Legal Presumptions in the Context of Contemporary Criminal Justice: Formulation of a Paradigm

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1 / USD Akadéma Kadó, Budapest Hungaran Journal of Legal Studes 57, No 4, pp (2016) DOI: / Legal Presumptons n the Context of Contemporary Crmnal Justce: Formulaton of a Paradgm Tomas Rudzks * Arturas Panomarovas ** Abstract. The concept of presumpton despte beng often present n the legal envronment stll lacks an approach whch s unformly accepted. Worku Y. Wodage argues that the controversy regardng the operaton and effect of presumpton (...) has not yet been conclusvely resolved despte efforts of scholars. 1 One has a stuaton where one noton, used to potentally denote a number of dfferent legal categores, causes varous problems. In ths Artcle the concept of presumpton s examned from the poston of exact scences and laws of cognton, and t s argued that only a part of the varous elements of the legal technque unted under a ttle of presumptons can be recognzed as proper presumptons. Keywords: presumpton; Crmnal Justce; stochastc approach; probablty; logc 1. INTRODUCTION It s mportant to state at the outset that the crmnal process s assocated wth the ssues of evdence and burden of proof. Presumptons are an ntegral part of the process of averment. A presumpton, as a gven legal category, was actvely used n the ancent Roman law. Many presumptons thereafter have been ncorporated nto the natonal legal systems of dfferent countres. For example, nowadays most legal systems recognze as presumptons the knowledge of the law, the fact of death and parenthood. The fact that presumptons have ganed broad nternatonal recognton only proves the extent of pervason of ths legal nstrument. Nevertheless, t gves no explanaton as to why t s so valued and wdely used n dfferent countres rrespectve of the legal tradtons and cultural or poltcal dfferences. In search for the truth, presumptons should be used only n ndvdual, exceptonal cases. If presumpton s what s more lkely than not, then n the process of averment, whch centers on the dea of the search for the truth, presumptons should be used n very rare cases. They should only be used when t s necessary to overcome some of the uncertanty that cannot be overcome by other standard methods and wthout destroyng the equlbrum of data havng evdentary mportance. 2 Alternatvely, legal systems of dfferent countres do not stagnate and, takng nto account the moral, cultural and poltcal atttudes prevalng n the socety at any gven perod of tme, as well as changng prorty values, they constantly assume a dfferent content. But f the content of legal rules, and thus, the law tself change over tme, how can one explan the fact that changes n lfe as such do not affect the content of certan legal rules, ncludng those provsonng presumptons? Laws * Senor Research Fellow at Crmnal Justce Research Department, Lthuanan Law Insttute. E-mal: tomas.rudzks@tese.org ** Assocate Professor at Insttute of Crmnal Law and Procedure, Mykolas Romers Unversty, Lthuana. E-mal: Arturas@mrun.eu 1 Woodage (2010) Yablon (2003) 227.

2 LEGAL PRESUMPTIONS IN THE CONTEXT OF CONTEMPORARY CRIMINAL JUSTICE created by humans lve a lfe smlar to that of a human beng,.e. they are born, lve and de (Latn leges humanae nascuntur, vvunt et moruntur). Presumptons are justfed n cases where there s no frm knowledge. However, n cases where such knowledge exsts or where t can be acheved by usng unprejudced data, the ancent wsdom says that t s not deal to rely on presumptons, or roughly speakng, such relance s at least rresponsble. 3 If the exstng rules are not the best gudes n order to help us to get closer to the truth n the cogntve process or when they are clearly rratonal, estrangng the process of cognton of the truth, makng t complcated and msleadng, such rules, as common sense mples, should be waved. 4 The law should not allow anythng that s contrary to the truth (Latn contra vertatem lex nunquam alqud permttt). Of course, where there s no mperatve to use presumptons, ther use or ntroducton nto the legal system mght be explaned by the robustness of the legal system, a trbute to customs, tradtons etc. One of the key values of the law s the preservaton of stable relatons n socety. Frequent or constant alternaton of rules creates the stuaton of unpredctablty and nstablty. However, the stablty of legal rules cannot become an end n tself. Also t s evdent n a changng envronment that t s dffcult to expect to keep the regulator of the publc relatons the law unchanged. Tmes are changng and laws also change (Latn tempora mutantur et leges mutantur n lls). Ths artcle analyses the role of logcal reasonng technques n formulatng presumptons. It examnes the orgn of presumptons derved by nductve methods and attempts to uncover whether the dentcal term used for constructs of jurdcal technques of deductve orgn can be consdered proper presumptons. The nsghts revealed by the artcle wll be examned n the context of cvl law (usng Lthuana as an exemplar country) and common law (usng USA as an exemplar country) tradtons. It wll be demonstrated that n terms of formal logc there should not be any fundamental dfferences between these legal systems regardng the matter of constructs of jurdcal technques. 2. PRESUMPTION AS A LEGAL CATEGORY Presumpton s one of the methods of the cognton of the objectve realty. It s often used when there s a need to act, draw conclusons about certan facts under scant condtons, or when the level of cognton (knowledge) s lmted,.e. when there s a need to overcome a partcular uncertanty. 5 Over tme manknd has developed certan patterns of behavor, wth certan human behavor condtonng a specfc result. The attanment of the same result whle performng one acton or another has become an unsurprsng common phenomenon known as multfold. Later t became a common occurence,.e. when performng a certan acton, a partcular result was expected. The same that usually resulted from the acton or, n other words, t was alleged or assumed (Latn praesumptones homns seu fact) that a specfc acton wll lead to the desred result. As socety develops, moral values are also formed. New knowledge s acqured and accumulated. Sooner or later ths s used n dfferent felds of everyday lfe, ncludng the law. 3 Petrosk (2008) McBane (1938) Mendonca (1998)

3 464 Tomas Rudzks, Arturas Panomarovas Presumpton s a pecular product of reasonng or thnkng. In other words, t s a result of publc conscousness that has acqured the role of a specal regulator of publc relatons. It s one of the methods of legal technques appled n real lfe. When the word presumpton s used n everyday language, t s consdered that somethng may be (t exsts), but not necessarly s. In other words, somethng mght be or mght happen, but t does not necessarly occur. 6 The long-term processes of naturalstc observaton sooner or later allows us to conceve what s happenng, dstngush domnatng features, and provde us wth an opportunty not only for dfferent nterpretatons, but also for generalzaton that often takes the meanng of a presumpton, such as: f a brd spends most of ts lfe n the water t s presumed that a membrane covers ts toes; f a person wrote a letter, bought an envelope, put the letter nto the envelope, wrote the rght postal address of the person to whom the letter s addressed, stuck a postmark on the envelope and dropped the envelope nto the post-box, t s presumed that the addressee wll get ths letter. In order to form a legal presumpton t s necessary that several factors concde at the same tme: t should be possble to draw the most probable concluson or form an dea from the observed facts, events, phenomena or ther ndvdual propertes, the mportance and sgnfcance of whch, n regulatng publc relatons, s acknowledged by the majorty of socety s members; and t should happen at an advantageous hstorcal moment and n a favorable legal envronment that allows to gve such a concluson or dea a formalzed content and fnd a place n the already exstng system of legal rules. (Otherwse, such an dea entrenched n the publc mnd, n the best case, acqures the meanng of the wdelyknown fact. Often the commonly known facts n the legal lterature are gven the meanng of presumpton. Although beng very close to presumpton (Latn notora non egent probatone), t cannot be treated as the latter due to objectve reasons. Or, n the worst case, t mght become a knd of stereotype fxed n the human conscousness arousng clearly dstnctve dogmatc assocatons such as the followng: f t s snow, t s whte, f t s a brd, t has wngs and can fly and etc.) Thus, n common sense presumpton s nothng else but a predcton (general assumpton) based on the laws of logc reflectng some general tendency (of the fact, event etc.). Lterature often expresses the vew that the frst to use the term presumpton were ancent Romans. However, t s assumed that presumptons are not the nventon of the ancent Roman Empre as they have been used before the Romans. The Romans smply adapted them to the law. One of the classcal examples used n the Roman law s a so-called Presumpton of Mucan (Latn praesumpto Mucana). The essence of the presumpton formulated by Quntus Mucus Scaevola s the followng: f a marred woman s not able to prove the source of her acqustons (assets) t s assumed that they have been receved from her husband untl the opposte s proven. 7 Modfcatons of ths presumpton can be found even n the modern law. Today, whle mantanng the core essence of praesumpto Mucana, the modern presumpton mght sound as follows: f the weak party to the process s not able to prove the source of hs/her acqustons (assets), t s assumed that they have been 6 McBane (1938) Mousouraks (2003) ; Suggeston n tema d praesumpto Mucana (2005) lnk 1.

4 LEGAL PRESUMPTIONS IN THE CONTEXT OF CONTEMPORARY CRIMINAL JUSTICE acqured fraudulently and have to be returned to the stronger part of the process. To gve an example, a presumpton the content of whch n essence s the same s consoldated n Clause 72(3) of the Crmnal Code of the Republc of Lthuana. 8 The fact that ancent Romans used presumptons n parallel wth personal testmones qute regularly n ther court processes can be explaned by the fact that Roman law, n partcular, focused on practcal actvtes, ther mprovement and optmzaton. In such cases where t turned out to be dffcult or even mpossble to prove any fact of everyday lfe, presumptons used to come to the rescue. Although presumptons can be found n the prncples of Roman law, solutons arrved at by lawyers and n ther publcatons as well as wordng of laws, t s consdered that presumpton establshed by the law are deprved of ther orgnal essence. Ths s because the legal change of the nherent nature of the burden of proof deprves the judge of the opportunty to freely assess the sgnfcance (meanng) of the fact. Concepts of presumptons found n lterature can be dvded nto two groups: those whch descrbe only an area of ther applcaton avodng specfcaton of features of the presumptons (e.g. a presumpton s a legal devce whch operates n the absence of other proof to requre that certan nferences be drawn from the avalable evdence ;) 9 those whch are formulated by reference to the most mportant dstngushng features of the presumpton (e.g. a presumpton s [a] legal assumpton that somethng s a fact based upon another proven fact or set thereof.) 10 The defnton of the concepts belongng to the frst group s faulty. Indeed, dstnctve features of a presumpton that mght enable the dstngushng of ths element of legal technque unambguously from smlar ones (e.g. a legal fcton) reman undefned. In the second group of concepts, regardless of the dversty of defntons, one feature of the presumpton s emphaszed unanmously a probablstc nature, resultng from the content of the concept tself as the term presumpton orgnates from the Latn word praesumpto meanng antcpaton, 11.e. preconceved guess, assumpton. For ths reason presumpton s most often descrbed as the assumpton based on probablty,.e. an dea that s taken to be true on the bass of probablty. The attempt to defne presumpton usng the term assumpton s not the best one as other actons or phenomena that are not treated as presumptons are descrbed smlarly n the jurdcal context, such as: verson the assumpton concernng a sngle fact or a group of relevant facts that are mportant to the case explanng the orgns of these facts and ther nterrelaton; suspcon the assumpton based on specfc data that a partcular person s lkely to have commtted a crmnal offence; hypothess (Greek hpothess) a scentfcally based assumpton used for explanaton of certan phenomena,.e. about the structure of objects, nature of nterrelatons between objects, possble ways to solve problems and etc. Ths descrpton of dfferent phenomena or actons s suffcent only when such categores as verson, suspcon, hypothess, presumpton are consdered n solaton 8 Crmnal Code of the Republc of Lthuana, approved by the Law No. VIII-1968 dated 26/09/2000 (2012) lnk 2. 9 Black s Law Dctonary (1990) Law Dctonary (2006) Lanham (1991) 118.

5 466 Tomas Rudzks, Arturas Panomarovas from each other, although f consdered n conjuncton, such characterzaton leads to more confuson than clarty. Essentally, ths s precondtoned by two reasons: frst of all, versons, suspcons and hypotheses, n contrast to presumptons, are provsonal categores. Presumptons are not nfluenced by the factor of tme: they contnue to exst as they have exsted before. Second, the concept verson reflects not so much a probablstc assumpton, but rather connectons. So f t s possble to explan the lnks between several factors by more than one premse, several versons can be arrved at. Suspcon s assocated wth a specfc person, whereas presumpton s assocated wth a group of persons exposng defnte qualtatve features. Hypothess s a scentfcally based assumpton. Presumpton s, n fact, statstcally based on the premse. Thus, any presumpton at the same tme s an assumpton, but not any assumpton mght be and s a presumpton. From the stochastc pont of vew, the presumpton can be defned as a functon, dependng on the specfc crcumstances whch descrbe the probablty of reasonable assumpton (presumptve concluson): p = P ( A ), where p presumpton (to be precse, presumptve concluson), A : A = {ω 1,..., ω n },, n ϵ N factors on the bass of whch a specfc outcome s presumed (for each separate (-th) presumpton, there s a dstnctve totalty of (n-dmensonal) factors). Then P : P ={p ϵ N } s a space (set) of legal presumptons, Ω : Ω = {ω 11, ω 12..., ω,...},, k jk ϵ N fnte or numerable space (set) of all j elementary factors (events, crcumstances), the assessment of whch allows to draw conclusons on the possblty to apply presumptons, and A, N. 1 1 st Proposton. p 2 ; 1, N. From the dscussed concept of presumpton, nterrelaton of the condtonal probablty 12 P( A B ) 1, N(where B ϵ Ω s a set of factors on the bass of whch the crcumstance A s presumed) and from the observaton based on the multplcaton theorem on probablty 13, 1 P( A B ) P( B ) p 1. 2 The stuaton when p 1, ϵ N s wrong as well f the presumpton always, wth no excepton, proves, t s not a presumpton already, but a mandatory event, 14.e. t loses status of presumpton. Ths s also proven by the relaton p 1 P( A B ) 1 A B, n other words, there s no need to go from the known to the unknown because the avalable facts per se and unambguously mply the concluson descrbed n such a presumpton. Even from the lngustc pont of vew the term presumpton cannot be used to name an unquestonable, clear and undenable consequence. Generally speakng, the 1 st Proposton formally descrbes a feature of suffcent plausblty of presumpton: one or another assumpton about the unknown facts becomes sgnfcant only when t s determned (emprcally) that under certan crcumstances t s usually (wth hgh probablty) correct. 12 The condtonal probablty P (A B ) of an event A s the probablty that the event wll occur gven the knowledge that an event B (condton B) has already occurred (Condtonal Probablty (2013) lnk 3). 13 P( A B) P( B) P( AB) P( A) P( BA) (Condtonal Probablty, Independence and Bayes Theorem (2014) lnk 4). 14 Mandatory event denotes an event whch mandatorly occurs after a set of certan crcumstances s realzed.

6 LEGAL PRESUMPTIONS IN THE CONTEXT OF CONTEMPORARY CRIMINAL JUSTICE The structure of presumpton bascally conssts of three elements: (a) basc (really known) fact (proposton); (b) putatve (suppostonal) fact (proposton),.e. the presumed fact; and (c) a logcal lnk or logcal reasonng that allows proceedng from the known to the putatve fact (statement). 15 Although presumpton s a consequence of certan reasonng, t would be wrong to put a sgn of equalty between the presumpton and the logcal concluson. The logcal reasonng s the way that leads to the objectve the logcal concluson. However, the logcal concluson, as well as the presumpton, beng the logcal result of reasonng, 16 dffers from the latter by the dfferent consequences t causes (t dstrbutes the burden of proof between the partes n one way or another), and ts oblgatory character. The presumpton whch s consoldated n legslaton, as opposed to the logcal concluson, s always mandatory 17 and does not lose ts power, even f the exstence of the presumed fact s dened n a specfc case. Opnons that the presumpton, unlke many other closely related categores, s ndependent of the wshes and preferences of the partes and s the expresson of nductve and (or) deductve reasonng n law 18 are found n the lterature. In other words, t s asserted that the presumpton can be the result not only of nductve reasonng,.e. presumpton arses from the facts that are often repeated, but also of deductve reasonng. Ths reasonng allows us to draw a concluson that the presumpton can arse not only from the facts that are often repeated, but also from the facts that are only occasonally repeated or occur very rarely (Latn praesumpto ex eo quod raro at nterdum). Takng nto account all the varety of legal constructs presently observed under the concept of presumpton, t can be stated that the content of the presumpton s of dchotomc nature (due to the use of dual form of logcal reasonng: nductve and deductve), whle ts structure s mxed. 19 Dependng on a concrete presumpton the presumed fact could be really probable, but t may be almost ncogtable. 20 Takng nto account the role n the truth-establshng process, do we have to settle for a fuzzy concept concernng one of the most mportant elements of jurdcal technque, namely presumptons? In our opnon, the answer to the queston when an assumpton of one or another degree of probablty can be regarded as a presumpton, and when t acqures a dfferent meanng and content and, therefore, should be consdered the element of legal technque other than presumpton, can be found analyzng laws of cognton and logc. Ths s so because the presumpton, unlke other forms of expresson of assumptons, s an epstemologcal categorzaton. 15 Mendonca (1998) James (1961) 51; Rce and Cutter (2002) Manuc (2010) Some presumptons (for example, rrebuttable presumptons ) lack an element of logcal lnk or logcal reasonng, enablng the transton from the known to the putatve fact. 20 Presumptons (2010) lnk 5.

7 468 Tomas Rudzks, Arturas Panomarovas 3. PRAESUMPTIO EX EO QUOD PLERUMQUE (Presumptons arse from what generally happens) Most presumptons are categores derved on the ground of nductve reasonng. In the classcal sense, a presumpton s an antcpaton based on the probable knowledge and arsng from the facts that are repeated most often (Latn praesumpto ex eo quod plerumque). Or, more precsely, presumpton s an antcpaton, whch s based on certan socal regulartes. The black lungs presumpton can serve as an example. After the long observaton of persons workng n the coal mnes of the Unted States, t was concluded that the persons who have worked n coal mnes for 10 years or more de from pneumoconoss restrctve lung dsease caused by norganc dust (coal dust) much more frequently than other people. Therefore, n order to provde addtonal health guarantees to mners, a presumpton of black lungs 21 has been developed and legally consoldated as follows: f a mner after workng n a coal mne for 10 or more years becomes ll wth pneumoconoss, t s consdered that the dsease s the effect of workng n a coal mne, untl proven otherwse; f a mner workng n a coal mne was sufferng from respratory nflammaton dsease and ded, t s consdered that he ded of the pneumoconoss, untl proven otherwse; f a mner sufferng from an ncurable form of pneumoconoss des, t s consdered that he ded from ths dsease. 22 We may tentatvely dentfy the black lungs presumpton as the result of nductve cognton or emprcal generalzaton, whch has been obtaned after examnng mners and estmatng that they have a certan characterstc, namely an ncreased predsposton to restrctve lung dsease. The method of nductve reasonng from the true assumptons allows us to draw only plausble conclusons, whch bascally requre more precse evdence. The uncertanty of the concluson drawn by the nductve method s determned by the relatvty of knowledge ganed by experence. Inducton s possble due to the regular repetton of occurrng events. Due to ths repetton, a general concluson can be arrved at nvolvng all the objects belongng to that group after examnng only part of the objects. At the same tme, t should be noted that complete nducton s possble as well. In the case of complete nducton, the general concluson about all objects of the group s drawn only when all objects of the tested group are examned wthout excepton. Complete nducton always leads to the unequvocal concluson. Thus, from the aspect of the result, t s the same as deducton and dffers only n the reasonng process. Conclusons made by the complete nducton reasonng method cannot be recognzed as presumptons, because they uncondtonally mply relatons p = 0 or p = 1, what, n turn, contradcts the requrements of the 1 st Proposton. In the case of selectve nducton, statements of general character,.e. statements about all objects of the group, are obtaned after examnaton (observaton, experment) of certan cases, estmatng a partcular feature of separate (not all) objects of the group, and then drawng a generalzed concluson that all objects of the group have that partcular feature. If after an examnaton of the group of objects S, t s not concluded that each object s 21 Rce & Cutter (2002) US Federal Coal Mne Health Act of 1969 (2010) lnk 6.

8 LEGAL PRESUMPTIONS IN THE CONTEXT OF CONTEMPORARY CRIMINAL JUSTICE characterzed by a partcular feature P, nducton s not satsfed because the drawn concluson s the opposte of the argument that all the nvestgated objects of the group S have feature P. For example, there s a presumpton of knowng the procedural rghts and dutes wdely used n a crmnal tral. Once t s establshed that a party n prvate crmnal process (the suspect, accused, vctm, cvl plantff, cvl defendant and ther representatves, pledge gver, the person whose property rghts are lmted, a wtness, etc.) s not famlar wth the exstng procedural rghts and (or) dutes, the nducton process ends and t means that the presumpton of knowledge of the procedural rghts and oblgatons s not appled n a gven case. Inducton s a reductve way of reasonng. Thus, a concluson whch s drawn on the bass of ths method of reasonng s only probable. Furthermore, nducton dffers from other reductve consderatons only by the fact that ts concluson s summatve n nature. The mechansm of formaton of presumptons derved by the nductve method nvolves three stages: 23 (1) dstncton of a domnant feature,.e. the feature characterstc to objects of the nvestgated group; (2) establshment of a causalty relaton between the known and the unknown; (3) formaton of a belef about the exstence of the alleged fact,.e. the fact that such a feature s characterstc to other objects, whch although belong to the group under nvestgaton but have not been nvestgated themselves. In ths way, the logcal content of presumptons, whch are derved on the bass of nducton, can be expressed as follows: f the majorty of S has the feature P, t s assumed that all S are characterzed by P,.e. f nvestgaton of a group of S objects reveals that these objects have a common characterstc feature of P, t s concluded that the feature P s typcal to objects S. The formalzed expresson of the nductve reasonng mght be as follows: mx, m: x 1 m; x S, m N, P f( X m ) n: n m nm, N, P f( X n ). Examples of nductve reasonng are the followng, mners who have been workng n coal mnes for 10 or more years are sufferng from restrctve lung dseases caused by coal dust; persons who are (have been) brought to crmnal lablty are compos ments etc. When there s a certan logcal lnk between facts, the presumpton helps to proceed from a certanly known fact to the expected (putatve) fact whch s taken as true. Certan mmutablty s characterstc to presumptons derved by the method of nductve reasonng as they may be consdered as rght only at a gven pont of tme and only when they are nterpreted (understood) n the strctly defned context. 24 When tme and the context of nterpretaton of the presumptons change, a person may not accept the presumptons whch he has accepted before and has not consdered them an obstacle n the search for truth. However, f presumptons can only be bult on the bass of nducton (praesumpto ex eo quod plerumque), how can constructons of such presumptons as nnocence, 23 Manuc (2010) Mendonca (1998) 402.

9 470 Tomas Rudzks, Arturas Panomarovas knowledge of legal acts be explaned? Snce t s qute evdent that some prosecuted defendants wll be convcted of crmnal offenses, and t s mpossble to fnd anyone who comprehensvely knows the content of the whole legslaton. 4. PRAESUMPTIO EST AEQUILIBRIUM (ON EXEMPLUM PRAESUMPTIONEM INNOCENTIAE) (Presumpton arses from facts that are repeated only occasonally or very seldom, usng presumpton of nnocence as an example) Presumptons of nnocence and knowledge of legal act are not presumptons, whch are constructed entrely on the bass of nductve reasonng (.e. on what usually s or happens). How are presumptons such as these or others of a smlar knd arrved at? We wll provde an answer to ths queston whle analyzng the presumpton of nnocence. All presumptons whch are not supported by repetton of certan events, facts or features are formulated on the bass of essentally the same prncples. There s a predomnant opnon that presumpton of nnocence n Europe n ts present form frst appeared n the Declaraton of the Rghts of Man and of the Ctzen (French Déclaraton des Drots de l Homme et du Ctoyen) passed n France n 1789, whch was ncorporated n the French Consttuton two years later. 25 In the USA a smlar legal nsttuton orgnates from the U.S. Bll of Rghts whch was ratfed n 1791 (the presumpton of nnocence bnds the federal court system under the Ffth Amendment Due Process Clause). 26 Presumpton of nnocence appeared at a legslatve level of ndvdual countres even later, e.g. n Hungary n Act No. I of 1973 on Crmnal Procedures. 27 The presumpton of nnocence s one of the legal maxms on the bass of whch all crmnal procedures and ther separate components are constructed. Crmnal procedures are always ntated by the prosecuton. Therefore, any court hearng a crmnal case must answer the queston whether the prosecuton statements, n accordance to whch the accused has been brought to the court, really stand. Falure of the prosecutor to prove the legtmacy of the clam on whch the charges have been based n court determnes the outcome of the crmnal proceedngs,.e. adopton of a court decson favorable to the accused person. An outcome such as ths n a crmnal proceedngs, n partcular, s dctated by the laws of elementary logc. Whoever alleges, he must prove (substantate) the veracty of the facts or statements (Latn semper necesstas proband ncumbt e qu agt). In ths case, the party that ntates the crmnal process must prove that the accused person has commtted the alleged offense and that he/she s really to blame for the commtted acts. For example, the European Court of Human Rghts has stated that the burden of proof s on the prosecuton, and any doubt should beneft the accused. It also follows that t s for the prosecuton ( ) to adduce evdence suffcent to convct hm. 28 If there s no prosecutor usually there s no crmnal procedure. When the prosecutor s reluctant to lead the process, no one can be forced to ltgate (Latn nemo udex sne actore, nemo nvtus agere cogatur). And only f the crmnal procedure starts, n order to avod possble abuse of procedural poston, and to balance possbltes and rghts of dfferent 25 Pennngton (2003) Ingraham (1996) Act No. I of 1973 on Crmnal Procedures of Hungary (2014) lnk Barberà, Messegué and Jabardo v Span (1988) Seres A no

10 LEGAL PRESUMPTIONS IN THE CONTEXT OF CONTEMPORARY CRIMINAL JUSTICE partes of the process, a rule of conduct n the crmnal process semper necesstas proband ncumbt e qu agt 29 s renforced wth certan specfc elements of jurdcal technque, such as the presumpton of nnocence. Could the presumpton of nnocence, as well as black lungs presumpton be regarded as the result of nductve reasonng? For example, could one derve the presumpton of nnocence from the prncpal provson of bon vr (a good person), under whch the majorty of people are good, honest, tendng to follow the laws and obey ther mperatves (even n ancent Roman tmes, the concept of bon vr praesumpto, accordng to whch all people were consdered to be honest, untl proven the contrary, was not unfamlar)? Bon vr presumpton s the result of nductve reasonng because most people are really honest, tend to obey the law and fulfll requrements. Thus, bon vr presumpton s derved from facts that often recur. However, n the crmnal process, not anybody (and thus potentally bon vr) s declared the suspect, but only a person aganst whom enough evdence s collected to support the gult ( ant-honesty ). Therefore, there s no ground to state that the presumpton of nnocence s the same bon vr presumpton only acqurng a slghtly dfferent content and that t, lke the bon vr presumpton, could be regarded as the result of nductve reasonng. In ths case, a more approprate rule s praesumpto ex eo quod raro (presumpton arses from the facts whch rarely occur). Thus, t can be argued that the orgns of presumptons of nnocence and black lungs are not dentcal. Alternatvely, can the presumpton of nnocence be consdered a result of deductve reasonng? Deducton s a method of reasonng where the applcaton of logcal means leads from a generally correct statement or statements (assumpton or assumptons) towards a concluson or conclusons that are also true (.e., when the general assumpton s correct, an ndvdual consttuent assumpton s also uncondtonally correct. For example, f all attorneys are lawyers and Peter s an attorney, t must be concluded that Peter s a lawyer). It would not be correct to extend the same statement to the presumpton of nnocence because t s not a common rght assumpton (the contrary mght be proven convctons are accepted and become effectve, so t s not deductve). Second, deducton requres that p ϵ {0,1}, thus, such an assumpton s ether not a presumpton (when p = 0), or t s an absolute and undenable presumpton (when p = 1),.e. sameness. To put t dfferently, the presumpton of deductve dervaton does not meet the requrements of the 1st Proposton. Thrd, these assumptons do not dsplay one of the elements mandatory to the presumpton 30 a logcal lnk or logcal reasonng proceedng from the known to the putatve fact (statement). Therefore conclusons formed by the way of deductve method cannot be recognzed as presumptons despte beng called so. The use of the presumpton of nnocence n crmnal procedure can be explaned by a prncple provson nde datae leges, ne fortor omna posset, whch has not yet acqured the authorty of the unversally recognzed wrtten prncple of crmnal procedure. Also by a theory of search for the truth n classcal crmnal proceedngs, accordng to whch n order to dscover the truth n a crmnal process, frst of all, there must be ltgants (prosecuton and defense) and, secondly, the ltgants must be equal. In the crmnal procedure, equalty s understood somewhat dfferently than t s n prvate law. Ths understandng of the term s determned by the specfcs of crmnal proceedngs. 29 In accordance wth the unwrtten prncpal provson, the law shall not endow the powerful (the strong) wth even more power than one already has,.e. t shall not turn the strong nto the almghty (Latn nde datae leges, ne fortor omna posset). 30 Mendonca (1998) 406.

11 472 Tomas Rudzks, Arturas Panomarovas In the context of crmnal proceedngs the equalty of the procedural rghts of the partes of the process (persons nvolved n the process) should be stressed, but not the procedural equalty. Ths means that both physcal and legal persons as well as an nvestgatng offcer shall have equal rghts, but they have dfferent possbltes to mplement these rghts. The classcal crmnal procedure, whch s domnated by the adversaral prncple, must nvolve partes that have to be of the same weght category. It mples that t s necessary that the partes are equal as far as possble. Otherwse, the process mght transform from far process, where each of the nvolved partes are to be gven a real opportunty to prove ther truth and convnce the judge (a person enttled to take a decson) that ths party rather than the other one s rght, nto a knd of a crackdown by whch the strong party n the procedural sense, 31 usng legal tools, cracks down on the other (weak) party. For ths reason we have to speak not about the formal equalty of the partes of classcal crmnal proceedngs, but about the legal one. In the crmnal procedure, one should not be surprsed or offended that lookng at t from the formal legal postons, the actual totalty of the rghts exercsed by dfferent partes of the process s not dentcal or unform. In many cases, the procedural status of the persons mplementng a prosecuton and persons sustanng the state prosecuton does not match wth the procedural status of the lawyer, defense counsel and the accused (suspect). Ths status does not match even durng the tral. In the conventonal crmnal process one of the partes to the process s the state, on behalf of whch the crmnal prosecuton s executed. The other party, regardless of ther professonal occupaton or socal status, s a prvate person. In order to somehow balance the avalable rghts of the state and the prvate person, the latter s gven the opportunty to favor defensons,.e. an opportunty of the defense prorty. The balance s acheved by explotng capabltes of legal technque nvokng the presumpton of nnocence and one of the effects of the applcaton of the latter n dubo pro reo rule (all ambgutes and uncertantes that cannot be elmnated usng reasonable legal means shall be nterpreted n favor of the accused). The presumpton of nnocence helps to enable a redstrbuton of the burden of proof between the partes. It removes the duty of the burden of proof from the weak party of the process and, at the same tme, transfers ths duty to the other (the strong) party. If the presumpton of nnocence was absent n the crmnal procedure, there would be no possblty for the prorty of defense. In such cases, the crmnal process would become normal, standard ltgaton proceedngs. In essence, ths s no dfferent from, for example, the cvl procedure, where each party to the process s requred to prove veracty of the underlyng facts and the accuracy of ther clams. Ths s n accordance wth the general rule whch can be dated back to ancent Roman tmes, whch says that the burden of proof falls to the one who asserts, but not to the one who denes (Latn onus proband ncumbt e qu affrmat, non e qu negat). Thus, each party of the crmnal process would have to prove the facts t reles upon. Therefore, a cvl plantff submttng substantve legal demand aganst the defendant durng the tral of the cvl process must ndcate the subject of the plant (the plantff s clam), and the factual bass 32 (the crcumstances on whch the plantff s clam s based and 31 A party that performs the functon of prosecuton, n the classcal crmnal process ths functon s performed by competent state authortes and ther offcals entrusted to mplement ths functon. 32 Clause 135 of the Cvl Procedure Code of the Republc of Lthuana, approved by the Law No. IX-743 dated 28/02/2002 (2012) lnk 8.

12 LEGAL PRESUMPTIONS IN THE CONTEXT OF CONTEMPORARY CRIMINAL JUSTICE the evdence supportng the facts). The defendant, by statng a counterclam or by provdng replcaton to the clam the bass for a counterclam or objectons to the clam also has to ndcate whether he agrees or not wth an acton brought aganst hm. Ths way the partes of the cvl process defne operatonal lmts to the court whch s resolvng ther dspute and dstrbute the burden of proof amongst themselves at the begnnng of the process, wthout nterference of the court. Ths means that the plantff must prove the valdty of hs clam (the factual bass of the clam), or, n other words, he must prove facts supportng hs rght. The defendant must, n turn, prove the refusal of the plea (Latn reus n excpendo ft actor), or, n other words, he must prove the facts negatng the plantff s rght. An excepton to ths rule occurs n cases when standards of the cvl procedural law establsh specal rules of evdence, ncludng a varety of presumptons, and n no-fault cvl lablty cases. The presumpton of nnocence, by gvng prorty to the defense, creates a requrement for the person who nstgates the prosecuton to be more actve. However, t does not releve the burden of proof from the defendant to the full extent n order not to nfrnge the unversal prncples of crmnal procedure (such as good fath, adversaralty and so on). Thus, the presumpton of nnocence s based not on the probablty of the recurrence of certan facts, but on the balance of powers (possbltes). In other words, the term s used to name the elements of jurdcal technque, whch helps to balance the possbltes of the partes of the process nstead of helpng to move from the known fact to a hypothetcal consderaton. By denotng the presumpton of nnocence as p I, let s examne the complance of ts features wth the formal model of presumpton. I 2 nd Proposton. p P, N. Let us denote the person B suspected of commttng the -th crmnal offense, A the same person, aganst whom the court judgment has already been passed and entered nto I force, A, B ϵ Ω. Let us assume that the presumpton of nnocence p s one of the legal presumptons,.e. p I P, N. Then, the concepton of presumpton mples the followng feature of the presumpton of nnocence: P( A B ) 1 P( A B ), N 0, (1) P( A ) 1 P( A ) where P ( A B ) n ths case sgnfes condtonal probablty that the person B suspected of commttng a crmnal offense would be prosecuted and acqure the status of the convcted person A. P( A B ) Whereas A B and A B, N, A B \ A P( A B ) P( B ) P( ( B \ A ) B) P( B \ A ) P ( A 1 ) P( B ) P( B ) P ( B ) P( A P ( ) 0, A B ) 1 correspondngly P( A ) 1. Then P( A ) P( A B ) P( B ) P( A B ) P( A ) P( B A ) P( B A ), 1.e. we arrve at a logcal contradcton because assumng that the presumpton of nnocence p I s one of the legal presumptons ( p I P, N) an a pror wrong concluson s obtaned f the person s nnocent, he wll nevtably become a suspect.

13 474 Tomas Rudzks, Arturas Panomarovas Therefore, assumng, that the presumpton of nnocence belongs to the famly (legal space) of presumptons, 33 we come across contradctons, n other words, t can be sad that the concept of the presumpton of nnocence lacks the features of the legal presumpton. In order to verfy the theoretcal nsghts, let us examne the proportons of persons suspected of crmnal offenses (prosecuted persons) and proportons of persons convcted by courts n Lthuana from 2005 to Offcal statstcs provde the followng data: 34 Fgure 1. Proportons of convcted and prosecuted persons n Lthuana Let us note that n the case of the presumpton of nnocence, the concepton of presumpton (see the 1 st Proposton and feature of the presumpton of nnocence (1) gven n the 2 nd Proposton) mples that the number of persons convcted s less than 50 percent of all the persons suspected of commttng crmnal offenses (Fgure 1 shows the lghter shade below 50 percent lmt of the lne), whle n realty the average convcton rate s above 60 percent of all suspects. A smlar stuaton s faced n other countres, for example, n the U.S. the share of convcts (convcton rate) n year 2010 was 93 percent. 35 It should be noted that the presumpton of nnocence dffers from real presumptons of nductve nature n ts orgn. However, the structural dfferences are mnmal. The logcal structures of, for example, both the black lungs presumpton and the presumpton of nnocence are dentcal and can be expressed n a formal logcal lnk of mplcaton f..., then : f there s S then S has a feature P (e.g. f S s a human beng, then S has the ablty 33 The term legal space of presumptons n ths context defnes a totalty of presumptons (an aggregate of legally sgnfcant assumptons to be consdered as vald presumptons) wth ther rules and area of applcablty. 34 Data on Suspected and Convcted Persons. Department of Statstcs (2013) lnk Unted States Attorneys Annual Statstcal Report (2011) lnk 10.

14 LEGAL PRESUMPTIONS IN THE CONTEXT OF CONTEMPORARY CRIMINAL JUSTICE to reason (feature P) ). In the case of both presumptons, the feature P s (formally) derved from S, namely, n the case of the black lungs presumpton: f a mner (S) worked n the coal mne for 10 or more years, he (S) suffers from a restrctve lung dsease caused by coal dust (feature P); n the case of the presumpton of nnocence: f the suspect or prosecuted person (S) s suspected of or accused of commttng a crmnal offense, he (S) s consdered to be nnocent (feature P). 5. CONCLUSION The role of law as the regulator of publc relatons mples a rgorous rhetorc. Rgour shows tself n a proper and precse usage of notons n formulaton of legal thought, be t a legal act or an academc publcaton. Accordngly, n ths respect the elements of legal technque should be gven ncreased attenton preventng dversty of nterpretatons. Ths artcle shows that the concepton of presumptons s not yet fully clarfed. It was ascertaned that only part of the legal categores n queston constructed by the method of selectve nductve reasonng can be recognzed as presumptons. Presumptons based on the reasonng of complete nducton or deducton as well as praesumpto est aequlbrum (a good example could be the presumpton of nnocence) cannot be consdered as presumptons (the legal construct praesumpto est aequlbrum only shares wth presumptons a smlar logcal structure). In other words, the means of balancng procedural rghts of the partes cannot be recognzed as presumptons snce they are not precondtons, but only measures of mplementaton of the equalty prncple of the partes to the process. 36 LITERATURE Black, H.C. et al. (eds), Black s Law Dctonary (6th edn, West Publshng 1990). James, F. Jr., Burdens of Proof (1961) 47/51 Vrgna Law Revew Journal Ingraham, B.L., The rght of Slence, the Presumpton of Innocence, the Burden of Proof, and a Modest Proposal: A Reply to O Relly (1996) 86/2 Journal of Crmnal Law and Crmnology Lanham, R.A., A Handlst of Rhetorcal Terms (Unversty of Calforna Press 1991). Wld, S.E. (ed), Law Dctonary (1st edn, Webster s New World 2006). Manuc, L., General Consderatons on Presumptons n Neal, C., Wrght, C., Frechette, S. (eds), 4th World Congress on the Advancement of Scholarly Research n Scence, Economcs, Law, and Culture (Addleton Academc Publshers 2010) McBane, J.P., Presumptons: Are They Evdence? (1938) 26/5 Calforna Law Revew Journal Mendonca, D., Presumptons (1998) 11/4 Rato Jurs Mousouraks, G., The Hstorcal and Insttutonal Context of Roman Law (1st edn, Routledge 2003). Pennngton, K., Innocent Untl Proven Gulty: The Orgns of a Legal Maxm (2003) 63 The Jurst: Studes n Church Law and Mnstry Petrosk, K., The Publc Face of Presumptons (2008) 5/3 Epsteme Rce, P. R. & Cutter, S. S., Problems wth Presumptons: A Case Study of the Structural Presumpton of antcompettveness (2002) 47/4 Anttrust Bulletn Even f a person admts havng commtted a crmnal offense, the process of proof does not stop as law enforcement agences contnue collectng the evdence. Although n such a case there s no need to presume nnocence.

15 476 Tomas Rudzks, Arturas Panomarovas Wodage, W.Y., Operaton and Effect of Presumptons n Cvl Proceedngs (2010) 4/2 Mzan Law Revew Yablon, Ch.M., A Theory of Presumptons (2003) 2/3 Law, Probablty and Rsk LINKS 1. Suggeston n tema d praesumpto Mucana (2005) < rvstadrttoromano/allegat/drttoromano05lambert.pdf> accessed 1 June Crmnal Code of the Republc of Lthuana (2012) < legalactsearch> accessed 25 June Condtonal Probablty (2013) < accessed 15 February Condtonal Probablty, Independence and Bayes Theorem (2014) < www/18.05/pdf/class3-prep.pdf> accessed 12 July Presumptons (2010) < HRS_ htm> accessed 3 June Federal Coal Mne Health Act of 1969 (2010) < v33n3p20.pdf> accessed 1 June Act No. I of 1973 on Crmnal Procedures (2014) < jsp?d=2200> accessed 18 November Cvl Procedure Code of the Republc of Lthuana (2012) < legalactsearch> accessed 1 June Data on Suspected and Convcted Persons. Department of Statstcs (2013) < lt/en/home> accessed 15 February Unted States Attorneys Annual Statstcal Report (2011) < fles/usao/legacy/2011/09/01/10statrpt.pdf> accessed 22 July 2013.