# Are there any judicial systems in which "guilty until proven innocent" is codified? **URL:** \ **Category:** Factual Questions\ **Created:** [July 8, 2011, 4:42pm UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326 "2011-07-08T16:42:39Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bisected8](https://avatars.discourse-cdn.com/v4/letter/b/a4c791/32.png) [@Bisected8](https://boards.straightdope.com/u/Bisected8)\ **Post date:** [July 10, 2011, 1:53pm UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/21 "2011-07-10T13:53:46Z")
I’ve heard a “factoid” (in the most accurate sense of the word) that Scotland technically has a guilty until proven innocent clause for some crimes (I’m not sure how they do it specifically in Scotland, but the British system is structure in such a way that laws stay on the books even when they wouldn’t be enforced). ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [July 10, 2011, 2:40pm UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/22 "2011-07-10T14:40:37Z")
Matthew Hopkins’ witch trials, Salem, and the Spanish Inquisition. (Please no Monty Python jokes. Too obvious) ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [July 10, 2011, 8:57pm UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/23 "2011-07-10T20:57:43Z")
> [@Captain\_Amazing](#): > > I think it was a Deep Space 9 episode. I think the logic the Cardassians used is that since it would be a mistake to arrest and try an innocent man, and by definition, the Cardassian government can’t make mistakes, if someone is arrested, he must be guilty, and the purpose of a trial is for the accused to confess his guilt and thereby publicly reaffirm the infallibility and majesty of the state. I remember that. The Cardassian government even assigned one of the most prominant defence attorneys in the Cardassian Union to Miles O’Brien (the sole purpose of a defence attorney being to help the accused come up with the most moving and dramatic confession possible). After the long trial in Cardassian history (2 days) Mile was found not guilty and his lawyer was afraid his career was destroyed (also he might have been in fear for his life). > [@](#): > > There have been worse formal systems in the past - in revolutionary France under the Jacobins, and in Renaissance Venice, the governments were so completely totalitarian that it was not legal or even possible to offer a defense to prove one’s innocence, and there was therefore no need for a trial. Or the [Volksgerichtshof](http://en.wikipedia.org/wiki/People%27s_Court_(Germany)) in Germany. Defence lawyers were present, but not allowed to speak in court or given the chance to communicate with their nominal clients. Even the _prosecutors_ just sat there while the presiding judge layed out charges and pronounced sentence. Judge-President Roland Freisler had a habit of getting so carried away that the technicians recording the trials had to ask him to town it done because they were having problems getting usuable audio. ---
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [July 11, 2011, 12:15am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/24 "2011-07-11T00:15:39Z")
According to the US Consulate in Tijuana, “For an accused person, one of the most critical differences is that under Mexican criminal law, the accused is essentially considered guilty until proven innocent.” They do not elaborate on this, but you can find it on their web site. Start on [http://tijuana.usconsulate.gov/citizen\_services.html](http://tijuana.usconsulate.gov/citizen_services.html). There is a link on the right nav menu labeled “[Mexico Criminal Justice System-PDF](http://tijuana.usconsulate.gov/root/pdfs/telegalcriminalguide.pdf)” that will up a reasonably small PDF file. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [July 11, 2011, 12:24am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/25 "2011-07-11T00:24:54Z")
> [@Captain\_Amazing](#): > > I think it was a Deep Space 9 episode. I think the logic the Cardassians used is that since it would be a mistake to arrest and try an innocent man, and by definition, the Cardassian government can’t make mistakes, if someone is arrested, he must be guilty, and the purpose of a trial is for the accused to confess his guilt and thereby publicly reaffirm the infallibility and majesty of the state. I remember that one of the points of a Cardassian trial was to help the defendant come to a full understanding of his (predetermined) guilt. And, the sentence was also decided before the trial started. Sisko notably was able to convince the Cardassian authorities to give Thomas Riker a life sentence rather than the assumedly default death sentence for his crimes against Cardassia. Remember he was also guilty of crimes against the Federation too. ---
**Author:** ![mac\_bolan00](https://avatars.discourse-cdn.com/v4/letter/m/b3f665/32.png) [@mac\_bolan00](https://boards.straightdope.com/u/mac_bolan00)\ **Post date:** [July 11, 2011, 1:03am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/26 "2011-07-11T01:03:32Z")
would it matter if there was (sufficient) due process in the justice system? ---
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 11, 2011, 9:46am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/27 "2011-07-11T09:46:45Z")
> [@robert\_columbia](#): > > I remember reading somewhere that the Japanese criminal justice system is heavily inclined toward coercing confessions and then using the confession against the defendant. I don’t actually know the answer to the question, sorry. Yes, that’s the accusation: the Japanese police has an incredibly high number of confessions which are apparently obtained by holdings suspects far longer than 48 hours without sleep. (The old KGB method in other words). If these coerced / false confessions are then used in “normal” trials, it doesn’t help the accused much if the trial itself is proper and on presumption of innocence, he will still be damned on his confession. ---
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 11, 2011, 9:53am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/28 "2011-07-11T09:53:36Z")
> [@Peter\_Morris](#): > > Matthew Hopkins’ witch trials, Salem, and the Spanish Inquisition. Not a court in the normal sense, but the [HUAC](http://en.wikipedia.org/wiki/Huac) would also fall under this. ---
**Author:** ![medicated](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@medicated](https://boards.straightdope.com/u/medicated)\ **Post date:** [July 11, 2011, 10:25am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/29 "2011-07-11T10:25:36Z")
In some situations, English defamation law does this. A defamatory statement is presumed to be false unless demonstrated to be true. I know there’s been a strong effort to change this recently, so my information might be out of date. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [July 11, 2011, 11:04am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/30 "2011-07-11T11:04:19Z")
> [@carnivorousplant](#): > > Didn’t they have a week or so to keep you isolated and beat a confession out of you? Remember that the Soviet Union had regular criminals too : thieves, murderers, etc… What happenned to dissidents probably wasn’t representative of your run of the mill trial. ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [July 11, 2011, 11:14am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/31 "2011-07-11T11:14:15Z")
> [@medicated](#): > > In some situations, English defamation law does this. A defamatory statement is presumed to be false unless demonstrated to be true. > > I know there’s been a strong effort to change this recently, so my information might be out of date. It’s still the case in a number of jurisdictions that a defendant/respondent in a defamation case who claims the defence of truth has the burden of proving it. France is one such jurisdiction, which I thought was kind of ironic given all the hooha there about the treatment of DSK in the US system. Defences generally can be kind of weird on the burden of proof issue. Obviously it depends where you are but here in Ireland, for example, if you claim the defence of insanity you have the burden of proving it but if you claim automatism or duress the prosecution has to prove they don’t apply. There’s also a common law thing called the peculiar knowledge principle which may apply in limited cases where the defendant is the only party who could have known something, but that doesn’t arise very often. It’s also possible for statute law to provide particular circumstances where, once a fact is established by the prosecution, it will lead to a particular conclusion unless the defendant can prove that conclusion isn’t warranted. For example, a public official receives gifts from a lobbyist; this may lead to a presumption of corruption unless the defendant can prove the gift was innocently given. These laws are often challenged on the basis of undermining the presumption of innocence, but they may be upheld if the court if satisfied that the statute makes it easy enough for innocence to be shown. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [July 11, 2011, 11:36am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/32 "2011-07-11T11:36:45Z")
> [@md2000](#): > > IIRC the Napoleonic system, common in many European countries, has the presumption of innocence. But, the accused is required to testify and answer questions form the prosecution and the judge. It is more of an inquisition like a congressional hearing, looking for “the truth”, than an impartial judge hearing 2 sides. The only protection is that the accused cannot be charged with perjury based on their testimony. The assumption was that a guilty person would say anytihng to get off. As you said, a french trial looks more like a debate between the parties. Contrarily to the common law system, the presiding judge is the main actor. Basically, questions may be asked to the accused at any time by anyone of the participants. Judge, prosecutor, accused’s lawyer, victim’s lawyer..In fact direct exchanges between the accused and the witnesses aren’t uncommon. The acccused can also speak spontaneously. I don’t believe he’s _required_ to say anything, even though I guess that staying silent might be poorly perceived. In any case, he can’t “testify”, strictly speaking ( take an oath like a witness would). In fact he’s forbiden to do so (there’s a famous criminal case during which, prompted by his lawyer, one of the accused shouted “I SWEAR THAT BLAH BLAH BLAH..HONOR OF A FORMER SOLDIER… BLAH BLAH…” which caused problems, especially because the lawyer was the instigator). This because if he was allowed to take an oath any accused who wouldn’t do so would become suspect. That’s, sort of, a protection against self-incrimination. That’s why he can’t commit a perjury, whether or not he tells the truth. He didn’t state he would tell it to begin with. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [July 11, 2011, 11:41am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/33 "2011-07-11T11:41:54Z")
