Proof lies on him who asserts, not on him who denies.
– Code of Justinian (22.3.2)
It has long been held that a person accused of a crime is presumed innocent. In 1895, the United States Supreme Court in Coffin v. United States stated that, “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…”1
However, the presumption of innocence is much older than 1895. The idea that the prosecution must prove an accused guilty and that the accused has no burden to prove his innocence began in the Roman times. One of the first instances that it was written was in the Code of Justinian, which stated:
“Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day” – Book IV, Title 19 (emphasis added).
It was not until 1797 that the phrase “innocent until proven guilty” was coined.
So how and why did it go from “unless” in the Digest of Justinian to “until?” And does it matter? We do not yet have the answer to our first question, and we spent some time looking, but as to the second question: yes, we believe it does matter.
The word “until” means “up to the time that” or “up to such time as,” while “unless” means “except on the condition that” or “under any other circumstance then.” “Until” presumes that a condition will be met, while “unless” does not make any presumption at all. Unless is a precondition.
While it may seem inconsequential to delineate the differences between the words “until” and “unless,” especially because the phrase “guilty until proven innocent” is so engrained in our society, it is interesting to note and to consider that Texas specifically uses the word “unless” in the definition of presumption of innocence:
“All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”2
Did the Texas Legislature mean to use the word “unless?” Or was it a typo or some sort of oversight? Curious, we looked at 15 other states. Out of those 15, only one used the word “unless” like Texas does.3 It seems to us that using the word “unless” in the Texas definition of presumption of innocence was a deliberate choice.
Whatever the reason, the Texas Code of Criminal Procedure defines presumption of innocence using the word “unless,” and perhaps we as criminal defense attorneys ought to as well. “Until” creates an intrinsic bias against our clients. When we use the word “until,” we tell the jury it is going to happen: the state will prove its case against our client and overcome the presumption of innocence. And why would we give the state even the slightest advantage, when they already have so much in their favor?
Maybe it is time to give the old 1797 phrase a makeover and bring it back to its roots by saying “innocent unless proven guilty” to our clients, our courts, and perhaps most importantly, our juries.
- 156 U.S. 432, 453 (1895).
- Tex. Code Crim. Proc. Art. 38.03.
- KY ST RCRP Rule 9.56(1): In every case the jury shall be instructed substantially as follows: “The law presumes the defendant to be innocent of a crime, and the indictment shall not be considered as evidence or as having any weight against him or her. You shall find the defendant not guilty unless you are satisfied from the evidence alone, and beyond a reasonable doubt, that he or she is guilty. If upon the whole case you have a reasonable doubt that he or she is guilty, you shall find him or her not guilty.”