criminal-law legal-concepts comparative-law
Are there any legal systems where &quot;guilty until proven innocent&quot; is actually a thing?
<p>Related: <a href="https://law.stackexchange.com/q/11591/10458">What different legal-systems are there?</a></p>
<p>The idea of &quot;innocent until proven guilty&quot; is sometimes thrown around as an example of American exceptionalism, but it turns out that this is in fact the standard used in most of the world. There seem to be quite a few countries where there are few<em>er</em> protections for criminal defendants, but I can't find any where &quot;guilty until proven innocent&quot; is literally the case. What I mean by this is that there are non-US jurisdictions that allow defendants to be convicted on evidence that would be thrown out of a US court as unconstitutionally obtained, but the prosecution still has to present this evidence and use it to convince the court of the defendant's guilt. The court does not simply assume, &quot;The prosecutor said it so it must be true, GUILTY!&quot;.</p>
<p>I would define a &quot;guilty until proven innocent&quot; legal regime as incorporating most, if not all, of the following criteria:</p>
<ul>
<li>The contents of an indictment or other formal accusation are presumed true unless specifically rebutted in a court of law.</li>
<li>Defendants in court who plead Not Guilty are required to prove their innocence in order to obtain an acquittal.</li>
<li>Simply disproving the prosecution's evidence is insufficient for an acquittal unless the defendant <em>also</em> affirmatively proves their innocence.</li>
</ul>
<p>Are there any jurisdictions anywhere in the world where &quot;guilty until proven innocent&quot; is the rule for criminal cases?</p>
<p>Just to be clear, I'm <em>not</em> asking for examples of jurisdictions that are not as friendly to defendants (e.g. hearsay is admissible, no doctor-patient privilege, trial by jury not guaranteed, expanded authority of judges to issue search warrants, no right to a &quot;speedy&quot; trial, etc.), but something more approaching, &quot;Oh no, John accused me of breaking into his garage. If I can't affirmatively <em>prove</em> to a jury that I was in America all of last month and couldn't have broken into his garage here in Ruritania, I'm going to prison!&quot;</p>

<p>English defamation law is considered to put the burden of proof on the defendant, and until 2010 English law supported a criminal charge of libel- so called &quot;criminal libel&quot; or &quot;defamatory libel.&quot; It should be noted that criminal libel was never affirmatively enshrined in English law, but it came about as an outgrowth of English common law. It was never heavily prosecuted, but was a crime and did carry a potential sentence of one to two years in jail.</p>
<p>A comprehensive review of criminal libel in English law was published as &quot;Working Paper No. 84 Criminal Libel&quot;. <a href="https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/08/No.084-Criminal-Libel.pdf" rel="nofollow noreferrer">You can read it here.</a></p>
<p>In England, when actions for libel are brought, the <em>defamatory statements are assumed to be false.</em> This assumes the defendant/publisher to be in the wrong, and they must demonstrate their actions to be reasonable. At the time, the defenses available (see paragraph 3.17 in linked reference) to the defendant/publisher were either:</p>
<ul>
<li>Assert that the statements are not actually defamatory, or do not constitute libel on other technical grounds (e.g. were not actually published in a fixed medium)</li>
<li>Make an affirmative defense of &quot;justification&quot;- proving both that the defamatory statements were actually true AND that that there is a public interest in publishing the statements.</li>
<li>Make an affirmative defense of &quot;fair comment&quot;- similar to justification but for statements that are a matter of opinion rather than a matter of objective fact.</li>
</ul>
<p>This satisfies your first condition- the statements named by the plaintiff/prosecutor are assumed to be false and defamatory (note another peculiarity of English common law was that actions of libel could be brought by a prosecutor but could also be brought by private citizens... even if they weren't the ones being libeled). This means the prosecutor was assumed to be in the right, and the defendant was assumed to be in the wrong.</p>
<p>Paragraph 3.19 in the linked document lays it out for us:</p>
<pre><code>The onus of proving the truth of the statement lies on the 
defendant who must also prove the facts by reason of which 
it was for the public benefit for the statement to be 
published. Accordingly, the person defamed need give no 
evidence to rebut the allegations made in the plea of 
justification, leaving the defendant to prove that the 
libel was true and that the publication was for the public 
benefit.
</code></pre>
<p>Note that this is a departure from most other western legal systems in two ways. In the US we say that &quot;Truth is an absolute defense against libel claims.&quot; If the statement is true, then you can say it under US law, no matter how badly it damages someone's reputation. Note that this is not true for common law criminal libel- merely being true is not sufficient defense, the statements must both be true AND there must be a public interest in publishing the statements. Thus a newspaper or gossip rag that published lovers' intimate details could be prosecuted for criminal libel even if those details are true. Truth is not an absolute defense.</p>
<p>At this point we have also satisfied your second condition. Once an action of libel has successfully been brought, the defendant must assert some defense or else they automatically lose. Either they must contend that the alleged defamatory statements don't technically rise to the level of libel under the law, or they must prove the truth of their statements and provide a compelling public interest in making those statements.</p>
<p>Other legal systems handle libel very differently. In the USA, libel laws vary on a state-by-state basis. In general however, a plaintiff wanting to bring suit for libel must provide evidence that the libelous statements are in fact false. If they cannot provide some evidence to that effect, there is no prima facie case of libel and the defense could move for a summary judgement. As has already been said, truth is an absolute defense in the USA.</p>
<p>While the crime of libel no longer exists in England, all of this carries over into modern-day civil libel actions. The onus is still on the defendant to prove their innocence.  Modern observers have coined the terms &quot;libel tourism&quot; and &quot;libel terrorism&quot; to refer to the practice of attacking critics in English courts rather than more appropriate venues specifically because of the fewer protections afforded to defendants there. The US in particular passed the SPEECH Act in 2010, saying that findings of libel from foreign courts are unenforceable in the US, largely due English libel tourism.</p>
