Evidentialism is a thesis in epistemology which states that one is justified to believe something if and only if that person has evidence which supports said belief.
Evidentialism is, therefore, a thesis about which beliefs are justified
and which are not. Evidentialism enjoys wide popular support and has
for centuries. Perhaps the earliest known proponents of evidentialism is
David Hume who said "A wise man apportions his beliefs to the evidence." Similarly, Hitchens's Razor states "what can be asserted without evidence can also be dismissed without evidence." Carl Sagan
has also stated "Extraordinary claims require extra ordinary evidence."
All of these statements imply acceptance of philosophical
evidentialism.
For philosophers Richard Feldman and Earl Conee, evidentialism is
the strongest argument for justification because it identifies the
primary notion of epistemic justification. They argue that if a person's
attitude towards a proposition fits their evidence, then their doxastic
attitude for that proposition is epistemically justified. Feldman and
Conee offer the following argument for evidentialism as an epistemic
justification:
(EJ) Doxastic attitude D toward proposition p is epistemically justified for S at t if and only if having D toward p fits the evidence.
For Feldman and Conee one's doxastic attitude is justified if it
fits one's evidence. EJ is meant to show the idea that justification is
characteristically epistemic. This idea makes justification dependent on
evidence.
Feldman and Conee believe that because objections to EJ have
become so prominent their defense for it is appropriate. The theses that
object EJ are implying that epistemic justification is dependent upon
the "cognitive capacities of an individual or upon the cognitive
processes or information-gatherings practices that lead to an attitude."
For Feldman and Conee, EJ is in contrast to these theses; EJ contends
that the epistemic justification for an attitude is only dependent upon
evidence.
Criticism
Plantinga'sReformed epistemology is a challenge against evidentialist epistemology. What Plantinga says is that the deliverances of reason consist of both properly basic beliefs and also beliefs based on propositional evidence. This is not the same as fideism, that is to say, "a leap of faith." The properly basic beliefs are deliverances of reason.
Critics of evidentialism sometimes reject the claim that a
conclusion is justified only if one's evidence supports that conclusion.
A typical counterexample goes like this. Suppose, for example, that Babe Ruth approaches the batter's box believing that he will hit a home run despite his current drunkenness and overall decline in performance in recent games.
He realizes that, however unlikely it is that his luck will change, it
would increase his chances of hitting a home run if he maintains a
confident attitude. In these circumstances, critics of evidentialism
argue that his belief that p = Babe Ruth will hit a home run is justified, even though his evidence does not support this belief.
Evidentialists may respond to this criticism by forming a distinction between pragmatic or prudential justification and epistemic justification. In Babe Ruth's case, it is pragmatically justified that he believe p,
but it is nevertheless epistemically unjustified: though the belief may
be justified for the purpose of promoting some other goal (a successful
at bat, in Ruth's case), it is not justified relative to the purely
epistemic goal of having beliefs that are most likely to be true.
A similar response follows the criticism that evidentialism implies all faith-based beliefs are unjustified. For example, fideism
claims that evidence is irrelevant to religious beliefs and that
attempts to justify religious beliefs in such a way are misguided.
Superficially, fideism and evidentialism have mutually exclusive takes
on religious beliefs, but evidentialists use the term "justification" in
a much weaker sense than the one in which fideists most likely use it.
Evidentialism merely defines the epistemic condition of a belief.
Although evidentialism states that the content of the evidence
does not matter, only that it constitutes valid justification towards
some proposition, a skeptical criticism may be levelled at evidentialism
from uncertainty theories.
One's evidence may be objectively disproved at some point or it may be
the case that one can never have absolute certainty of one's evidence.
Given the logic of arguments concerning principles of uncertainty and
randomness, skepticism towards knowledge merely becomes skepticism
towards valid justification.
Likewise, some say that the human mind is not naturally inclined to form beliefs based on evidence, viz. cognitive dissonance.
While this may be the case, evidentialists admit, evidentialism is only
meant to separate justified beliefs from unjustified beliefs. One can
believe that evidentialism is true yet still maintain that the human
mind is not naturally inclined to form beliefs based on evidence. He
would simply have to conclude that the mind is not naturally inclined to
form justified beliefs.
The infinite regress argument
Evidentialism also faces a challenge from the infinite regress
argument. This argument begins with the observation that, normally,
one's supporting evidence for a belief consists of other beliefs.
However, it seems that these other beliefs can do the job of justifying
only if they themselves are already justified. And evidentialism demands
that these supporting beliefs be justified by still further evidence if
they are to be justified themselves. But this same reasoning would
apply to the new, deeper level of supporting beliefs: they can only
justify if they're themselves justified, and evidentialism therefore
demands an even deeper level of supporting belief. And so on. According
to this argument, a justified belief requires an endless supply of
reasons. Some philosophers such as Thomas Nagel posit that this is an absurd conclusion.
In general, responses to this argument can be classified in the following ways:
Foundationalism: There exist beliefs that are justified, but not because they are based on any other beliefs. These are called properly basic beliefs, and they are the foundation upon which all other justified beliefs ultimately rest.
Coherentism:
Justified beliefs are all evidentially supported by other beliefs, but
an infinite set of beliefs is not generated, because the chains of
evidential support among beliefs is allowed to move in a circle. On the
resulting picture, a person's belief is justified when it fits together
with the person's other beliefs in a coherent way in which the person's
various beliefs mutually support one another.
A modest reasoner
subset of Coherentism would insist that all justifiable beliefs be
statements about "some objects" since the negation/complement of a some
statement is another some statement.
Skepticism: There cannot be any justified beliefs.
A modest reasoner
subset of Scepticism like the subset of Coherentism would likewise
insist and define all justifiable beliefs be statements about "some
objects" since the negation/complement of a some statement is another
some statement.
Infinitism:
Aside from these responses, some philosophers have said that evidential
chains terminate in beliefs that are not justified. Others have said
that, indeed, there can exist infinite chains of reasons.
Of the main responses, coherentism and skepticism are clearly
consistent with evidentialism. Coherentism allows evidential support for
all of our justified beliefs in the face of the regress argument by
allowing for circular chains of evidential support among beliefs. And
the skeptic here is utilizing an evidentialist demand to arrive at her
skeptical conclusion.
