Presumption of Innocence in Criminal Trials

The presumption of innocence is not an empty phrase. It is the most important guarantee in Spanish criminal proceedings and operates at every stage of the process. It means that no person may be convicted unless the prosecution has proved their guilt beyond reasonable doubt.

Therefore, the accused does not have to prove their innocence: it is the prosecution that must rebut that presumption with sufficient, lawful evidence produced with all procedural guarantees.

What it means and where it is recognised

The presumption of innocence is a fundamental right recognised in Article 24.2 of the Spanish Constitution. It forms part of the right to a trial with all due guarantees. Its essential content is twofold: on the one hand, it places on the prosecution the burden of proving the criminal facts; on the other, it requires that such evidence be sufficient to rebut the innocence of the accused. If the incriminating evidence is insufficient, contradictory or unlawful, the conviction cannot stand.

This right does not operate only at the moment judgment is delivered. It applies throughout the entire criminal process: from the investigation stage to the oral trial. It also has a relevant extra-procedural dimension: no public authority may treat a person as guilty before there is a final conviction. Therefore, public statements anticipating the guilt of a person under investigation may breach this constitutional guarantee.

The presumption of innocence is also recognised in Article 6.2 of the European Convention on Human Rights, which allows a convicted person to apply to the European Court of Human Rights if they consider that a Spanish judgment has violated it. Consequently, its protection does not end within the domestic legal system.

When the presumption is breached

A breach of the presumption of innocence is not always obvious. Sometimes, a conviction is based on insufficient incriminating evidence or on circumstantial evidence that does not reach the standard of reasonable doubt. On other occasions, evidence exists but has been obtained unlawfully: a telephone interception without judicial authorisation, a home search without the required guarantees, or a statement obtained without legal assistance.

A particularly frequent situation is a conviction based exclusively on the statement of the victim or of a single witness, without any other corroborating evidence. In these cases, the case law of the Spanish Supreme Court requires the statement to meet certain standards of credibility, persistence and absence of improper motives. However, the courts do not always apply those standards with the necessary rigour.

Another common scenario involves convictions based on circumstantial evidence. Circumstantial evidence — that is, evidence that infers guilt from proven peripheral facts — is valid under Spanish law. However, in order to rebut the presumption of innocence, the indications must be multiple, consistent and sufficiently conclusive. A single indication, however strong it may appear, is not sufficient on its own.

Unlawful evidence and its effect

The exclusionary rule for unlawful evidence is one of the most direct manifestations of the presumption of innocence. When evidence is obtained in breach of fundamental rights — such as the inviolability of the home, the secrecy of communications or the right not to incriminate oneself — it cannot be used to support a conviction.

In addition, nullity extends to evidence derived from that unlawful act, pursuant to Article 11.1 of the Organic Law on the Judiciary. Therefore, the defence must examine the origin of each item of evidence.

How a criminal lawyer defends it

Defending the presumption of innocence requires a strategy built from the very beginning of the proceedings. It is not enough to invoke the right at trial. The defence must identify, already during the investigation stage, what incriminating evidence exists, how it was obtained and whether it contains defects that allow it to be challenged or declared null before the investigating judge.

During the oral trial, the defence may challenge the sufficiency of the prosecution evidence in the closing submissions. It may also attack the credibility of prosecution witnesses, point out contradictions in their statements and show that the circumstantial evidence does not form a logical chain excluding other reasonable hypotheses. If a conviction is nevertheless handed down, breach of the presumption of innocence may form the basis of an appeal or cassation appeal.

At Fechenbach Abogados, David Fechenbach Marcos, ICAM No. 122770, works with the presumption of innocence as a central axis of criminal defence at trial. This involves reviewing the lawfulness of each item of evidence, assessing the strength of the indications and building the closing submissions around the insufficiency or unlawfulness of the prosecution evidence. The firm operates in Madrid, Ibiza and Cádiz.

However, this work is only effective if it begins at the investigation stage. Opportunities to challenge evidence are subject to specific procedural deadlines. Unlawful evidence that is not challenged in time may become part of the proceedings without the possibility of later exclusion.

If the defence does not act rigorously

A defence that does not actively build the presumption of innocence leaves the field open to the prosecution. If the lawyer does not challenge the incriminating evidence during the investigation, does not object to unlawful evidence at the appropriate procedural moment and does not deliver a solid closing argument, the court hears only one version. Reasonable doubt does not arise on its own: it must be generated, reasoned and presented in a way that the court cannot ignore.

Moreover, if the judgment at first instance is a conviction, the possibility of appealing on the basis of a breach of the presumption of innocence depends on the defence having placed the relevant objections on record during the trial. An argument not raised at trial can hardly be introduced later on appeal. Therefore, the defence strategy must be coherent and continuous from the outset.

The time limit for lodging an appeal against judgments delivered by the Provincial Court is ten working days from notification, pursuant to Article 790.1 of the Spanish Criminal Procedure Act. This is a narrow timeframe. A defence that has not prepared the appeal during the trial will have very little time to build it properly afterwards.

Contact Fechenbach Abogados

If you are under investigation or have been convicted and believe that the prosecution evidence is insufficient, Fechenbach Abogados can analyse your case.

We provide assistance in Madrid, Ibiza and Cádiz. Contact us without obligation at fechenbach.es.