2. The Presumption of Innocence

In this first session on the fundamental rights of the accused we will focus on the presumption of innocence. The presumption of innocence can be said to have a structuring role on the entire criminal justice system, whether procedure, evidence or even the definition of offences. In order to understand how the criminal justice system purports to work, it is therefore important to understand the historical centrality of the presumption of innocence to the system's liberal credentials. The presumption of innocence is also a protection for the most vulnerable.

At the same time, the presumption of innocence regularly comes under attack, and not just from authoritarian governments or conservative groups. Critiques may include groups who see it as a sort of automatic protection granted to certain criminals. In this session we will review some of these developments and assess them normatively. Does any criticism of the presumption of innocence amount to advocacy for a presumption of guilt? Is a middle-ground possible and even desirable? How might the presumption of  innocence be reformed, for example in sexual assault cases?

Many practices interfere potentially with the presumption of innocence: these include interrogation, the right to counsel, burden, admissibility and threshold of evidence, cross examination, bail, and even the courtroom's architecture... 

Warning: some of the readings include strongly worded views both ways. They are included because they shine light on a complex debate from very different angles. Their inclusion does not amount to endorsement.

Class preparation: