# Bail and the presumption of innocence **URL:** \ **Category:** Great Debates\ **Created:** [July 12, 2014, 8:55pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948 "2014-07-12T20:55:04Z")\ **Posts on this page:** 19\ **Page:** 1
**Author:** ![CoastalMaineiac](https://avatars.discourse-cdn.com/v4/letter/c/e8c25b/32.png) [@CoastalMaineiac](https://boards.straightdope.com/u/CoastalMaineiac)\ **Post date:** [July 12, 2014, 8:55pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/1 "2014-07-12T20:55:04Z")
Inspired by [this article](http://bangordailynews.com/2014/07/11/news/court/judge-rejects-prosecution-request-to-ban-man-from-maine-island/) from a local newspaper. I often see restrictions placed on defendants who have been arrested and released on bail. I was under the impression that, in this country, the defendant is considered innocent, unless it’s proven otherwise. So why would a prosecutor think it appropriate to ban a man from his home town when, for all legal purposes, he is still considered innocent? I thought the primary purpose of bail was to ensure that the accused shows up for court, not to act as punishment for a crime that may or may not have even occurred. But I see this sort of stuff all the time in the paper. So what gives? The GD part: Is it reasonable to place _any_ restrictions on a defendant who has not been found guilty? If it is, where do you think the line should be drawn? I.e. What would be reasonable and what would be unreasonable? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [July 12, 2014, 9:08pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/2 "2014-07-12T21:08:45Z")
In this case, the restriction is because the defendant’s former partner has a protection order against him, and: "Sandelin lives 300 feet from the victim’s residence, and Jones argued police would have no way to enforce the protection order if he is allowed to return and live there. The prosecutor also pointed out Sandelin has convictions for violating conditions of release in 2006 and 2013, as well as an assault conviction in 2006 and disorderly conduct in 2013. " So, in this case, he wanted to ban the man from his house because there was already a protection order against him that the prosecution thought that his returning would violate, given that he has a history of violating them. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [July 12, 2014, 9:11pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/3 "2014-07-12T21:11:36Z")
> [@CoastalMaineiac](#): > > I was under the impression that, in this country, the defendant is considered innocent, unless it’s proven otherwise. I think this is a common misconception. The legal principle is not that a defendant is factually innocent, but rather that he is entitled to a presumption of innocence in all legal proceedings. This has various implications, including: - entire burden of proof falls on the prosecution, so “it looks like he did it, but the proof isn’t strong enough” results in acquittal - defendant cannot be forced to testify, and the failure to testify cannot be taken as evidence of guilt IOW, “Innocent until proven guilty” is a somewhat sloppy way of summarizing a more complicated legal principle. ---
**Author:** ![CoastalMaineiac](https://avatars.discourse-cdn.com/v4/letter/c/e8c25b/32.png) [@CoastalMaineiac](https://boards.straightdope.com/u/CoastalMaineiac)\ **Post date:** [July 12, 2014, 10:39pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/4 "2014-07-12T22:39:45Z")
> [@Xema](#): > > I think this is a common misconception. The legal principle is not that a defendant is factually innocent, but rather that he is entitled to a presumption of innocence in all legal proceedings. This has various implications, including: > > - entire burden of proof falls on the prosecution, so “it looks like he did it, but the proof isn’t strong enough” results in acquittal > - defendant cannot be forced to testify, and the failure to testify cannot be taken as evidence of guilt > IOW, “Innocent until proven guilty” is a somewhat sloppy way of summarizing a more complicated legal principle. However, shouldn’t a legal presumption of innocence include treating the defendant as if he is factually innocent, until it is proven otherwise? If the defendant is treated by the courts as though he is guilty in the pre-trial procedings, it’s not much of a presumption, is it? ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [July 12, 2014, 11:16pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/5 "2014-07-12T23:16:28Z")
> [@CoastalMaineiac](#): > > shouldn’t a legal presumption of innocence include treating the defendant as if he is factually innocent, until it is proven otherwise? No - it would make it impossible to hold anyone accountable for a crime. If I’m to be considered factually innocent, you can’t arrest me, detain me, make me post bail, prevent me from leaving the country, etc. > [@](#): > > … it’s not much of a presumption, is it? It’s enough to produce (generally) fair trials and (mostly) avoid convicting the innocent. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [July 12, 2014, 11:20pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/6 "2014-07-12T23:20:35Z")
Bail with conditions is not a punishment, it’s a privilege. If Defendant doesn’t like the conditions offered, he can sit in jail until his trial. If he is convicted, he’s generally given credit for time served against the sentence imposed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 13, 2014, 12:49am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/7 "2014-07-13T00:49:08Z")