> [@constanze](#): > > Yes, that’s the accusation: the Japanese police has an incredibly high number of confessions which are apparently obtained by holdings suspects far longer than 48 hours without sleep. (The old KGB method in other words). > > If these coerced / false confessions are then used in “normal” trials, it doesn’t help the accused much if the trial itself is proper and on presumption of innocence, he will still be damned on his confession. I do not know how fair it is, but I’ve heard many Western commentators say that Japan’s criminal justice system is very much about keeping society ordered as opposed to being especially concerned with arriving at the truth or doling out some abstractly defined justice. Obviously **all** criminal justice systems stem from the ancient role of government to attempt to prevent criminals from being handled by unruly lynch mobs and to prevent individuals from settling criminal cases through vigilantism and violence so to a degree all criminal justice has its roots in providing some degree of stability and order. However what I have often heard is that is still the absolute, primary focus in Japan. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [July 11, 2011, 11:48am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/34 "2011-07-11T11:48:45Z")
> [@Capitaine\_Zombie](#): > > (in fact we used to have judges whose job was not to sit in court but to conduct the investigation). We still have them. Sarkozy wanted to change completely the criminal procedure, suppressing the “juge d’instruction”, to turn it into a kind of mix of the Civil Law and Common Law systems (IMO, with the worst of both worlds for the accused). This reform was strongly criticized, and he eventually gave ûp, unwilling to face yet another minefield. I’m very happy he failed, since IMO this reform was a VERY BAD IDEA ™ for a variety of reasons. And the pretense he used to propose it was stuningly stupid, since it would have made worst what it was supposed to improve (Outreau case : the problem was that the inquiry judge had acted as if he were a US style prosecutor, so the obvious solution according to Sarkozy was to replace him by an _actual_ US style prosecutor). Anyway, the system has been left unchanged. ETA : > [@](#): > > I guess you must have meant inquiry rather than inquisition. In fact, “inquisitorial” is the usual name of this system. Nothing to do with the inquisition (except for the shared origin of the words) But yes, the way the inquiry itself is led is a necessary feature of the system, as important as the way the trial is conducted. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [July 11, 2011, 11:56am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/35 "2011-07-11T11:56:55Z")
> [@ElvisL1ves](#): > > There have been worse formal systems in the past - in revolutionary France under the Jacobins, […], the governments were so completely totalitarian that it was not legal or even possible to offer a defense to prove one’s innocence, and there was therefore no need for a trial. In fact, normally, there was a trial (although numerous people were just massacred in a variety of ways). It was a total joke and probably wouldn’t even deserve the name of “kangaroo court”, but it took place. ---
**Author:** ![Diceman](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Diceman](https://boards.straightdope.com/u/Diceman)\ **Post date:** [July 11, 2011, 11:57am UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/36 "2011-07-11T11:57:13Z")
> [@Martin\_Hyde](#): > > I do not know how fair it is, but I’ve heard many Western commentators say that Japan’s criminal justice system is very much about keeping society ordered as opposed to being especially concerned with arriving at the truth or doling out some abstractly defined justice. I suspect that in many Asian countries, preserving social order trumps any concerns about individual justice. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 11, 2011, 1:04pm UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/37 "2011-07-11T13:04:00Z")
IIRC the Scots verdict options include “not proven”. Basically, we don’t think he’s innocent, but the prosecution did not prove its case. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 11, 2011, 1:12pm UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/38 "2011-07-11T13:12:21Z")
sure, but that doesn’t mean that the Crown in Scotland doesn’t have the onus of proof. we had a recent thread on “Not Proven” for anyone who’s interested: [Why does Scotland use the “Not Proven” verdict?](http://boards.straightdope.com/sdmb/showthread.php?t=614616&highlight=proven) ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 11, 2011, 6:45pm UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/39 "2011-07-11T18:45:53Z")
Back to _Star Trek_. The Tanuga IV criminal justice system is also based on the concept of guilty until proven innocent: [A Matter of Perspective (episode) | Memory Alpha | Fandom](http://memory-alpha.org/wiki/A_Matter_of_Perspective_(episode)) ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [July 11, 2011, 8:16pm UTC](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326/40 "2011-07-11T20:16:45Z")
What about the appeals process in UK/ American/ Australian/ Canadian justice system. Mr X gets convicted for a crime on the testimony of a certain cop. A year later, that same cop is discovered planting evidence in another case. Mr X appeals with the claim that the cop did the same to him. Doesn’t the appeals court pretty much assume he was guilty anyway, unless he can provide solid evidence of innocence? [Previous page](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326.md?page=1) [Next page](https://boards.straightdope.com/t/are-there-any-judicial-systems-in-which-guilty-until-proven-innocent-is-codified/588326.md?page=3)