Opinion, by Michael Royster

Rio de Janeiro, Brazil – The decision by Brazil’s Supreme Court (STF) to permit judges to incarcerate criminals whose convictions have been affirmed by a court of appeals, has been excoriated as violative of the “presumption of innocence”. The Curmudgeon submits that the critics have got it entirely wrong, and that the prior position—convicted criminals can remain free as long as their appeals last—is rather a “presumption of guilt”.

The Curmudgeon, aka Michael Royster.
The Curmudgeon, aka Michael Royster.

The prior position first presumes that lower court judges ALWAYS convict innocent defendants. It then presumes that three-judge panels of appellate courts ALSO err, and affirm wrongful convictions.

Put another way, both trial court and appellate court judges are presumed to be guilty of judging wrongly.

There is statistical evidence to support the presumption at the trial court level, because most defendants do not have adequate counsel; however, there is almost no evidence to support the presumption at the appellate court level.

This “presumption of guilt” is, lamentably, pervasive throughout Brazilian culture, where presumptions of illegality affect the daily lives of all citizens.

A few examples: (a) all signatures are presumed to be forgeries, unless a notary public has “recognized” them; (b) all photocopies are presumed to be faked or altered, unless a notary public has “authenticated” them; (c) all documents from abroad are presumed to be invalid unless they have been “attested” by a Brazilian consular official; (d) all translations into Portuguese are presumed to be inaccurate unless performed by a “sworn” translator.

Want more? All Brazilian individuals and companies are presumed to have violated Brazil’s criminal, tax, social security and labor laws—hence the widespread requirement to obtain a “certidão negativa” from a public notary before doing business with the government, or registering a deed of purchase.

The presumption of guilt is, in the end, a direct consequence of the absence of the rule of law in Brazil. The recent STF decision raises a glimmer of hope.

The Curmudgeon lives in hope, but is presumed guilty of writing dismal Smidgens.

2 COMMENTS

  1. Michael, I agree. Nice job! And even your certidao negativa may not make you not guilty. The bureaucracy maintains and reinforces the culture of desconfianca.

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