civil dispute is usually solved on a balance of probabilities: the judge adjudicates
the case in favor of the party whose proposition appears more probable, even if it is
only slightly more probable. The rule in criminal trials is instead that the thesis of
the public prosecutor must be highly probable if a verdict of guilt is to be passed.
The trial judge must be convinced that there is no likely alternative to the way in
which the prosecutor portrayed the alleged facts.
Pretrial Detention as an Exception The second corollary of the presumption of
innocence is that the personal liberty of a suspect cannot be unduly restricted before
a verdict of guilt is passed. This does not mean that the personal liberty of the
suspect can never be limited before the trial decision. Pretrial detention is possible
in some circumstances. The suspect can be arrested during the investigations. For
instance, if the police catches someone red-handed, they arrest him. The police may
also decide that they want to apprehend the suspect in order to interview him out of
fear that he might flee or commit dangerous acts. What the presumption of inno-
cence commands is that a person should not be kept in detention simply because he
is suspected of a crime. The restriction of the suspect’s liberty should be limited to a
minimum, confined to those situations where it is essential for ensuring a proper
course of the proceedings or avoiding a danger to society and assisted by strong
safeguards.
7.13 Fair Trial and Proportionality
Fair Trial Closely tied to the presumption of innocence is the principle of fair
trial. Convicting the guilty cannot come at any price. The function of the criminal
process is not just to reach a correct verdict but also to do so in a manner that
generates public confidence in the court’s work. Every accused in criminal trial
shall have his case adjudicated in a just manner. Under the label of “fair trial”
(or “due process”) fall a number of safeguards whose array varies from country to
country. The common core of the principle includes the right of the accused to a
public trial in front of an independent and impartial judge and the right to defense.
The accused must be given the opportunity to properly oppose the allegations
against him.
Lawyer’s Assistance This entails the right to receive legal assistance from a
counsel. The criminal trial is a very technical matter: there are fine-grained legal
distinctions that are not easy to grasp and can be crucial to the outcome of the case.
Building an effective defensive strategy compatible with the procedural rules
requires adequate knowledge and skills; finding evidence, questioning witnesses,
addressing and persuading the courts are all activities that require experience and
preparation. Hence, all defendants can elicit a counsel to assist them in the prepa-
ration and conduction of the defense.
7 Criminal Law 153