By: Jaidyn Rumpca

Most people are familiar with the phrase “innocent until proven guilty.” But fewer may have considered how this protection actually applies in the United States criminal legal system. For instance, a criminal defendant is presumed innocent at trial, and the government must prove their guilt beyond a reasonable doubt; otherwise, the accused will be found not guilty. However, what about the procedures leading up to trial? Does an accused individual enjoy the same “innocent until proven guilty” safeguard as they would during trial? 

To answer this question, it is first necessary to understand where the presumption of innocence stems from. The United States Constitution guarantees certain rights to criminal defendants. The Fifth and Fourteenth Amendments provide that no individual can “be deprived of life, liberty, or property without due process of law.” This constitutional provision means that every individual accused of a crime must be afforded due process of law before their liberty can be taken away, such as in the case of incarceration and/or other forms of government supervision. More specifically, procedural due process requires that accused individuals be provided fair processes when subject to the criminal legal system. To ensure fair processes, the accused must be presumed innocent unless they plead guilty or are found guilty in a formal trial. Hence, the presumption of innocence is inherent in true due process of law.

While the presumption of innocence is inherent in the United States Constitution but not expressly spelled out, it is an express provision in the Universal Declaration of Human Rights (UDHR). Article 11 of the UDHR states that any individual “charged with a penal offence has the right to be presumed innocent until proved guilty according to the law in a public trial. . . .”

When an individual is arrested and placed in pre-trial detention, all that is required is probable cause that they committed a crime. Probable cause cannot be exactly quantified, but it is possibly less than fifty percent certainty. In other words, an innocent individual, or one who may not be held culpable due to incompetence, insanity, or illegal government action, may be incarcerated or placed under another form of government supervision.

It is fair to say that pre-trial detention and supervision create tension between individual liberty and public safety. However, individual liberty is a matter of public safety. Like any constitutional right, a lack of safeguards jeopardizes that right for everyone.

An individual may be offered bail when incarcerated pending trial. Despite a constitutional protection against excessive bail, many individuals cannot afford to pay to be released. This creates an even greater disparity between wealthy and low-income individuals in the criminal legal system. Further, even if an individual can post bail, they are frequently met with restrictive conditions on their freedom. These conditions may range from drug and alcohol testing to restriction of movement. In summary, accused individuals awaiting trial or other pre-trial proceedings are not treated as innocent individuals.

In practice, therefore, the presumption of innocence is not enjoyed until trial. Accused individuals are treated as if they are guilty through the use of bail, release conditions and supervision, and other practices common to the criminal legal system. While public safety is a crucial consideration, one must consider what safety truly means and who it applies to. Because of this, there should be, at minimum, an end to cash bail. Moreover, individuals should not be subject to unrealistic and easily violable pre-trial release conditions. If the accused is genuinely presumed innocent until proven guilty, they should not be subject to such great restrictions of liberty.

Jaidyn is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. After law school she hopes to pursue public defense and post conviction work. Her areas of legal interest include criminal justice system reform and immigration law. Her personal interests include traveling abroad, hiking, and spending time with friends and family.