Innocent until proven guilty

[The State]

There is a common misconception that under our criminal justice system the accused "is innocent until proven guilty". The correct principle is the accused is "presumed innocent until proven guilty". That's not just a semantic difference.

History 101 (Part Two)

But first, something completely different.

Since a critic of my first History 101 post said I needed more humor and sarcasm, here goes.

First, the humor: A horse walks into a bar. The bartender says to the horse, "Hey buddy, why the long face?"

Second, the sarcasm: Now that I've appeased the critics, on with the stuff that requires some intellectual ability to appreciate!

Having left Socrates after his conviction by a jury in Athens, we jump forward to the next millenium, circa 360 a.d. in the Roman province of Gaul, where Numerius, the former governor of Gallia Narbonensis, was accused of embezzlement. He denied the charge, and made an unprecedented demand - that the accusation be proven!

This was problematic for the presiding Judge Delfidius, because proof of Numerius' guilt was lacking. At a loss for what to do, Delfidius appealed for guidance to Roman provincial governor Julian (nephew of the Roman Emperor Constantine). Delfidius protested that if the charges had to be proved against an accused, rather than the accused having to prove his innocence, that no one could ever be convicted of a crime. Julian proclaimed that a simple accusation was not enough, that the charge must be proven before there can be a conviction. Thus the concept of the government's burden of proof was introduced into criminal jurisprudence. (Works of Amianus Marcellinus Book 18, Loeb Library)

To understand the difference between the presumption of innocence, and actually being innocent may seem like an excercise in zen reasoning, but there is a more practical way of conceptualizing it. Think of James Watt!

Watt is credited with having "invented" the steam engine. However the more accurate credit is that he "discovered" it. The principle of the steam engine existed prior to Watt - in fact prior to the first arthropod emerging from the primordial ooze. Water boiling and turning to steam is not an invention - it's a physical phenomenon that occurs when a given set of facts exist, to wit: water and sufficient heat!

The guilt of an accused is no different. Guilt of a crime exists based on the facts of an act, and those facts either exist at the time of the event, or not - just as water is either hot enough to turn to steam, or it isn't. The difference in criminal law is we have created a fiction that says the water may have turned to steam, but we will pretend it hasn't until a jury says so - and they can't say so until the government actually shows them the steam!
That is different that saying the steam doesn't exist at all.

(If you don't like the steam engine metaphor, and prefer a zen approach, try this. If a man is alone in the woods where no woman can hear him, and he says something - is he still wrong?)

So while an accused must be presumed to be innocent (and may be in fact), that presumption is refutable, and doesn't necessarily mean she is innocent of the criminal act. However, before the law will acknowledge the existane of that crime (the metaphorical steam), the government must present evidence of it.

You have Numerius of Gaul to thank for that.

Morituri tu salutamus

The StateWhat is the name of your state?

[Happy Trails]

What are you trying to achieve by writing this?

[AHA]

To be honest, I didn't even make it past the first couple of lines.
Mud, mud, mud a plenty**************..

[Mister Darcy]

I have read both of your history postings and find them to be interesting though somewhat flawed.

Your analogy of Watt for instance. True, no one can invent the scientific principle of steam, but one can apply that principle in a new way. You could say the same thing about computers which are nothing more than the fancy application of electricity.

Also, I don't believe that a court can ever find anyone to be innocent or presume their innocence. All they can do is find that a person is guilty or not guilty.

[The State]

Originally Posted by Happy Trails

What are you trying to achieve by writing this?

That's a fair question.

I have been following this forum for some time now, and reached a couple conclusions. First, most of the questions reflect a fundamental misunderstanding of the basics of how the system works. There are two ways of approaching that.

The simple approach is to give short answers. However, my experience in teaching the law to non-lawyers is that this is minimally useful, if at all, because all you can do is formulate an answer specific to a limited fact scenario. Unfortunately, even a slight change in the facts can have a dramatic effect on what the correct answer should be.

So I have found it's more effective to teach general concepts, which if learned can be applied to any given fact pattern. An analogy would be that it is better to teach a man to fish, so he can feed himself forever, than to simply give him a fish to satisfy his immediate hunger.

People grasp concepts better if they understand the derivation. Say something is so, and the listener's natural instinct is to say why is it so. So I include why. Often the why has a historical context - which happens to be an area where I've devoted considerable study.

My intent, besides dispensing advice to some of the questions, is to also educate any who wish to learn something about the law. Sort of a free criminal law school class for the masses. What is appearing here is an abbreviated text of a series of lectures given in one of my classes. For those who don't want to learn anything, they can simply ignore my threads.

The second observation I've made about this forum is that a lot of the advice given is simplistic, thus essentially useless. Some of the advice is simply wrong. I wonder at the qualifications of some who give the advice. That's why I put my abbreviated resume' up front when I introduced myself as a new member, so everyone can judge for themselves if my qualifications justify their reliance on my advice. The responses I got to that post suggest that actually being qualified to speak authoritatively on the subject matter of this forum is a novel approach.

Given the number of BS artists, and wannabees who hang out on such forums, and the internet in general, advice given by anyone who won't disclose their credentials (and who won't let them be verified) should be taken with a grain of salt. I don't just talk the talk - I walk the walk.

I also inlcuded some of my interests so people are aware of my biases, and factor that into my advice. For example, my NRA membership will cause some people to disregard anything I say, while others will treat it as gospel. But at least the have frame of reference to go by.


The State

[gawm]

I surely did not finish reading this one but anyone who has been through the system accused of a serious crime can tell you it is the other way around. Guilty until proven innocent! If not they would let everybody bond out on a bond they can afford.

