OPINION: From Athens to America, the presumption of innocence 

“The law presumes the defendant to be innocent unless and until you are satisfied beyond a reasonable doubt of his guilt.” These are the instructions of the judge to the jury deciding the fate of the accused in every criminal jury trial — to assume the innocence of the defendant. It has been described as the “golden thread” running through the web of the criminal law. How did the presumption of innocence become such a bedrock principle of a fair trial ? Why does the law not presume the defendant guilty? The answer can be found in the ancient roots of our system of justice and traced right up to the present day.

The principle that a defendant is as innocent on the day before his trial as he is on the morning after his acquittal emerged from the ancient world of Sparta and Athens, the laws of the Roman Empire, 17th Century England and then made its way to the shores of America. “Oh, illustrious Caesar!,” an exasperated 4th Century Roman prosecutor lamented, “if it is sufficient to deny, what hereafter will become of the guilty?,” to which Emperor Julian replied, “if it suffices to accuse, what will become of the innocent?” The reputed barrister and jurist Sir William Garrow would coin the phrase “presumed innocent until proven guilty” in a 1791 trial in London.

The presumption of innocence requires the jury to put away from their minds the odium of suspicion that arises from the defendant’s arrest, indictment and arraignment — however justified by probable cause — and to reach its conclusion regarding innocence or guilt solely from the information presented during trial. As the foremost scholar of evidence John Wigmore put it, the presumption of innocence conveys to the jury a special caution to consider nothing but the evidence, to consider “no surmises based on the present situation of the accused.” The presumption became a settled fact of American law when it was codified in 1895 in the words of the Supreme Court of the United States: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

The heart of the presumption is based on a principled belief that in a system of ordered liberty, allegations must be proved by those who make them, not disproved by those against whom they are made. It cautions juries against hasty inferences and safeguards against disadvantaging the accused with undue prejudice. “At the end of the day,” Justice Thurgood Marshall put it in a 1987 dissent, “the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves.”

Matthew Chavez is a judge in the 2nd Judicial District Court.