But because the resulting skepticism is so sweeping and
devastating, and because so many reject the legitimacy of the circular
reasoning embraced by the coherentist, foundationalism is the favored
response of many philosophers to the regress argument. And
foundationalism does not so clearly fit together with evidentialism. At
first glance, at least, the "basic" beliefs of the foundationalist would
appear to be counterexamples to the evidentialist's thesis, in that
they are justified beliefs that are not rational because they are not
supported by deeper evidence.
Non-evidentialist theories of knowledge and justification
Many contemporary epistemologists reject the view that evidential
support is the whole story about the justification of beliefs. While no
sensible epistemologists generally urge people to disregard their
evidence when forming beliefs, many believe that a more complete theory
would introduce considerations about the processes that initiate and
sustain beliefs. An example of one such theory is reliabilism. The most influential proponent of reliabilism is Alvin Goldman. According to a crude form of reliabilism, S is justified in believing p if and only if S's belief in p
is caused by a reliable process—a process that generally leads to true
beliefs. Some of these reliable processes may require the processing of
evidence; many others won't. So, Goldman would argue, evidentialism, on
which the justification of a belief always turns completely on the issue
of the belief's evidential support, is false. Likewise, evidentialism
will be rejected by more sophisticated versions of reliabilism, some of
which will allow evidence an important but limited role, as opposed to
the all-encompassing role assigned to it by evidentialism.
Other non-evidentialist theories include: the causal theory, according to which S knows p if and only if S's belief in p is causally connected in an appropriate way with S's believing p; and Robert Nozick's truth tracking theory, according to which S knows p if and only if (i) p is true, (ii) S believes p, (iii) S's attitude toward p tracks the truth value of p in that, when p is not true, S does not believe p and when p is true, S does believe p.
Another alternative perspective, promoted by David Hume's 18th-century opponent, Presbyterian philosopher Thomas Reid,
and perhaps hinted at by Hume himself, at least in some moods (though
this is a very controversial issue in interpreting Hume), has it that
some of our "natural" beliefs—beliefs we are led to form by natural
features of the human constitution—have what can be called an
"innocent-until-proven-guilty" status. Contrary to evidentialism, they
can be justified in the absence of any effective evidence that supports
them. They are justified just so long as one doesn't have good reason to
think them false.
A new account of the extent of our evidence is Timothy Williamson's claim that E=K: one's evidence is what one knows.
Going by the "letter of the law," Williamson's resulting theory is not
contrary to, but is rather an instance of, evidentialism. By allowing
our evidence to encompass everything we know, Williamson is able to give
thoroughly evidentialist accounts of many important epistemological
concepts. But, traditionally, evidentialists have presupposed much more
restrictive accounts of what our evidence is. Thus, Williamson's theory
is opposed to the spirit of much traditional evidentialism, primarily
because it turns evidentialism from an internalist account of
justification to an externalist account (due to the factive nature of
knowledge.) However, Williamson's work may point to a quite general way
to modify traditional evidentialism to make it better able to meet the
challenges it faces: whether or not one goes so far as to accept that E=K,
broadening one's view of what constitutes our evidence may provide a
way to address many of the objections to evidentialism, especially to
those disinclined to swallow skeptical consequences of a view.
Foundationalism concerns philosophical theories of knowledge resting upon non-inferential justified belief, or some secure foundation of certainty such as a conclusion inferred from a basis of sound premises. The main rival of the foundationalist theory of justification is the coherence theory of justification,
whereby a body of knowledge, not requiring a secure foundation, can be
established by the interlocking strength of its components, like a
puzzle solved without prior certainty that each small region was solved
correctly.
Identifying the alternatives as either circular reasoning or infinite regress, and thus exhibiting the regress problem, Aristotle made foundationalism his own clear choice, positing basic beliefs underpinning others. Descartes,
the most famed foundationalist, discovered a foundation in the fact of
his own existence and in the "clear and distinct" ideas of reason, whereas Locke found a foundation in experience. Differing foundations may reflect differing epistemological emphases—empiricists emphasizing experience, rationalists emphasizing reason—but may blend both.
In the 1930s, debate over foundationalism revived. Whereas Moritz Schlick viewed scientific knowledge like a pyramid where a special class of statements does not require verification through other beliefs and serves as a foundation, Otto Neurath argued that scientific knowledge lacks an ultimate foundation and acts like a raft. In the 1950s, foundationalism fell into decline – largely due to the influence of Willard Van Orman Quine, whose ontological relativity found any belief networked
to one's beliefs on all of reality, while auxiliary beliefs somewhere
in the vast network are readily modified to protect desired beliefs.
Foundationalism was initiated by French early modern philosopherRené Descartes. In his Meditations,
Descartes challenged the contemporary principles of philosophy by
arguing that everything he knew he learnt from or through his senses. He
used various arguments to challenge the reliability of the senses,
citing previous errors and the possibilities that he was dreaming or
being deceived by an Evil Demon which rendered all of his beliefs about the external world false. Descartes attempted to establish the secure foundations for knowledge to avoid scepticism. He contrasted the information provided by senses, which is unclear and uncertain, with the truths of geometry,
which are clear and distinct. Geometrical truths are also certain and
indubitable; Descartes thus attempted to find truths which were clear
and distinct because they would be indubitably true and a suitable
foundation for knowledge.
His method was to question all of his beliefs until he reached
something clear and distinct that was indubitably true. The result was
his cogito ergo sum
– 'I think therefore I am', or the belief that he was thinking – as his
indubitable belief suitable as a foundation for knowledge.
This resolved Descartes' problem of the Evil Demon. Even if his beliefs
about the external world were false, his beliefs about what he was
experiencing were still indubitably true, even if those perceptions do
not relate to anything in the world.
Foundationalism is an attempt to respond to the regress problem of justification in epistemology. According to this argument, every proposition requires justification to support it, but any justification also needs to be justified itself. If this goes on ad infinitum,
it is not clear how anything in the chain could be justified.
Foundationalism holds that there are 'basic beliefs' which serve as
foundations to anchor the rest of our beliefs.
