For instance, the husband of a woman is usually presumed to be the biological father of the
baby born during the marriage, unless the opposite is proved.
The presumption of innocence is a different kind of presumption. It is not true
that usually an accused is later found innocent. In other words, the presumption of
innocence is not created upon an inference of what statistically happens in criminal
proceedings. If one were to craft a presumption based on the most frequent course
of events in a criminal process, it would more probably be a presumption of guilt.
When a person is accused of a crime and brought to trial, it is more often the case
that the person is found guilty. As a prediction of outcome, the presumption of guilt
is probably a better presumption than the presumption of innocence.
A Purely Normative Command The presumption of innocence is not a prediction
of outcome. It is instead a purely normative command that is created exactly for the
purpose to counterbalance and neutralize the more natural assumption of guilt
arising out of criminal proceedings. The presumption of innocence demands that
a person is treated and considered as innocent until an accurate finding of guilt has
been made. The mere fact that someone is a suspect or is brought to trial should in
no way authorize to restrict his or her liberty. Likewise, the mere fact that a person
is a suspect does not authorize the authorities to treat that person differently from
any other nonaccused individuals. The presumption of innocence is also intended to
remedy the imbalance between the parties in the early stage of the criminal process.
As seen above, during the investigations, the state authorities are given strong
powers to discover crimes and offenders and may act under a veil of secrecy.
There is no equality of arms between the two conflicting sides during the
investigations. The presumption of innocence tries to cure this imbalance in two
ways:
- by establishing that in principle a person’s liberty is not unduly prejudiced by the
investigative action and findings, and - by imposing that prosecuting authorities reach a higher standard of proof in
order to obtain a conviction.
The presumption of innocence is the quintessence of the criminal process. The
majority of the procedural safeguards can be construed as corollaries of that
presumption. Even the right to a fair criminal process and the right to defend
oneself at all stages of the proceedings (see Article 6 ECHR) can be derived from
the presumption of innocence.
In Dubio Pro Reo There are two direct corollaries of the presumption of inno-
cence. The first consists in a procedural rule applicable at the trial stage in the
judgement against the defendant: the defendant can be considered guilty only if his
guilt has been proved beyond reasonable doubt (in dubio pro reo). As a conse-
quence, the prosecution bears the burden to prove all of the elements of the alleged
offense. This is significantly different from what happens in civil proceedings. A
152 J. Keiler et al.