Re: Justice & punishment II

Warrl kyree Tale'sedrin (
Tue, 24 Mar 1998 23:32:00 +0000

> From: "den Otter" <>

> Warrl kyree Tale'sedrin <> wrote:
> >
> > > From: "den Otter" <>
> >
> > > GBurch1 <> wrote:
> > >
> > > > I'm sure my opinion should be suspect, as this image doesn't seem to
> > > > include a role for lawyers
> > >
> > > Actually, it _does_ include a role for lawyers ["full legal assistance but only
> > > limited appeal possibilities,"] although they would be less powerful than
> > > they are now, just like most of the other members of the justice system.
> > > If one would be accused of a crime, he could hire as many people to *prove
> > > his innocence* as he pleased/could afford. The role of the lawyer would
> > > in fact be streamlined: he must present sufficient hard evidence to prove
> > > that his client didn't commit the crime(s) he's been accused of. No more,
> > > no less.
> >
> > Guilty until proven innocent? Are you sure that this is the standard
> > you want to be ruled under?
> Well, don't all (western) justice systems work like that: the prosecution
> builds a case with evidence etc, and it's up to the lawyers to prove that
> this is crap and that in fact you're innocent.

That is not the methodology in England or the US or Canada; I
suspect it is not the methodology in former English colonies
generally. I won't comment on other countries because I don't have
much information.

In England, Canada, and the US, it is up to the prosecutor to prove
BEYOND A REASONABLE DOUBT that you are guilty. In the US under
current law, any person charged with a criminal offense has a right
to a jury trial, and a jury verdict in a criminal trial must be
unanimous. (If it isn't, it is legally as if the trial never
happened. The prosecutor gets to decide if they can make a better
case in front of a different jury -- not likely to try if the
majority of the jury was voting for acquittal.)

You don't have to prove you are innocent.

If you can show that the prosecutor's facts are incorrect, the
prosecution will probably fail (unless your showing also supports the
prosecutor's basic claim -- "your honor, I didn't shoot the victim
with that pistol, I used a different one.").

If you can show that the prosecutor's facts are incomplete, and
provide additional facts that show you are merely not particularly
likely to be guilty (which is not the same as proving that you are
innocent), the prosecution will probably fail.

If you can show that the method by which the prosecutor acquired his
facts is flawed, or that the source is for some reason unreliable,
the prosecution may well fail depending on just how serious the flaws
are -- even if you never claim that any specific fact in
the prosecution's case is actually false.

> I really see no difference.
> The "presumed innocent until proven quilty" thing may sound o.k, but
> it's nonsense of course. If the servants of justice really thought you were
> innocent they wouldn't have arrested you in the first place, now would
> they? They don't call them "suspects" for nothing.

It's a balancing act, and it takes place in the courts, not in the
police station. Saying "innocent until proven guilty" is overstating
the case a bit, perhaps: if the court truly held the accused to be
strictly innocent, it would order his immediate release without bail
pending verdict.

On the other hand, if the prosecution presents no case at all, the
defense wins. If the defense presents no case at all, the
prosecution must still present a case that the jury finds not merely
credible, but true beyond a reasonable doubt, or the defense wins.

Once charges are brought against a person, if the prosecution delays
things unduly the defense can have the case dismissed (effectively an
automatic acquittal) on that basis; but if the defense delays things
unduly, there will NEVER be an automatic conviction.

If the court finds the defendant guilty, the defendant can appeal.
If the court finds the defendant "not guilty" (there is no verdict of
"innocent" in US courts), it's over, the defendant can never be
compelled to face the same criminal charge for the same alleged
crime, not even if he confesses in court immediately after the case.

English courts, I understand, have three basic verdicts they can
deliver: "guilty", "not guilty", and "not proven"; the latter amounts
to "we think he's probably guilty, but the prosecutor didn't prove
it; take another try if you like." I don't know if I like the latter
option or not.

I know I don't like the requirement for unanimous verdicts. A 5/6
majority should be sufficient for a guilty verdict, or a simple
majority for a not-guilty verdict. (However, in capital crimes, the
death penalty *should* *not* be an option unless the verdict was

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