Strong versions of the theory assert that an indirectly justified
belief is completely justified by basic beliefs; more moderate theories
hold that indirectly justified beliefs require basic beliefs to be
justified, but can be further justified by other factors.
Since ancient Greece, Western philosophy has pursued a solid foundation as the ultimate and eternal reference system for all knowledge. This foundation serves not only as the starting point merely as a basis for knowledge of the truth of existence.
Thinking is the process of proving the validity of knowledge, not
proving the rationality of the foundation from which knowledge is
shaped. This means, with ultimate cause, the foundation is true,
absolute, entire and impossible to prove. Neopragmatist philosopher Richard Rorty, a proponent of anti-foundationalism, said that the fundamentalism confirmed the existence of the privileged representation which constitutes the foundation, from which dominates epistemology. The earliest foundationalism is Plato's theory of Forms, which shows the general concept
as a model for the release of existence, which is only the faint copy
of the Forms of eternity, that means, understanding the expression of
objects leads to acquiring all knowledge, then acquiring knowledge
accompanies achieving the truth. Achieving the truth means understanding
the foundation. This idea still has some appeal in for example international relations studies.
Classical foundationalism
Foundationalism
holds basic beliefs exist, which are justified without reference to
other beliefs, and that nonbasic beliefs must ultimately be justified by
basic beliefs. Classical foundationalism maintains that basic beliefs
must be infallible if they are to justify nonbasic beliefs, and that only deductive reasoning can be used to transfer justification from one belief to another. Laurence BonJour
has argued that the classical formulation of foundationalism requires
basic beliefs to be infallible, incorrigible, indubitable, and certain
if they are to be adequately justified.
Mental states and immediate experience are often taken as good
candidates for basic beliefs because it is argued that beliefs about
these do not need further support to be justified.
Modest foundationalism
As
an alternative to the classic view, modest foundationalism does not
require that basic perceptual beliefs are infallible, but holds that it
is reasonable to assume that perceptual beliefs are justified unless
evidence to the contrary exists.[24]
This is still foundationalism because it maintains that all non-basic
beliefs must be ultimately justified by basic beliefs, but it does not
require that basic beliefs are infallible and allows inductive reasoning as an acceptable form of inference.
For example, a belief that 'I see red' could be defeated with
psychological evidence showing my mind to be confused or inattentive.
Modest foundationalism can also be used to avoid the problem of
inference. Even if perceptual beliefs are infallible, it is not clear
that they can infallibly ground empirical knowledge (even if my belief
that the table looks red to me is infallible, the inference to the
belief that the table actually is red might not be infallible). Modest
foundationalism does not require this link between perception and
reality to be so strong; our perception of a table being yellow is
adequate justification to believe that this is the case, even if it is
not infallible.
Reformed epistemology
is a form of modest foundationalism which takes religious beliefs as
basic because they are non-inferentially justified: their justification
arises from religious experience,
rather than prior beliefs. This takes a modest approach to
foundationalism – religious beliefs are not taken to be infallible, but
are assumed to be prima facie justified unless evidence arises to the contrary.
Internalism and externalism
Foundationalism can take internalist and externalist forms. Internalism requires that a believer's justification for a belief must be accessible to them for it to be justified. Foundationalist internalists have held that basic beliefs are justified by mental events
or states, such as experiences, that do not constitute beliefs.
Alternatively, basic beliefs may be justified by some special property
of the belief itself, such as its being self-evident or infallible. Externalism maintains that it is unnecessary for the means of justification of a belief to be accessible to the believer.
Reliabilism is an externalist foundationalist theory, initially proposed by Alvin Goldman,
which argues that a belief is justified if it is reliably produced,
meaning that it will be probably true. Goldman distinguished between two
kinds of justification for beliefs: belief-dependent and
belief-independent. A belief-dependent process uses prior beliefs to
produce new beliefs; a belief-independent process does not, using other
stimuli instead. Beliefs produced this way are justified because the
processes that cause them are reliable; this might be because we have
evolved to reach good conclusions when presented with sense-data, meaning the conclusions we draw from our senses are usually true.
Criticisms
Critics of foundationalism often argue that for a belief to be justified it must be supported by other beliefs; in Donald Davidson's phrase, "only a belief can be a reason for another belief". For instance, Wilfrid Sellars argued that non-doxastic mental states cannot be reasons, and so noninferential warrant cannot be derived from them. Similarly, critics of externalist foundationalism argue that only mental states or properties the believer is aware of could make a belief justified.
According to skepticism,
there are no beliefs that are so obviously certain that they require
support from no other beliefs. Even if one does not accept this very
strong claim, foundationalists have a problem with giving an
uncontroversial or principled account of which beliefs are self-evident or indubitable.
Postmodernists and post-structuralists such as Richard Rorty and Jacques Derrida
have attacked foundationalism on the grounds that the truth of a
statement or discourse is only verifiable in accordance with other
statements and discourses. Rorty in particular elaborates further on
this, claiming that the individual, the community, the human body as a
whole have a 'means by which they know the world' (this entails
language, culture, semiotic systems, mathematics, science etc.). In
order to verify particular means, or particular statements belonging to
certain means (e.g., the propositions of the natural sciences), a person
would have to 'step outside' the means and critique them neutrally, in
order to provide a foundation for adopting them. However, this is
impossible. The only way in which one can know the world is through the
means by which they know the world; a method cannot justify itself. This
argument can be seen as directly related to Wittgenstein's theory of language, drawing a parallel between postmodernism and late logical positivism that is united in critique of foundationalism.
Hitchens's razor is an epistemologicalrazor
(a general rule for rejecting certain knowledge claims) that states
"what can be asserted without evidence can also be dismissed without
evidence."The razor was created by and named after author and journalist Christopher Hitchens (1949–2011). It implies that the burden of proof
regarding the truthfulness of a claim lies with the one who makes the
claim; if this burden is not met, then the claim is unfounded, and its
opponents need not argue further in order to dismiss it. Hitchens used
this phrase specifically in the context of refuting religious belief.
Analysis
The dictum appears in Hitchens's 2007 book titled God Is Not Great: How Religion Poisons Everything. The term 'Hitchens's razor' itself was used by atheist blogger Rixaeton in December 2010, and popularised inter alia by evolutionary biologist and atheist activist Jerry Coyne after Hitchens died in December 2011.
Some pages earlier in God Is Not Great, Hitchens also invoked Occam's razor. Michael Kinsley noted in 2007 in The New York Times that Hitchens was rather fond of applying Occam's razor to religious claims, and according to The Wall Street Journal's
Jillian Melchior in 2017, the phrase "What can be asserted without
evidence can be dismissed without evidence" was "Christopher Hitchens's
variation of Occam's razor".
Hitchens's razor has also been called "a modern version" of the Latin proverb quod grātīs asseritur, grātīs negātur ("what is freely asserted can be freely deserted"), also rendered as "what is asserted without reason (or proof), may be denied without reason (or proof)", a saying attested no later than the 17th century. Another comparable saying is the legal principle attributed to the Roman juristJulius Paulus Prudentissimus (c. 2nd–3rd century CE), Ei incumbit probatio qui dicit, non qui negat—"Proof lies on he who asserts, not on he who denies". This principle has traditionally been connected to the presumption of innocence in English law, but in the 1980s philosopher Antony Flew argued that it was also an adequate preliminary axiom in debates about the existence of God,
claiming that "the presumption of atheism" was justified until a theist
could come up with good evidence in favour of the existence of a god.
Hitchens's razor has been presented alongside the Sagan standard ("Extraordinary claims require extraordinary evidence") as an example of evidentialism within the New Atheism movement.
Criticism
Academic
philosopher Michael V. Antony (2010) argued that despite the use of
Hitchens's razor to reject religious belief and to support atheism,
applying the razor to atheism itself would seem to imply that atheism is
epistemically unjustified. According to Antony, the New Atheists
(to whom Hitchens also belonged) invoke a number of special arguments
purporting to show that atheism can in fact be asserted without
evidence.
Philosopher C. Stephen Evans (2015) outlined some common Christian theological responses to the argument made by Hitchens, Richard Dawkins
and the other New Atheists that if religious belief is not based on
evidence, it is not reasonable and can thus be dismissed without
evidence. Characterising the New Atheists as evidentialists, Evans counted himself amongst the Reformed epistemologists together with Alvin Plantinga, who argued for a version of foundationalism,
namely: "belief in God can be reasonable even if the believer has no
arguments or propositional evidence on which the belief is based." The
idea is that all beliefs are based on other beliefs, and some
"foundational" or "basic beliefs" just need to be assumed to be true in
order to start somewhere, and it is fine to pick God as one of those
basic beliefs.
"Ei incumbit probatio qui dicit" redirects here. For burden of proof in law in general, see Burden of proof (law).
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact (a judge or a jury). If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.
The sixth-century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat—"Proof lies on him who asserts, not on him who denies". It is there attributed to the second and third century jurist Julius Paulus Prudentissimus. It was introduced in Roman criminal law by emperor Antoninus Pius.
According to Talmud,
"every man is innocent until proved guilty. Hence, the infliction of
unusual rigours on the accused must be delayed until his innocence has
been successfully challenged. Thus, in the early stages of the trial,
arguments in his defence are as elaborate as with any other man on
trial. Only when his guilt has become apparent were the solicitous
provisions that had been made to protect defendants waived".
Islamic law
The
presumption of innocence is fundamental to Islamic law where the
principle that the onus of proof is on the accuser or claimant is
strongly held, based on a hadith documented by Imam Nawawi. "Suspicion" is also highly condemned, this also from a hadith documented by Imam Nawawi as well as Imam Bukhari and Imam Muslim.
After the time of Muhammad, the fourth CaliphAli ibn Abi Talib has also been cited to say, "Avert the prescribed punishment by rejecting doubtful evidence."
Middle Ages in Europe
Western Europe
After the collapse of the Western Roman Empire, the West began to practice feudal law, which was a synthesis of aspects of Roman law as well as some Germanic
customs according to the new elite, including presumed guilt. For
instance, the accused could prove his innocence by having twelve people
swear that he could not have done what he was accused of. In practice,
this tended to favor the nobility over the lower classes, whose witnesses risked being seen as less credible.
Trials by ordeal were common from the 6th century until the early
13th century, and were known to continue into the 17th century in the
form of witch-hunts. Whilst common in early Germanic law, compurgation was formally adopted in Rome by Pope Innocent III in 1215 at the Fourth Lateran Council and trials by fire and water specifically were forbidden. This was during the period of development of the jus commune, the canon law of the Catholic Church influenced the common law during the medieval period
In the early 13th century, Louis IX of France banned all trials by ordeal and introduced the presumption of innocence to criminal procedures. It was during the seventh crusade that he had witnessed the presumption of innocence in practice by the ruling Muslims and sought to adopt and implement this law on his return to France. As a reformer, this and other legal and economic reforms led to him being the only canonized king of France.
Eastern Europe
Following the aforementioned Roman law of Justinian, who lived at the dawn of the medieval era, the Byzantine Empire generally continued along his legal code which includes presumption of innocence.[citation needed] This also influenced nearby states within its cultural sphere, such as Eastern Orthodox, Slavic principalities like Serbia.
Meaning
Sir William Garrow
coined the phrase "presumed innocent until proven guilty", insisting
that defendants' accusers and their evidence be thoroughly tested in
court.
"Presumption of innocence" serves to emphasize that the prosecution
has the obligation to prove each element of the offense beyond a
reasonable doubt (or some other level of proof depending on the criminal
justice system) and that the accused bears no burden of proof. This is often expressed in the phrase "presumed innocent until proven guilty", coined by the British barristerSir William Garrow (1760–1840) during a 1791 trial at the Old Bailey.
Garrow insisted that accusers be robustly tested in court. An objective
observer in the position of the juror must reasonably conclude that the
defendant almost certainly committed the crime. In 1935, in its judgment of Woolmington v Director of Public Prosecutions, the English Court of Appeal
would later describe this concept as being 'the golden thread' running
through the web of English criminal law. Garrow's statement was the
first formal articulation of this.
The presumption of innocence was originally expressed by the French cardinal and canonical juristJean Lemoine in the phrase "item quilbet presumitur innocens nisi probetur nocens (a person is presumed innocent until proven guilty)", based on the legal inference that most people are not criminals.
However, this referred not merely to the fact that the burden of proof
rests on the prosecution in a criminal case, but the protections which a
defendant should be given: prior notice of the accusation being made against them, the right of confrontation, right to counsel, etc. It is literally considered favorable evidence for the accused that automatically attaches at trial. It requires that the trier of fact, be it a juror or judge, begin with the presumption that the state is unable to support its assertion.
To ensure this legal protection is maintained, a set of three related
rules govern the procedure of criminal trials. The presumption means:
With respect to the critical facts of the case—whether the crime
charged was committed and whether the defendant was the person who
committed the crime—the state has the entire burden of proof.
With respect to the critical facts of the case, the defendant does
not have any burden of proof whatsoever. The defendant does not have to
testify, call witnesses or present any other evidence, and if the
defendant elects not to testify or present evidence, this decision
cannot be used against them.
The jury or judge is not to draw any negative inferences from the
fact the defendant has been charged with a crime and is present in court
and represented by an attorney. They must decide the case solely on
evidence presented during the trial.
It is better that ten guilty persons escape than that one innocent suffer.
The idea subsequently became a staple of legal thinking in Anglo-Saxon jurisdictions and continues to be a topic of debate.
This duty on the prosecution was famously referred to as the “golden thread” in the criminal law by Lord SankeyLC in Woolmington v DPP:
Throughout the web of the English
criminal law one golden thread is always to be seen—that it is the duty
of the prosecution to prove the prisoner's guilt subject to what I have
already said as to the defence of insanity and subject also to any
statutory exception...
Fundamental right
This right is considered important enough in modern democracies, constitutional monarchies and republics that many have explicitly included it in their legal codes and constitutions:
The Universal Declaration of Human Rights,
article 11, states: "Everyone charged with a penal offence has the
right to be presumed innocent until proven guilty according to law in a
public trial at which he has had all the guarantees necessary for his
defense."
The International Covenant on Civil and Political Rights,
art. 14, paragraph 2 states that "Everyone charged with a criminal
offence shall have the right to be presumed innocent until proved guilty
according to law." The presumption of innocence is also expressly
regulated in Art. 66 of the Rome Statute of the International Criminal Court,
according to which "Everyone shall be presumed innocent until proved
guilty before the Court in accordance with the applicable law."
The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe
says (art. 6.2): "Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law." This convention
has been adopted by treaty
and is binding on all Council of Europe members. Currently (and in any
foreseeable expansion of the EU) every country member of the European Union
is also member to the Council of Europe, so this stands for EU members
as a matter of course. Nevertheless, this assertion is iterated verbatim in Article 48 of the Charter of Fundamental Rights of the European Union.
Articles 8 (1) and 8 (2) (right to a fair trial), in conjunction
with Article 1 (1) (obligation to respect and ensure rights without
discrimination), of the American Convention on Human Rights make the Inter-American Court
to stress that "the presumption of innocence is a guiding principle in
criminal trials and a foundational standard for the assessment of the
evidence. Such assessment must be rational, objective, and impartial in
order to disprove the presumption of innocence and generate certainty
about criminal responsibility. ... The Court reiterated that, in
criminal proceedings, the State bears the burden of proof. The accused
is not obligated to affirmatively prove his innocence or to provide
exculpatory evidence. However, to provide counterevidence or exculpatory
evidence is a right that the defence may exercise in order to rebut the
charges, which in turn the accusing party bears the burden of
disproving".
In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms
states: "Any person charged with an offence has the right to be
presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal".
In the Colombian constitution, Title II, Chapter 1, Article 29 states that "Every person is presumed innocent until proven guilty according to the law".
In France, article 9 of the Declaration of the Rights of Man and of the Citizen of 1789, which has force as constitutional
law, begins: "Any man being presumed innocent until he has been
declared guilty ..." The Code of Criminal Procedure states in its
preliminary article that "any person suspected or prosecuted is presumed
innocent for as long as their guilt has not been established" and the jurors' oath repeats this assertion (article 304; note that only the most serious crimes are tried by jury in France). However, there exists a popular misconception that under French law, the accused is presumed guilty until proven innocent.
In Iran, Article 37 of the Constitution of the Islamic Republic of Iran
states: "Innocence is to be presumed, and no one is to be held guilty
of a charge unless his or her guilt has been established by a competent
court".
In Italy, the second paragraph of Article 27 of the Constitution states: "A defendant shall be considered not guilty until a final sentence has been passed."
In Romania, article 23 of the Constitution states that "any person shall be presumed innocent until found guilty by a final decision of the court".
The Constitution of Russia,
in article 49, states that "Everyone charged with a crime shall be
considered not guilty until his or her guilt has been proven in
conformity with the federal law and has been established by the valid
sentence of a court of law". It also states that "The defendant shall
not be obliged to prove his or her innocence" and "Any reasonable doubt
shall be interpreted in favor of the defendant".
In the South African Constitution, section 35(3)(h) of the Bill of Rights
states: "Every accused person has a right to a fair trial, which
includes the right to be presumed innocent, to remain silent, and not to
testify during the proceedings."
In New Zealand, the New Zealand Bill of Rights 1990
provides at section 25 (c) "Everyone who is charged with an offence
has, in relation to the determination of the charge, the following
minimum rights: (c) the right to be presumed innocent until proved
guilty according to law".
In the United Kingdom
changes have been made affecting this principle. Defendants' previous
convictions may in certain circumstances be revealed to juries. Although
the suspect is not compelled to answer questions after formal arrest,
failure to give information may now be prejudicial at trial. Statute law
also exists which provides for criminal penalties for failing to
decrypt data on request from the police. If the suspect is unwilling to
do so, it is an offence.
Citizens can therefore be convicted and imprisoned without any evidence
that the encrypted material was unlawful. Furthermore, in sexual
offence cases such as rape, where the sexual act has already been proved
beyond reasonable doubt, there are a limited number of circumstances
where the defendant has an obligation to adduce evidence that the
complainant consented to the sexual act, or that the defendant
reasonably believed that the complainant was consenting. These
circumstances include, for example, where the complainant was
unconscious, unlawfully detained, or subjected to violence.
Canada
In Canadian law, the presumption of innocence has been reinforced in certain instances. The Criminal Code previously contained numerous provisions according to which defences to certain offences were subject to a reverse onus: that is, if an accused wishes to make that defence, they had to prove the facts of the defence to a balance of probabilities,
rather than the Crown having to disprove the defence beyond a
reasonable doubt. This meant that an accused in some circumstances might
be convicted even if a reasonable doubt existed about their guilt. In several cases, various reverse onus provisions were found to violate the presumption of innocence provision of the Canadian Charter of Rights and Freedoms.
They were replaced with procedures in which the accused merely had to
demonstrate an "air of reality" to the proposed defence, following which
the burden shifted to the Crown to disprove the defence.
Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, received Royal Assent in December 2018. Among other things, it eliminated several reverse onus provisions from the Criminal Code, some of which had previously been found unconstitutional, and others pre-emptively in order to avoid further Charter challenges.
Much like the Bostock v. Clayton County decision, the Equality Act broadly defines sex discrimination to include sexual orientation and gender identity, adding "pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes". The bill also defines this to include the intersex community. The intended purpose of the act is to legally protect individuals from discrimination based on such.
While various similar bills have been proposed since the 1970s,
the modern version of the Equality Act was first proposed in the 114th United States Congress. During the 116th Congress, it passed the United States House of Representatives on May 17, 2019 in a bipartisan 236–173 vote. However, the United States Senate did not act upon the bill after receiving it; even if they had, then-President Donald Trump signaled that he would have vetoed it. On February 18, 2021, the act was reintroduced in the 117th Congress.
The House passed the act by a vote of 224 to 206 on February 25, 2021,
with support from three Republicans. The bill then moved on to the
Senate for consideration.
The
Equality Act would uniformly apply anti-LGBT discrimination law in the
United States. State anti-discrimination laws as of May 2019:
State
law prohibiting discrimination based on sexual orientation and gender
identity in public employment, private employment, housing, and
provision of goods and services
State
law prohibiting discrimination based on sexual orientation (but not
gender identity) in public employment, private employment, housing, and
provision of goods and services
State
law prohibiting discrimination based on sexual orientation and gender
identity in public and private employment, but not in other areas such
as housing and provision of goods and services
State law does not prohibit discrimination based on sexual orientation or gender identity. Some states have similar executive orders, but their scope is limited to only cover public state employees against discrimination.
As of 2020, 29 states had not outlawed anti-LGBT discrimination,
with members of the LGBT community being given little protection at a
national level and two-thirds of LGBT Americans in the United States
reported facing or having experienced discrimination in their personal
lives. The Equality Act seeks to legally protect individuals from such
discrimination, applying existing state anti-LGBT discrimination laws
nationwide.
The Equality Act seeks to incorporate protections against LGBT discrimination into the federal Civil Rights Act of 1964.
Specifically, it prohibits discrimination based on sex, sexual
orientation, gender identity, and intersex status in a wide variety of
areas including public accommodations and facilities, education,
federally funded programs, employment, housing, credit, and jury
service.
It also seeks to expand existing civil rights protections for people of color, women, and other minority groups by updating the definition of public accommodations to include places or establishments that provide:
Exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display
Goods, services, or programs
Transportation services
According to the text of the act as introduced in the 117th Congress,
discrimination based on sexual orientation or gender identity by
governments violates the Equal Protection Clause of the Fourteenth Amendment, saying:
Discrimination
by State and local governments on the basis of sexual orientation or
gender identity in employment, housing, and public accommodations, and
in programs and activities receiving Federal financial assistance,
violates the Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States. In many circumstances, such
discrimination also violates other constitutional rights such as those
of liberty and privacy under the due process clause of the Fourteenth
Amendment.
History
Early history (1970s–1990s)
The original Equality Act was developed by U.S. Representatives Bella Abzug (D-NY) and Ed Koch (D-NY) in 1974. The Equality Act of 1974 (H.R. 14752 of the 93rd Congress) sought to amend the Civil Rights Act of 1964 to include prohibition of discrimination on the basis of sex, sexual orientation, and marital status
in federally assisted programs, housing sales, rentals, financing, and
brokerage services. The bill authorized civil actions by the Attorney General of the United States
in cases of discrimination on account of sex, sexual orientation, or
marital status in public facilities and public education. On June 27,
1974, H.R. 14752 was referred to the House Committee on the Judiciary, but did not proceed to a vote in the full United States House of Representatives.
From 1994, the more narrow Employment Non-Discrimination Act
(ENDA) was introduced, but faced opposition over whether transgender
Americans would be protected. An expanded version of ENDA which included
both sexual orientation and changed sex to gender identity in its
protections passed the United States Senate in 2013, but did not advance in the House.
Bostock v. Clayton County, Georgia (2020)
On June 15, 2020, the United States Supreme Courtruled that Title VII of the Civil Rights Act of 1964
prohibits discrimination against gay and transgender people in
employment. LGBTQ rights advocates welcomed the ruling and reaffirmed
support for passage of the Equality Act, stating that the ruling only
covered employment, and in many states LGBTQ people still lack
non-discrimination protections in housing, public accommodations, public
education, federal funding, credit, and jury service which would be
covered under the Equality Act.
The ruling said that the Civil Rights Act protects "gay and
transgender" people in matters of employment but left the terms
undefined.
A Reuters/Ipsos
poll conducted in May/June 2019 found that most Americans do not know
that LGBT people lack federal protections. Only one-third of respondents
knew that such protections do not exist on the basis of transgender
identity, and only one-quarter knew that they don't exist on the basis
of lesbian, gay, and bisexual identity.
A nationwide and state-by-state poll on the issue conducted throughout 2017 by the Public Religion Research Institute as part of the annual American Values Atlas survey said that 70% of Americans, including a majority in every state, supported laws that would protect LGBT people against discrimination, while 23% opposed such laws, and 8% had no opinion.
A 2020 PRRI poll said 83% of Americans would favor such
anti-discrimination laws, and specifically regarding discrimination in
employment, housing, and public accommodations. 16% of Americans oppose
such laws. Support for such anti-discrimination laws was at 94% for Democrats, 85% for independents, and 68% for Republicans.