> [@Oakminster](#): > > Bail with conditions is not a punishment, it’s a privilege. If Defendant doesn’t like the conditions offered, he can sit in jail until his trial. If he is convicted, he’s generally given credit for time served against the sentence imposed. Bingo. The purpose of bail is to ensure the accused appears for trial. ---
**Author:** ![Corry\_El](https://avatars.discourse-cdn.com/v4/letter/c/ecae2f/32.png) [@Corry\_El](https://boards.straightdope.com/u/Corry_El)\ **Post date:** [July 13, 2014, 1:10am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/8 "2014-07-13T01:10:31Z")
> [@CoastalMaineiac](#): > > However, shouldn’t a legal presumption of innocence include treating the defendant as if he is factually innocent, until it is proven otherwise? If the defendant is treated by the courts as though he is guilty in the pre-trial procedings, it’s not much of a presumption, is it? He explained to you pretty succinctly what the presumption of innocence means, and you ask ‘why can’t it mean something different?’. I don’t know, why don’t we change all kinds of legal concept to something different? In this case it’s obvious why not: there’d be no way for police and prosecutors to operate if ‘presumption of innocence’ actually meant ‘treat as factually innocent for all purposes’ until proven otherwise at trial, which could seldom happen because you couldn’t do anything but nicely ask a person to appear for a trial, not to mention getting court order to search, give DNA samples etc. Why should a judge grant such orders if the person if assumed to be innocent for such purposes? It would be nonsensical. Presumption of innocence really just means burden of proof is on the prosecution in a criminal trial, and it would probably be better if it were just taught that way in civics class, the term presumption of innocence is now obviously widely misunderstood. Other protections for defendants were mentioned (5th amendment, etc) but arguably those could be considered to be separate from the presumption of innocence, and that presumption could be clarified as just stating who has the burden of proof, before any admissible evidence has been presented in a trial (the burden can shift to the defendant based on the defense’s acceptance of such evidence, eg. in an affirmative defense which doesn’t dispute the basic facts of the case). ---
**Author:** ![CoastalMaineiac](https://avatars.discourse-cdn.com/v4/letter/c/e8c25b/32.png) [@CoastalMaineiac](https://boards.straightdope.com/u/CoastalMaineiac)\ **Post date:** [July 13, 2014, 2:51am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/9 "2014-07-13T02:51:24Z")
> [@Corry\_El](#): > > He explained to you pretty succinctly what the presumption of innocence means, and you ask ‘why can’t it mean something different?’. I posted this in Great Debates for a reason. Xema’s explanation was short, sweet, and to the point, and I find no fault in it. But what’s the harm in questioning even basic assumptions and premises? Isn’t that the whole point of a debate? To clarify, when I said “treat them as though they are factually innocent,” I was thinking more along the lines of “set a reasonable bail amount, the person pays, and is at liberty until trial.” I’m not saying I agree with doing that, just putting it out there for the sake of discussion. After all, the person on trial very well _could_ be factually innocent. One of my biggest gripes with the situation is the length of time a defendant actually has to wait for trial. A “stay out of your home town” restriction might not be all that unreasonable if he could be seen in a few weeks, but it can often be closer to a year or more! That’s a significant chunk of a person’s life, and if the person is actually innocent, it can be tragic, depending on what the bail restrictions deprived him of during that time. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 13, 2014, 3:48am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/10 "2014-07-13T03:48:16Z")
> [@CoastalMaineiac](#): > > To clarify, when I said “treat them as though they are factually innocent,” I was thinking more along the lines of “set a reasonable bail amount, the person pays, and is at liberty until trial.” Sound contradictory to me. If someone was going to be actually treated as _factually_ innocent, the charges should be dropped immediately. Rather, treating them as _presumed_ innocent pending trial and conviction allows reasonable conditions imposed, including posting bail, surrendering passports, keeping away from alleged victims if there are restraining orders in effect, etc. I don’t see a problem with this, myself. Rather, it’s a necessary trade-off between protecting individuals and protecting society. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [July 13, 2014, 3:56am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/11 "2014-07-13T03:56:37Z")
> [@CoastalMaineiac](#): > > One of my biggest gripes with the situation is the length of time a defendant actually has to wait for trial. A “stay out of your home town” restriction might not be all that unreasonable if he could be seen in a few weeks, but it can often be closer to a year or more! That’s a significant chunk of a person’s life, and if the person is actually innocent, it can be tragic, depending on what the bail restrictions deprived him of during that time. Delay usually benefits the defendant. Every day the case doesn’t get tried is more time for evidence to get lost/damaged/stolen, witnesses to move away/die, memories to fade, etc. In my state Defendant has a right to file a motion requesting a speedy trial, and if he does, he’ll get one. Very few such motions are filed. ---
