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A comment on this site says:

Who says "Innocent until proven guilty"? That's a lame cliche for legal dramas.

Is this true? Or is the phrase "Innocent until proven guilty" found in legal texts and judicial reasoning?

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    it's a useful fiction, but "innocent until arrested" would be a better phrase for how justice works in the USA. Knowing they are innocent is scant relief to people who can't afford bail yet sit in jail awaiting the trial that could let them free.
    – Tiger Guy
    Feb 7 at 15:01
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    100% @TigerGuy --- the US is so deeply committed to mass incarceration that we've fully abandoned a full legal process for all but the most wealthy or "famous". The vast majority are forced through the plea bargain system through financial pressures and threats to their mental and physical health and safety.
    – Mike M
    Feb 7 at 15:11
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    Did you also see (their other comment](law.stackexchange.com/questions/99437/…) which reads "Presumed" is the keyword. The OP means "is"? It's rather important to the point they were trying to make.
    – marcelm
    Feb 7 at 21:20
  • For serious crimes, a preliminary assessment of a person's guilt/innocence is made when deciding if a person is granted bail. It could be argued that people who are not granted bail are not presumed completely innocent before final judgement. (Of course, whether bail was granted has no affect on the final judgement).
    – Xavier
    Feb 9 at 1:17
  • @Xavier, that's not true. Bail is set by the history of a person, whether they are a flight risk or if they have a history of being violent, not whether the judge thinks they are guilty. americanbar.org/groups/public_education/resources/… Feb 9 at 21:42

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"Innocent until proven guilty" or "innocent until proved guilty" can be found in English in, among others:

Some countries that don't have English as an official language have constitutions or laws that have been translated to English as "... presumed innocent until proved guilty ...".

For more see the Presumption of Innocence article on Wikipedia.

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Innocent until proven Guilty is more than a stock phrase

Trials happen all the time. In most Western societies and legal systems, trials start by setting out the rules. By restating the rules, again and again, society reinforces its rules. One of those foundational rules that is reiterated again and again is, that someone accused is presumed innocent until proven guilty. That is more than a mere stock phrase, it is a foundational principle of law and one of the pillars that what we consider justice rests on.

Actual guilt or innocence is a fact.

Before anything, whether someone is guilty or innocent of a crime is an objective fact. During a trial, what is known is presented to the court, thought about, and turned into a legal fact, which is incorporated in the legal fiction of the happenings1. Once the court has the legal fiction of the transpiring, they craft a verdict that you are innocent or guilty. The verdict becomes a fact of law.

Legally speaking, the person accused of a crime always has been innocent or guilty since the moment the crime happened. If a higher court overrules a lower one, then that decision is just as retroactive - and you had been whatever the highest ruling court decreed you to be from the start.

Now, since a verdict of guilt and innocence are the possible outcomes of the trial, there must be a way for the court to find out what the fact is. That is what happens in the trial itself. In this context, the sentence "innocent until proven guilty" comes in, or rather "presumed innocent until proven guilty" does. The stress on presumption here is not just semantics: it is critical because it is how to deal with someone before and during the trial, which is where someone is proven guilty.

1 - Legal Fact is any single thing that is proven in the court. Together the legal facts make up the description of what the court thinks has transpired. That can be different from what actually happened. This can happen if things are not proven or mentioned they might be missing in the court's situational image. The totality of legal facts can be called Legal Fiction too.

Proof of Guilt is on the accuser since Roman Times

While innocence and guilt are the facts that stand at the end of the trial, the actual trial is the assessment of it. But to some degree, a trial is a black box: On the one side, an accused and evidence go in, on the other side, a verdict comes out, declaring what was true all along. For the question of the presumption of innocence, the inner workings of the trial are not required.

Opening the black box and looking at a trial in the most abstract manner, one will realize that the court is operated by humans following rules. Humans made rules, and who is deemed to have broken them needs to be handled by the rules of the system in a trial, following the process. Most societies prefer rules that strive to make that process fair and reproducible. They strive for a just system with fair trials, with blind Justitia following the rules.

Looking into the history of law, a few very old rules still influencing us today stem from Roman Law. One version can be found in the Iustinian law Digestorum seu Pandectarum 22.3.2: Ei incumbit probatio qui dicit, non qui negat - [The burden of] Proof lies upon him who asserts [something], not who denies [something]. Or in more modern parlance: It is up to the prosecutor or claimant to prove their case, not the defense to destroy it.

A very similar principle is the clause of in dubio pro reo - in case of doubt, [decide] for the defense. That principle was in action from republican roman times, and became incorporated in most modern legal system. We found a reason for why we have until proven guilty: someone has to prove the guilt.

So we have a standard for when someone is guilty and when not. This is the aim for most orderly court trials. What is beyond a doubt and how much proof was required shifted between times and systems, and in some cases, a claim alone was seen as part of the proof.

Today we speak of proving guilt beyond a reasonable doubt in the common law system, and that is commonly the best translation from other legal systems too.

Presumed Innocense demands how to treat the accused

By looking into the standard for when to deem someone guilty, we solved half the problem. The prosecutor needs to prove beyond a [reasonable] doubt, that someone is guilty. However, the crucial part that is expressed by "[presumed] innocent until proven guilty" is not the outcome and verdict of the trial. The statement is the ultimate rule on how to handle the accused before and during the trial, so they get their fair chance. The question that the presumption of innocence answers for a legal system is: Should the accused be treated as guilty or innocent at the onset of trial?

Here the point of presumed innocence comes in: only when presuming the accused to be innocent and putting all the burden to prove the guilt on the accusing party, the trial can be held in an impartial manner that appeals to the demand of a fair, impartial and reproducible trial. If the prosecution can't prove their point, then the presumption becomes the legal fact. If the prosecution can prove their point, guilt is established and proven.

