Although we accept that legally everyone is 'innocent until proven guilty', is it right for people to keep open in their minds the plausibility/possibility that the accused is guilty?

Or is this ethically wrong and the correct stance is that not only are they 'legally' innocent, but in all aspects should be treated/understood as innocent until proven guilty. Hence, leaving no avenue for speculation of guilt (e.g. thoughts of 'if he/she's guilty...') until proven of it.

  • 2
    This doesn't really have an answer out of a specific context. The possibility of guilt is legally permissible to consider in some circumstances, but not others. Also ethical and correct stances aren't legal matters at all.
    – ohwilleke
    Jul 15, 2022 at 0:13
  • would love to learn some examples where the possibilty of guilt might or might not apply. Jul 15, 2022 at 0:17
  • re ethical vs legal matter: that's why I qualified this as a legal philosophy query as all aspects of law has a philosophical underpinning, eg what is viewed as 'legal matter' Jul 15, 2022 at 0:18
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    "some examples where the possibilty of guilt might or might not apply": criminal investigation and trial are the prime examples.
    – phoog
    Jul 15, 2022 at 5:09
  • 4
    Additionally, in Scottish criminal trials there are three verdicts available: guilty, not guilty and not proven (which is under review). Jul 15, 2022 at 7:43

7 Answers 7


First we should be more specific about a person being "accused" – we should disregard lunatic rantings, and limit our attention to a person who has been officially, legally accused of a crime (which is the class of acts to which the concept "guilt" applies). In all jurisdictions, a formal accusation must be supported with some evidence. In light of that, by definition it is possible that the accused is guilty. The fact-finders will then weigh that evidence and conclude that the evidence meets the standard of proof for guilt, or does not.

It is then logically incoherent to deny that guilt is a possibility, unless the intent is that all accused persons should be found innocent irrespective of the evidence. The finder of fact must allow both possible outcomes. The reason for the "innocent until proven guilty" viewpoint is that it puts a specific burden of proof on the government: the government has to not just knock down all of the accused's defenses, it has to conjure up a certain level of sufficiently-convincing evidence proving guilt. This is to avoid the situation that characterizes totalitarian regimes where the tyrant can accuse a person of a random crime, offer no evidence, then insist that the accused somehow prove their innocence.


The presumption of innocence is simply that - a presumption

Presumption: the act of believing that something is true without having any proof.

The truth value of the presumption is undefined and not relevant.

It is therefore the starting point of the legal process: the Crown will attempt to provide proof through evidence that the presumption is not true.

This is no different from the null hypothesis in social science, the assumption in a mathematical proof by contradiction, or the starting point of a deductive argument in philosophy.

In any specific instance, a person is either objectively guilty of the alleged crime or they are not guilty. At the end of the legal process, they will be found guilty or not guilty (or, more rarely, neither). In an ideal world, the finding will match the objective reality but, we live in this world.

As a society, we have decided that it is better for the guilty to go free than the innocent get punished. Therefore, in general, we adopt the presumption of innocence and require the state to prove guilt. There are societies where the opposite presumption is made - the accused is presumed guilty and they must prove their innocence. They function as societies perfectly well.

  • What states lack the presumption of innocence and function perfectly well?
    – phoog
    Jul 15, 2022 at 5:18
  • @phoog Australia alrc.gov.au/publication/…
    – Dale M
    Jul 15, 2022 at 8:42
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    the act of believing that something is true without having any proof. This is an assumption. A presumption is to behave as though something is true without having any proof basically. Often these go hand-in-hand, but not always (especially with regard to this legal principle).
    – user8913
    Jul 15, 2022 at 18:57
  • @DaleM is this because Australia started as a penal colony? Jul 16, 2022 at 5:38
  • @DaleM - you linked to a page about the reversal of the burden of proof normally laid on the prosecution for certain offences. Jul 17, 2022 at 19:45

Yes, it is possible for active but as-of-yet unproven charges to have legal effect.

One example I'm aware of is when attempting to buy a firearm in Illinois. If you have pending criminal charges, they will show up in the background check required to get your Firearm Owner ID card, and depending on the seriousness of the charges they may result in your application being denied.

Another is bail conditions; they're legally binding and often restrict people from certain activities, despite no guilt being proven. One common restriction for example is they're banned from drinking alcohol while on bail.

  • Or trying to enter Canada with an arrest record, but no convictions.
    – mckenzm
    Jul 15, 2022 at 22:40
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    Or simply being remanded to jail while awaiting trial.
    – Barmar
    Jul 16, 2022 at 0:57

First of all, the phrase is "presumed innocent until proven guilty". Second, this applies only to the government. A private person is free to have any opinion they wish regarding someone's guilt. A trial is a mechanism for the government to come to a conclusion about someone's guilt. For the government to hold a position that was not arrived at through due process is a violation of rights.

  • 3
    I think the "presumed" is key here. It doesn't make sense to say someone is innocent until they've been proven guilty. Either they are innocent or guilty, and they don't switch from one to other in the process of a trial. But before the truth is "known" (and yes for this purpose I'm assuming a trial exposes the truth) the person is presumed to be innocent.
    – nasch
    Jul 15, 2022 at 19:35
  • @nasch Schrodinger's defendant?
    – Barmar
    Jul 16, 2022 at 0:55

This is a great question because the matter is frequently misunderstood.

As Accumulation notes, it's not correct to say "legally everyone is 'innocent until proven guilty'"; rather, people are presumed to be innocent. Furthermore, as Dale M notes, a presumption may be overcome. The accused is only presumed to be innocent until proven otherwise beyond a reasonable doubt.

The main consequence of the presumption of innocence is that it places the burden of proof on the state. You cannot convict someone of a crime without evidence. An accused party is not required to prove innocence, nor even to conclusively invalidate the prosecution's evidence. It is sufficient to introduce "reasonable doubt."

Of course, it would not be possible to have a criminal law system in which it was impossible to contemplate the possibility of guilt; nobody could be investigated or tried under suspicion of having committed a crime.

This is the difference between "assuming" that someone is innocent and "presuming": a logical assumption is "something that you accept as true without question or proof"; a legal presumption may be questioned, rebutted, or disputed by considering evidence that it is incorrect.


One way in which the defendant is treated as if he were not completely innocent is that the authorities can detain him to ensure his presence at trial, or require him to pay a substantial bond in order to be at liberty until the time of the trial. This is done because the defendant's guilt is still considered to be a possibility worthy of these measures.

  • Indeed -- this point is treated in more detail in this Q&A.
    – feetwet
    Jul 20, 2022 at 19:16

There is no legal term for "possibly guilty". You can obviously use it in layman's language, but it is not meaningful in law.

A judge may see that the prosecution doesn't even claim to have evidence that might show the defendant to be guilty, and stop the trial because of that. Or in a civil case, the judge may note that even if everything the plaintiff says is true, the defendant has no case to answer, and stop the case.

In layman's terms, the defendant is still "possibly guilty". Just because the police has not a shred of evidence doesn't mean you didn't do it. Unless you are in a coffin, and we dug out the coffin and checked you are inside, you are "possibly guilty".

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