**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 13, 2014, 7:50am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/12 "2014-07-13T07:50:26Z")
> [@CoastalMaineiac](#): > > To clarify, when I said “treat them as though they are factually innocent,” I was thinking more along the lines of “set a reasonable bail amount, the person pays, and is at liberty until trial.” But if the courts are required to treat them as factually innocent, how can they be required to pay bail? Innocent people don’t have to pay the state for their freedom. ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [July 13, 2014, 9:02am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/13 "2014-07-13T09:02:37Z")
There was a constitutional amendment over this in Ireland in the mid-1990s. The Supreme Court had ruled that because of the presumption of innocence, bail could be refused only to ensure the proper administration of justice (which could include both ensuring the accused turned up for trial, and preventing interference with witnesses or evidence). Under the constitutional amendment they can now also be refused bail where the judge considers it necessary to prevent further serious offences. But because the presumption of innocence still applies there are heightened safeguards where this provision is invoked, including that they can reapply for bail after a few months if trial proceedings have been delayed. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [July 13, 2014, 9:58am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/14 "2014-07-13T09:58:11Z")
> [@ruadh](#): > > There was a constitutional amendment over this in Ireland in the mid-1990s. The Supreme Court had ruled that because of the presumption of innocence, bail could be refused only to ensure the proper administration of justice (which could include both ensuring the accused turned up for trial, and preventing interference with witnesses or evidence). Under the constitutional amendment they can now also be refused bail where the judge considers it necessary to prevent further serious offences. But because the presumption of innocence still applies there are heightened safeguards where this provision is invoked, including that they can reapply for bail after a few months if trial proceedings have been delayed. Cite. For both the amendment and reasons. Because this goes against everything that I have learnt about the common law of bail. ---
**Author:** ![Ken001](https://avatars.discourse-cdn.com/v4/letter/k/43a26b/32.png) [@Ken001](https://boards.straightdope.com/u/Ken001)\ **Post date:** [July 13, 2014, 10:10am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/15 "2014-07-13T10:10:04Z")
Does any English legal system nation still allow common law bail? I’d expect bail to be codified along with the criminal law in virtually every country. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [July 13, 2014, 4:29pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/16 "2014-07-13T16:29:49Z")
Yes, and usually they have codified the common law principles, or expressly revoked or rewritten them. That is why I asked for cites, such a radical departure from general principals. ---
**Author:** ![Asympotically\_fat](https://avatars.discourse-cdn.com/v4/letter/a/e47c2d/32.png) [@Asympotically\_fat](https://boards.straightdope.com/u/Asympotically_fat)\ **Post date:** [July 13, 2014, 5:23pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/17 "2014-07-13T17:23:11Z")
Bail in England and Wales can be refused on the grounds to prevent further offences from being committed (for bail for imprisonable offences and under more stringent conditions for non-imprisonable offences) ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [July 14, 2014, 6:53am UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/18 "2014-07-14T06:53:20Z")
> [@AK84](#): > > Cite. For both the amendment and reasons. > > Because this goes against everything that I have learnt about the common law of bail. [_People (Attorney General) v O’ Callaghan_ [1966] IR 501](http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/1CC8C49846F8FF308025765E003785DC/$FILE/People%20(AG)%20v%20O%20Callaghan_1966.rtf) - original decision _Ryan v Director of Public Prosecutions_ [1989] IR 399 - confirming original decision. Can’t find full text online, but relevant extract quoted [here](http://humanrights.ie/criminal-justice/bail-reform-mooted/) [Sixteenth Amendment of the Constitution Act 1996](http://www.irishstatutebook.ie/1996/en/act/cam/0016/sched.html) [Bail Act 1997](http://www.irishstatutebook.ie/1997/en/act/pub/0016/) ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [July 14, 2014, 2:59pm UTC](https://boards.straightdope.com/t/bail-and-the-presumption-of-innocence/692948/19 "2014-07-14T14:59:33Z")
> [@Oakminster](#): > > Delay usually benefits the defendant. Every day the case doesn’t get tried is more time for evidence to get lost/damaged/stolen, witnesses to move away/die, memories to fade, etc. Those are mostly advantageous to the defendent if he’s actually guilty. If he’s innocent, then he wants as much of the evidence as possible. > [@](#): > > In my state Defendant has a right to file a motion requesting a speedy trial, and if he does, he’ll get one. Very few such motions are filed. It takes time to go through all the state’s evidence and to gather your own, especially if - as is often the case - the state has had a headstart, with the police gathering evidence and the DA assessing it for some time before the arrest. It’s also possible that the defense attorneys have a conflict of interest in some cases, in maximizing their billing.