Image (C)Daniel Butcher 2007

The presumption of innocence is the principle that a defendant is considered innocent until proven guilty. The burden of proof is on the prosecution, which has to collect and present evidence that establishes guilt beyond a reasonable doubt. The defendant does not have to prove anything. This principle is a cornerstone of justice in most advanced countries.

Except in Italy

Soon after Amanda Knox and Raffaele Sollecito were arrested, Judy Bachrach wrote an article for Vanity Fair magazine. She quoted ecclesiastical judge Count Neri Capponi who informed her that things would not go Knox’s way. “Our system stems from the Inquisition and also from medieval law,” he explained. What this means, in effect, is that justice in Italy “is based on the supremacy of the prosecution. This nullifies the fact—written in our constitution by the way—that you’re innocent until proven guilty.”

The presumption of innocence was destroyed for Amanda Knox and Raffaele Sollecito when the Interior Minister of Italy, Giuliano Amato stated at a news conference, “It’s an ugly story in which people which this girl had in her home, friends, tried to force her into relations which she didn’t want.”

Coerced illegal interrogation

The arrests followed coerced illegal, unrecorded interrogations at which the suspects were denied lawyers and in Knox’s case no independent translator was provided. No credible witnesses or reliable forensic evidence were ever produced that implicated either defendant. The DNA evidence that the prosecution relied on was discredited by leading Italian and international experts. One explanation for this ‘dodgy DNA’ is contamination in an unsuitable laboratory, though the possibility of fraud cannot be ruled out.

This means that the entire case for many people was seen through the prism of ‘fruit of the poisoned tree’: the belief that nobody who is innocent would ever say anything incorrect, or that an exhausted twenty year old girl could never be intimidated and frightened by a lengthy abusive interrogation into imagining anything untrue, even as a ‘confused vision’.  The meme that ‘innocent people never lie’ has been disproved so many times now; so many have been found guilty of crimes that were subsequently proved to have been committed by someone else, that it is surely time that this assumption was put to bed.

Confirmation bias blinds courts

A shocking number of miscarriages of justice can be traced back to coercive interrogations. Once they have taken place, the phenomenon of confirmation bias takes over and blinds journalists, lawyers, judges and juries to the real facts of the case. Although defendants frequently assert that the interrogations were coerced and withdraw the statements that emerged from them, the fact that they have taken place has the effect of destroying the presumption of innocence.

In the Kercher case, Knox and Sollecito’s interrogations and arrests, followed by the confident assertions of the police and Interior Minister Amato that the case was closed, emboldened the media of Italy and the UK, which had two years to compound the character assassination of the defendants before the first guilty verdict at the end of 2009.

This effect of confirmation bias and subsequent character assassination following a coerced, illegal interrogation, can be so profound that even trained legal professionals, start their examination of a case after the point of arrest and work forwards from there.

Prosecutors can be corrupt

The principle of presumption of innocence must require anyone who is passing judgment on a case to look at the crime and its aftermath dispassionately and they should emphatically not assume that law officers are always free of confirmation bias or that all interrogations are rigorous, honest and fairly carried out. Investigators are human too and they can be subject to the same flaws and biases as anyone else. Tunnel vision often sets them on the wrong track and exculpatory evidence is then ignored or destroyed.

A retired English barrister recently studied the Kercher case and after examining court documents in considerable detail, published a twenty-six part exposition. Unfortunately, in his reading of the case, he trusted the police and prosecuting authorities to have carried out an honest investigation and he made no allowance for the effect that confirmation bias had on prosecution lawyers, witnesses and most tragically, Miss Kercher’s family.  He assumed that statements made by Knox during her interrogation were made in the absence of any improper pressure. This assumption undermines his whole thesis.

It is time for Italy to fess up

In the Kercher case, the destruction of the presumption of innocence was the crucial first step that led to what quickly became the highest profile judicial tragedy this century. In some jurisdictions, reforms have changed the way interrogations are carried out. Recordings must be made; lawyers must be provided. In Italy these sensible practices that can protect the rights of the innocent are frequently ignored or sidestepped. The results are tragic and expensive both in damaged innocent lives and misled victims’ families – they can also allow the guilty to remain free to commit more crimes.

It is time for Italy to drag itself into the twenty first century. Amanda Knox and Raffaele Sollecito are not the only people who have suffered because they were denied the presumption of innocence. The remedies exist. For God’s sake use them.