But in either case: the accused was guilty or innocent all along, they were just found to be either of the two possibilitis during the trial.

Presumption of guilt is the absence of justice

For one moment, let's look at a society that presumes guilt instead of innocence. The accuser wouldn't need to prove anything anymore, the accused already is assumed guilty. The prosecution can't lose anymore. By putting all the burden on the accused, a verdict of innocence becomes unachievable or a gamble. Only by presuming innocence, the demand of a fair and impartial trial is possible. If you presume guilt, you don't strive for anything close to a society that values justice and the rule of law but you want to live in tyranny, where the word of the prosecutor becomes law.

Examples of a Presumption of Guilt can be seen where either the rule of law is ignored, or suspended or where the system failed.

In Europe, many witch hunters didn't even have the right to adjudicate anything, and their "investigations" were conducted at times backed up with the power of the mob. The Salem Witch Craze is better described as a mockery of trials than a court of law and was fueled by the ambitions of a group. The system was in many cases ignored, set aside, and in some cases where someone with the power to judge was involved, the system failed.

During the late 1930s and early 1940s, some (nazi) German courts took a simple claim by some people for all the 'evidence' they required to condemn someone, especially if the claim was treason. The system had failed.

Use in court

Jury instructions generally contain the clause. For example the 2023 Jury Instructions in California for criminal cases start with the general guidelines. It's a very strict bar, demanding and reiterating the presumption of innocence in every single case, starting when the court reads the general rundown what is going to happen in the trial:

Next, the People will offer their evidence. Evidence usually includes witness testimony and exhibits. After the People present their evidence, the defense may also present evidence but is not required to do so. Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/ do) not have to prove that (he/she/they) (is/are) not guilty.

The presumption of Innocense also is called back into the minds of the jury when Reasonable Doubt is explained:

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].

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  • Let us continue this discussion in chat.
    – Trish
    Feb 7 at 18:48
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    To clarify, do I understand correctly that when you say "whether someone is guilty or innocent of a crime is a legal and objective fact", you are distinguishing whether the person in question is objectively guilty from whether they are guilty under the law as two separate facts? Feb 7 at 21:13
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    @JohnBollinger, yes, they would be separate facts. I either did what I was accused of or I didn’t. (And if I did it there might be a valid excuse). So I am in layman’s terms guilty or innocent. And when the trial is over, it is declared that I am guilty beyond reasonable doubt, or not. That makes me legally guilty or not. We hope that people who are factually guilty will end up legally guilty, and those factually not guilty end up legally not guilty, but unfortunately that cannot be guaranteed.
    – gnasher729
    Feb 7 at 22:33
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    Yes, @gnasher729, that is entirely my understanding. I just found this answer's wording a little confusing, and I wanted to make sure it was saying the same thing. Feb 7 at 22:38
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    @JohnBollinger the wording legal fact was deliberately, because you might have killed John Doe in cold planned murder, but the jury found you innocent, then the legal fact is that you are innocent. And you are found guilty of having killed Jane Doe you never met, then it is a legal fact that you are guilty of her murder.
    – Trish
    Feb 7 at 22:47
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The comment which sparked this question was in relation to how the phrase is used in that question, specifically:

Does that mean “innocent until proven guilty” is to be taken literally? Even though the crime happened from 2012 to 2019, is it true that on March 16th 2023 he was innocent of tax evasion, and on March 17th 2023 he was guilty?

That question assumes that the verb implicitly prepended to the phase is "is" (as opposed to "presumed").

(The distinction is material. An accused is presumed innocent in order to avoid them being prematurely shamed/mortified in public before their guilt becomes an established fact. An accused is innocent when this is an already established fact — in which case a trial would not make sense).

So, the phrase "is innocent until proven guilty", is indeed the wrong/inaccurate phrase to use in relation to a person accused of a crime. It is, however, widely used in popular culture — hence the label "lame cliche for legal dramas".

Where some court decisions literally say "is innocent until proven guilty", it should be read/interpreted "is presumed innocent until proven guilty". Otherwise, strict literal interpretation becomes nonsense which leads to the original question.

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  • A great example of why miscommunication easily happens over the internet ...
    – Allure
    Feb 8 at 21:36
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The phrase "Innocent until proven guilty" is not relegated to "cliche for legal dramas." It and related phrases are used ubiquitously, sometimes in conjunction with a notion of a presumption; sometimes stated more directly. Here are examples from Canada and the United States.

In the Canadian Charter of Rights and Freedoms: "Any person charged with an offence has the right ... to be presumed innocent until proven guilty ... ."

Shaw v. State, 846 S.W.2d 482 (Tex. App. 1993)

implicit in the conduct of a fair trial is the idea that one is innocent until proven guilty

Manning v. State, 304 So. 3d 981 (La. Ct. App. 2020)

Ms. Manning is innocent until proven guilty.

(Those are just two examples from the first page of an internet search.)

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I was in the jury pool a couple years back for a murder trial. Houston, Texas.

The presiding judge opened with the question, "Is {defendant's name} guilty or innocent?" He paused to let us think about it, and then stated, "As of right now, he is innocent, because the prosecution has not proven him to be guilty." He went on to explain that whoever is chosen for the jury must keep this principle in mind.

In a court that obeys the laws of the United States, "innocent until proven guilty" are not empty words.

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  • That instruction is very much in line to presume that the accused should be thought to be innocent, but might also be a quirk of that specific court or area - the phrase if quoted properly is presumed innocent until proven guilty.
    – Trish
    Feb 10 at 9:21

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