by Kelly John Walker
George Santos was arrested Wednesday, May 10 by the Department of Justice (DOJ) and charged with seven counts of wire fraud, three counts of money laundering, one count of theft of public funds and two counts of lying on congressional financial forms.
Obviously, he’s guilty, right?
Not so fast…
Presumed Innocence is Foundational
The presumption of innocence is enshrined in common law systems going back to the Code of Hammurabi. This legal maxim applies to anyone charged with a crime, ensuring that the defendant is treated as innocent until they are proven guilty “beyond a reasonable doubt” in a court of law. Prosecutors must prove a defendant’s guilt rather than a defendant having to prove their innocence.
In other words, no one is obliged to go to court to prove they’re innocent. Rather, they have the opportunity to dismantle the prosecution’s allegations—they are even entitled to any exculpatory evidence the prosecution may have.
The presumption of innocence is a fundamental right recognized in various documents like The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
English Common Law—from which U.S. law was birthed—swung from a presumption of guilt to the fundamental principle that one is considered innocent until proven guilty in the 19th Century. While trial by jury was established in 1219 by King Henry III, trial by combat remained an option in English law until 1819.
Trial by Ordeal
In medieval times, trial by ordeal was common.
According to Harvard Law School Professor, Elizabeth Papp Kamali, “It’s referred to as the judicium Dei, the judgment of God. The two methods used most typically in England were trial by cold water and trial by hot iron. In trial by cold water, a person would be dunked into a cistern. If they sank, they would be declared innocent, because the water had accepted them. If they floated, they would be declared guilty. In trial by hot iron, the priest would heat an iron, and at the appropriate point in the service, the accused would grasp the hot iron, walk a certain number of paces, and put it back down. The hand would be bandaged, and then three days later, the hand would be examined to see, not if the person…