witch craze was in the 1560s - which are both in the early modern era. Only those early modern witch trials have the "guilty until proven innocent" characteristic. Even Joan of Arc, who was burned for witchcraft and heresy(1431), had a two-month-long trial in which the prosecution had to prove their case. Not denial, non-response was seen as an admission of guilt.
    – Trish
    Dec 20, 2021 at 17:23
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    Recension of the work in the FAZ was pointing out a lot of inaccuracies. The Author himself is clearly biased against the catholic church - but the main number of witch burnings actually happened in protestant lands - and in total, the works are not accepted by any german historian. Your source thus is more than unreliable.
    – Trish
    Dec 20, 2021 at 19:31

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