According to a 2021 PRRI survey, about 22% of Americans support
religious exemptions for business owners pertaining to
anti-discrimination law based on sexual orientation, while about 76% of
Americans oppose such exemptions.
A poll conducted by Quinnipiac University
in April 2019 found that 92% of American voters believed that employers
should not be allowed to fire someone based on their sexual orientation
or sexual identity, while only 6% believed that employers should be
allowed to do so. A wide consensus on this question was found among both
Democratic and Republican voters, as well as Independents, although
Democratic voters were slightly more likely to believe that this kind of
discrimination should be illegal, with only 1% of them believing that
employers should be allowed to fire someone based on their sexual
orientation or sexual identity.
Calling for the bill's passage in 2016, the Civil Rights icon John Lewis
said, "This legislation is what justice requires. This legislation is
what justice demands. And like the Supreme Court's recent decision, it
is long overdue ... We are a society committed to equal justice under
the law. ... We have fought too hard and too long against discrimination
based on race and color not to stand up against discrimination based on
sexual orientation and gender identity."
The National Taskforce to End Sexual and Domestic Violence and
over 250 anti-sexual assault organizations have condemned opponents'
attempts to portray transgender people as sexual predators and contends
it is untrue that protections for transgender people endanger women's
safety and privacy. The Taskforce's joint letter
was signed by over 250 survivor organizations in full support of full
and equal access for the transgender community, including in restrooms
and locker rooms.
The letter notes the states and 200+ municipalities that have
protected transgender people's access to facilities have not seen an
increase in sexual violence and public safety incidents due to
nondiscrimination laws. The letter also notes that anti-transgender
initiatives put transgender people at further risk of assault.
Religious organizations and registered charities that have given public support to the act include Advocates for Youth, and various Catholic leaders and lobbying organizations such as Father James Martin S.J., Network, and DignityUSA. Catholic theologian and nun Joan Chittister
released a statement saying that the Equality Act "must be passed, must
be extended, and must be lived if religion itself is to be true". The Interfaith Alliance
endorsed the Equality Act as part of "Faith for Equality", a coalition
which provided a letter signed by over 17,000 religious Americans to
Senator Chris Coons in support of the act.
Edith Guffey, a UCC minister and mother of a transgender, non-binary
child testified to Congress in support of the Equality Act, saying "We
should all be able to agree on this one thing, the law should treat all
our children, God's children, equally. All of our children deserve to be
treated with dignity and respect. Every single one of us would go to
the mat for our children. None of us wants them to be turned away or
discriminated against for any reason."
At a 2021 Senate hearing for the Equality Act, 16-year-old Stella
Keating became the first transgender teenager to testify before
Congress saying, "Right now, I could be denied medical care or be
evicted for simply being transgender in many states. ... What if I'm
offered a dream job in a state where I can be discriminated against?
Even if my employer is supportive, I still have to live somewhere. Eat
in restaurants. Have a doctor", she added. "This is the United States of
America. The country that I love. Every young person ... regardless of
who they are or who they love, should be able to be excited about their
future."
Opposition
Numerous political pundits and politicians have stated their opposition to the Equality Act at various times. Notable among these was Rep. Marjorie Taylor Greene, which caused a brief political feud between her and Rep. Marie Newman.
Greene had said in a speech that the proposed act "destroys God's
creation, ... completely annihilates women's rights and religious
freedoms", and "puts trans rights above women's rights".
Tucker Carlson called the Equality Act a "terrifying agenda that eliminates women". Candace Owens appeared on Carlson's Fox Newstalk show in the same segment and said about the Equality Act that Democrats "don't know what equality is".
Some single-issue women's groups have opposed the provision of
the bill which defines sex to include gender identity. They say this
endangers the "sex-based rights" of women and girls, including women's
sports and women-only spaces such as locker rooms, prisons, and
shelters. Among these groups has been the Women's Human Rights Campaign USA (WHRC USA), the Women's Liberation Front (WoLF), Feminists in Struggle (FiST), Standing for Women, and Save Women's Sports.
They oppose the bill unless it is amended to protect sex and not gender
identity. Both WHRC USA and FIST have proposed amendments to the act. Some of these organizations are funded by fundamentalist anti-LGBT hate groups (as designated by the SPLC) such as the Alliance Defending Freedom and have shifted messaging to sound more secular and feminist.
Georgia State University criminology professor Callie H. Burt published a paper in the June 2020 issue of Feminist Criminology
in which she examined the potential effects of the Equality Act on
women's rights. While saying the act is "laudable in its aims", Burt
lamented the lack of scrutiny and discussion by Democratic
representatives in Congress into the real consequences the act's
"imprecise language" would bring to women: "The result is the erosion of
females' provisions, which include sex-separated spaces (e.g., prisons,
locker rooms, shelters), opportunities and competitions (e.g., awards,
scholarships, sports), and events (e.g., meetings, groups, festivals)".
She also said, "I submit that the bill, in current form, fails to strike
a balance between the rights, needs, and interests of two marginalized
(and overlapping) groups—trans people and females—and instead
prioritizes the demands of trans people over the hard-won rights of
female people."
The Economist
stated in October 2020 that the act as written endangers the rights of
women in areas such as sports, where they would be at a physical
disadvantage having to compete against trans women, and in spaces
previously segregated by biological sex, such as public bathrooms and
prisons, stating that "parts of the bill appear to put the needs of
transgender people above those of women. This is because the act
redefines 'sex' in Title IX and other amendments of the Civil Rights Act
to include 'gender identity; rather than making transgenderism a
protected category of its own. Its definition of 'gender identity' is
fuzzy and appears to downplay the reality of sex."
Law professor Douglas Laycock told NPR that the law is "less necessary" now, after the Bostock decision, and that the bill "protects the rights of one side, but attempts to destroy the rights of the other side."
Some religious leaders oppose the bill for various reasons, saying for example that it would infringe on religious liberty.
