The law is filled with what we call presumptions. They are a short hand way of defining the burden of proof. When we say that a criminal defendant is presumed innocent we are really saying that before any sanction can be imposed the defendant’s guilt must be established by evidence presented in a recognized forum under accepted rules of procedure and proof. By the same token all children are presumed to be legitimate and all persons are presumed to be sane. The presumptions have little to do with reality and every thing to do with the methods we have chosen to use to resolve these issues and questions.
For instance, it is clear to me (and therefore clear to all reasonable minds) that O.J. Simpson butchered his former wife and the Goldman kid. Before the state could impose a sanction, however, it was incumbent on the state to satisfactorily demonstrate his guilt. The state failed in that effort. Thus, O.J. is forever innocent although we know as surely as we know that the sun rises in the East that he did it. The point is not that Mr. Simpson is factually innocent, but rather that the state failed in its obligation to persuade a jury.
**Netscape, I think it is, sort of, right. Civil penalties, such as those imposed by the IRS and the EPA, don’t require a trial, although the accused can usually (always?) request a court hearing to appeal.
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5th amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Fining people without due process is unconstitutional.
Most European countries (including France) have accepted the Rome Treaty/ European Convention on Human Rights (=ECHR). Article 6(2) states:
AFAIK this principle was already accepted by most legal systems, too. Furthermore I believe it’s a quite general principle in any system which can be called law, even though (as was remarked by other posters), in practice it doesn’t mean much when there is a clear and strong indication of guilt.
I don’t easily see how you could work with a system with a basic presumption of guilt, and still call it law. It would mean that anyone could be prosecuted even where there was no single shred of evidence pointing in his direction. At the very least you would want the prosecution to have the beginning of a case, which gets close to a presumption of innocence.
Yes, by definition. But is the scenario you described “without due process”? If a regulatory agency levies a fine, AND you have the opportunity to appeal their ruling, is this a fine without due process? I’m not so sure. How is that different than a traffic cop giving you a ticket–i.e., a sort of summary judgment on the surface, but not really, not if you can appeal.
The question in any sort of taking is “how much process is due”? The Supreme Court has decided, rightly IMO, that, say, a prosecution involving the death penalty requires more procedural safeguards than a $50 traffic ticket.
That doesn’t mean that the $50 ticket requires no safeguards: the due process clause is, at base, a guarantee of the right to be heard. And AFAIK every state has such safeguards – you can challenge the ticket if you wish. The streamlined procedures employed in traffic court are deemed adequate to satisfy the requirements of due process because the interest in question is relatively small.
I like Spavined Gelding’s clarification of presumptions.
Nobody is saying that the guy with five prior convictions for burglarizing liquor stores by climbing through skylights who was arrested walking away from a closed liquor store with a recently-broken skylight at 4:00 AM carrying $4,000 in cash and three quart bottles of Jack Daniels is “really” innocent of any crime – he’s been arrested and his innocence is in serious doubt.
What the legal maxim (which is “presumed innocent until proven guilty,” not “innocent…” as in the OP) says is, the initial burden of proof is on the prosecution to prove him guilty of the crime. If they are able to adduce proof that he almost certainly committed the crime (“beyond a reasonable doubt”), the burden of proof shifts to the defence to refute the supposed proof offered by the prosecution.
This process has been proven over centuries to produce the desired result of conviction of the overwhelming majority of guilty persons while protecting the rights of innocent persons circumstantially implicated.
**Yes, by definition. But is the scenario you described “without due process”? If a regulatory agency levies a fine, AND you have the opportunity to appeal their ruling, is this a fine without due process? I’m not so sure. How is that different than a traffic cop giving you a ticket–i.e., a sort of summary judgment on the surface, but not really, not if you can appeal.
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Sure, if you define due process as not necessarily meaning “innocent until proven guilty”. But once you open that can of worms you are left with assuming guilt in criminal cases being constitutional. You could be jailed summarily for whatever charge and you would have to successfully prove your innocence to get out.
If all due process means is any process, then that kind of cheapens constitutional protections.
**The question in any sort of taking is “how much process is due”? The Supreme Court has decided, rightly IMO, that, say, a prosecution involving the death penalty requires more procedural safeguards than a $50 traffic ticket.
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Obviously, but property can be taken in huge chunks with very little in the way of legal protection. You can be fined more than you make in ten years and have to prove your innocence. That’s a very big deal and due process in the case of large fines should be similar to criminal cases. Obviously, we can get away with summary judgements on parking tickets. On say, an EEOC complaint, or EPA penalty, or an IRS audit, there should be a presumption of innocence since the stakes are so high for the accused.
I would agree with you if the appeal/arbitration process consisted completely of you trying to prove your innocence and the accuser sitting mute. I don’t think that’s typically the case. I strongly suspect that the standard at such hearings is that it opens with the accuser laying out his case, the “Here’s what this guy did, and here’s how we know it” facts.
To the extent that the accuser’s case is weak and/or the accused can successfully dispute the facts, then a different outcome occurs. I still think there’s an enormous difference between a fine one can contest (especially when there is an established process for appeals that demands that the accuser make his case) and a fine where it is a given that the accused is guilty. I believe the former is the standard in this contry, but perhaps I’m naive.
No, you’re not naive. Perhaps I was being to hyperbolic in saying you had to prove your innocence, but even if you are fined to the point where you could lose your livelihood, it really only takes a preponderance of evidence to uphold the fine. You also don’t get a jury of your peers.
That may be true, but I don’t think the standard of evidence you describe (e.g., a conclusion without a jury of peers) is necessarily indicative of the absence of a presumption of innocence. It’s debatable how much of a burden the accuser has for a given circumstance. But unless the accuser has no obligation to make his case, and the burden is completely upon the accused to prove his innocence (or he has no opportunity to do so), then there is some presumption of innocence, at least so far as I have understood the notion.