Presumption of innocence

The concept of presumption of innocence is to the effect that every person is regarded as innocent until properly convicted by a court of law. The term properly according to Fletcher involves compliancy with the rules of evidence and criminal procedure. In this section therefore we shall look into the different dimensions of the legality principle as it applies before the pretrial process.

The right to personal freedom and security of persons is secured under the Fifth Amendment but such rights can be restricted pursuant to the provisions of criminal procedure laws. The question that however follows is what may constitute a lawful arrest. For an arrest to be lawful it must be one with a warrant and in the event that it is without a warrant, such arrest must have been properly authorized in terms of statutory provisions authorizing arrest, such person arrested must be informed of the reason of his arrest .

Subject to the right against self incrimination and the right to silence, is the exercise of the common law power to conduct interrogations interception and establishment of bodily features by the police. In the course of such interrogative contrary to the principle of self incrimination is the right accorded to the police officers to arrest any body who refuses to give his identity particularly as to name, address when asked to do so . However in the course of performing this function they are not entitled to extract confessions .

In the course of such investigations, investigative agencies require powers to search and seize persons and property of persons. Most criminal and penal laws provide for this right by investigative officers even though it is contrary to the constitutional provisions of the right to property for privacy. Such right is therefore granted as an exception to the fundamental rights like investigations, searches and seizures can be both with and without warrants.

The courts may issue warrants for search and seizure of anything suspected of being there in which is required for investigation because it’s suspected to be anything upon with or in respect of which an offense has been committed or it’s anything which is necessary for the conduct of the investigation


Macro Haran & S. Dijstra (2005) Expert Judgment versus Public opinion “evidence from Eurovision Song Contest. ’ Journal of Cultural Economies, Springer, Vol. 29(1) pages 50-78 Federal Rules of Evidence Gershman L. B. Burdening Garland M. N. “An overview of Relevance and Hearsay: A nine Step analytical guide