On May 7, 2019, a coalition of Christian organizations sent a
letter to the House of Representatives to state opposition to the
Equality Act, which they said "undermines religious freedom, and
threatens charitable nonprofits and the people they serve, regulates
free speech, hinders quality health care, and endangers the privacy and
safety of women and girls." In addition to four committee chairs of the
U.S. Conference of Catholic Bishops, signers included leaders from the Christian Legal Society, the Center for Law and Religious Freedom, the Center for Public Justice, the National Association of Evangelicals, the Ethics & Religious Liberty Commission of the Southern Baptist Convention, the Lutheran Center for Religious Liberty (affiliated with the Lutheran Church-Missouri Synod), the Council of Christian Colleges and Universities, and the Institutional Religious Freedom Alliance.
Bill Donohue, president of the Catholic League for Religious and Civil Rights,
said that "The Equality Act is the most comprehensive assault on
religious liberty, the right to life, and privacy rights ever packaged
into one bill." Donohue also stated his concern that "Catholic hospitals
would no longer be allowed to govern as Catholic facilities,
threatening healthcare for everyone, especially the poor."
On May 16, 2019, Sister Carol Keehan, president of the Catholic Health Association
sent a letter to lawmakers in the House expressing concern that the
act, as written, would roll back religious liberty protections. "Federal
law has long recognized that certain services can present conflict for
some faith-based health care providers with religious or moral
objections to providing those services, and protected them from having
to do so. We are concerned that the Equality Act omits and could erode
or reduce those protections." The legislation, she said, "lacks
conscience protection language and precludes application of RFRA (Religious Freedom Restoration Act)."
On May 13, 2019, The Church of Jesus Christ of Latter-day Saints
released a statement that read in part, "The Equality Act now before
Congress is not balanced and does not meet the standard of fairness for
all. While providing extremely broad protections for LGBT rights, the
Equality Act provides no protections for religious freedom". In 2021, the LDS Church endorsed a competing bill, the Fairness for All Act.
The competing bill would add faith-based exemptions to
anti-discrimination law. Other than the LDS Church, its supporters have
included the Seventh-day Adventist Church and the Council for Christian Colleges & Universities.
The Heritage Foundation
has argued that the act would adversely affect five groups of people
(employers and workers; medical professionals; parents and children;
non-profit organizations and their volunteers; and women), and they
describe specific harms the Foundation believes each group would
experience from the act's passage.
The Trump Administration opposed the Equality Act. In August 2019,
the White House issued a statement, "The Trump Administration absolutely
opposes discrimination of any kind and supports the equal treatment of
all; however, the House-passed bill in its current form is filled with
poison pills that threaten to undermine parental and conscience rights."
President Biden and Vice President Harris
are vocal defenders of the Equality Act, issuing a statement from the
White House, "I applaud Congressman David Cicilline and the entire Congressional Equality Caucus
for introducing the Equality Act in the House of Representatives
yesterday, and I urge Congress to swiftly pass this historic
legislation. Every person should be treated with dignity and respect,
and this bill represents a critical step toward ensuring that America
lives up to our foundational values of equality and freedom for all."
In March 2022 President Biden called for the passage of the Equality Act during the State Of The Union. On the March 2022 Trans Day of Visibility,
the Biden administration announced that it was fighting for the passage
of the Equality Act to advance the civil rights of trans Americans.
Legislative activity
114th Congress
On July 23, 2015, Rep. David Cicilline (D-RI) introduced H.R. 3185, the Equality Act of 2015, in the United States House of Representatives. The bill was supported by PresidentBarack Obama. In January 2016, Rep. Bob Dold (R-IL) became the first Republican Representative to co-sponsor the bill. Rep. Ileana Ros-Lehtinen (R-FL) became the second Republican to co-sponsor the bill in September 2016. Jenniffer González (R-PR) also co-sponsored the bill.
On July 23, 2015, Sen. Jeff Merkley (D-OR) introduced S. 1858, the Equality Act of 2015, in the United States Senate. In January 2016, Sen. Mark Kirk
(R-IL) became the first and only Republican Senator to co-sponsor the
bill. All Democrats and Independents cosponsored the bill with the
exception of Heidi Heitkamp (D-ND), Joe Donnelly (D-IN), Joe Manchin (D-WV) and Jon Tester (D-MT).
115th Congress
On May 2, 2017, Rep. David Cicilline (D-RI) introduced H.R. 2282, the Equality Act of 2017, in the United States House of Representatives. Rep. Ileana Ros-Lehtinen (R-FL) was the only Republican to co-sponsor the bill from the outset, with Rep.
Scott Taylor (R-VA) becoming the second Republican to co-sponsor the bill on May 26, 2017.
On May 2, 2017, Sen. Jeff Merkley
(D-OR) introduced S. 1006, the Equality Act of 2017, in the United
States Senate. All Democrats and Independents cosponsored the bill with
the exceptions of Joe Donnelly (D-IN) and Joe Manchin (D-WV).
116th Congress
On March 13, 2019, Rep. David Cicilline
(D-RI) introduced H.R. 5, the Equality Act of 2019, in the United
States House of Representatives. The bill is sponsored by 237 Democrats
and 3 Republicans. On May 1, 2019, the bill passed the House Judiciary Committee by a vote of 22-10, with all Democratic members of the committee voting in favor and all Republican members against.
A vote by the full House was held on May 17, 2019; the vote carried
with 236 votes for and 173 against. Eight Republicans voted in favor of
the bill and no Democrats opposed it.
On March 13, 2019, Sen. Jeff Merkley
(D-OR) introduced S. 788, the Equality Act of 2019, in the United
States Senate. The bill was sponsored by 43 Democrats, 2 Independents,
and 1 Republican.
117th Congress
On February 18, 2021, H.R. 5 was reintroduced to the House of
Representatives. It was passed by the House for the second time on
February 25, 2021, and now moves on to the Senate. Notable speeches were heard by, among others, Nancy Pelosi, Marjorie Taylor Greene, and Marie Newman. Among Republican Representatives, only Tom Reed, John Katko, and Brian Fitzpatrick voted in favor; fewer than in the previous Congress. Mario Díaz-Balart and Elise Stefanik previously voted in favor but now voted against.
On February 23, 2021, a companion bill, S. 393, was introduced in
the Senate. It was referred to the Judiciary Committee, where it awaits
debate. It has, as of February 26, 2021, 48 co-sponsors.
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