A puzzling presumption: determining the presumption of innocence's place in the law

Most, if not all, criminal law systems and international and regional human rights agreements explicitly provide for the presumption of innocence. There is however, little direction on how the presumption is to be regarded or used inpractice. Theorists,on the other hand, are sharply divided on where the presumption of innocence fits within criminal law. Theorists have not been able to agree on whether the presumption of innocence is a wide conceptual idea that covers almost all interactions with government, or whether the presumption is narrower, only providing specific protections to individuals in limited situations. This paper argues that when the presumption of innocence is examined in light of case law and practice it has three different aspects. The presumption of innocence is, first and foremost, a fundamental human right. However, this right is made of two distinct, but interrelated, facets: a general principle of law, and a rule of evidence. The general principle of law describes the limiting relationship that the presumption of innocence has on government through the process of rule of law. As a rule of evidence, the presumption of innocence instructs the fact-finder on the starting point for evaluating the available evidence and directs the onus of proof away from the accused. The presumption works with the standard of proof to determine how someone suspected of a crime should be treated throughout the criminal process. When evaluated through both practice and theory the presumption of innocence becomes less puzzling. The three aspects of the presumption of innocence are revealed through the presumption's use in practice. When the theories are examined in light of practice, it becomes evident that the theories are not in competition but rather, are describing different parts of the same right