[Happy Trails]

Originally Posted by The State

That's a fair question.

I have been following this forum for some time now, and reached a couple conclusions. First, most of the questions reflect a fundamental misunderstanding of the basics of how the system works. There are two ways of approaching that.

The simple approach is to give short answers. However, my experience in teaching the law to non-lawyers is that this is minimally useful, if at all, because all you can do is formulate an answer specific to a limited fact scenario. Unfortunately, even a slight change in the facts can have a dramatic effect on what the correct answer should be.

So I have found it's more effective to teach general concepts, which if learned can be applied to any given fact pattern. An analogy would be that it is better to teach a man to fish, so he can feed himself forever, than to simply give him a fish to satisfy his immediate hunger.

People grasp concepts better if they understand the derivation. Say something is so, and the listener's natural instinct is to say why is it so. So I include why. Often the why has a historical context - which happens to be an area where I've devoted considerable study.

My intent, besides dispensing advice to some of the questions, is to also educate any who wish to learn something about the law. Sort of a free criminal law school class for the masses. What is appearing here is an abbreviated text of a series of lectures given in one of my classes. For those who don't want to learn anything, they can simply ignore my threads.

The second observation I've made about this forum is that a lot of the advice given is simplistic, thus essentially useless. Some of the advice is simply wrong. I wonder at the qualifications of some who give the advice. That's why I put my abbreviated resume' up front when I introduced myself as a new member, so everyone can judge for themselves if my qualifications justify their reliance on my advice. The responses I got to that post suggest that actually being qualified to speak authoritatively on the subject matter of this forum is a novel approach.

Given the number of BS artists, and wannabees who hang out on such forums, and the internet in general, advice given by anyone who won't disclose their credentials (and who won't let them be verified) should be taken with a grain of salt. I don't just talk the talk - I walk the walk.

I also inlcuded some of my interests so people are aware of my biases, and factor that into my advice. For example, my NRA membership will cause some people to disregard anything I say, while others will treat it as gospel. But at least the have frame of reference to go by.


The State

There was a reason I asked the question. I was curious if you understood how this board works. Your threads will be buried in the archives, but if you feel as though you are achieving something, knock yourself out. The majority of posters, if not all, that come to the board aren't looking for a history lesson.

Just a suggestion, maybe your postings would be more suited in your own blog.


[url]http://forum.freeadvice.com/showthread.php?t=194067[/url]

[Kane]

Nice posts.

[Shay-Pari'e]

Originally Posted by The State

That's a fair question.

I have been following this forum for some time now, and reached a couple conclusions. First, most of the questions reflect a fundamental misunderstanding of the basics of how the system works. There are two ways of approaching that.

The simple approach is to give short answers. However, my experience in teaching the law to non-lawyers is that this is minimally useful, if at all, because all you can do is formulate an answer specific to a limited fact scenario. Unfortunately, even a slight change in the facts can have a dramatic effect on what the correct answer should be.

So I have found it's more effective to teach general concepts, which if learned can be applied to any given fact pattern. An analogy would be that it is better to teach a man to fish, so he can feed himself forever, than to simply give him a fish to satisfy his immediate hunger.

People grasp concepts better if they understand the derivation. Say something is so, and the listener's natural instinct is to say why is it so. So I include why. Often the why has a historical context - which happens to be an area where I've devoted considerable study.

My intent, besides dispensing advice to some of the questions, is to also educate any who wish to learn something about the law. Sort of a free criminal law school class for the masses. What is appearing here is an abbreviated text of a series of lectures given in one of my classes. For those who don't want to learn anything, they can simply ignore my threads.

The second observation I've made about this forum is that a lot of the advice given is simplistic, thus essentially useless. Some of the advice is simply wrong. I wonder at the qualifications of some who give the advice. That's why I put my abbreviated resume' up front when I introduced myself as a new member, so everyone can judge for themselves if my qualifications justify their reliance on my advice. The responses I got to that post suggest that actually being qualified to speak authoritatively on the subject matter of this forum is a novel approach.

Given the number of BS artists, and wannabees who hang out on such forums, and the internet in general, advice given by anyone who won't disclose their credentials (and who won't let them be verified) should be taken with a grain of salt. I don't just talk the talk - I walk the walk.

I also inlcuded some of my interests so people are aware of my biases, and factor that into my advice. For example, my NRA membership will cause some people to disregard anything I say, while others will treat it as gospel. But at least the have frame of reference to go by.


The State

WOW!

Did you pull this out of a cereal box? Dude, you are on the internet. Your credentials can't be proven, whatever the hell they are.

After reading your long winded post, all I can think, is that you need to take your meds.

[albatross]

You write that the contributor's on this forum misunderstand how the system works and that the advice given is usually simplistic. The system works according to how much money you have: plain and simple. You are possibly innocent if you got money, and most likely guilty if you dont. In some cases a poor fella will get lucky with a public attorney that gives a crap and provides more than adequate representation, but that is rare. So in practice "innocent until proven guilty" applies to damn few in this country. I know because my own criminal history is hellish and I have spent the majority of my adult life in prison. And I was guilty of every crime I was ever charged with. I deserved my punishment.
But in prison, over a 20 year time span, I did know a "handful" of inmates who really were innocent. ALL OF THEM got screwed because of poor public attorney representation. Every guy I know who had money to pay for an attorney got some great plea bargains.
Mabey you are very smart about some of the technical aspects of the law, I dont know. But you dont know a damn thing about "innocent until proven guilty" except what you have read in books. The reality is much different.

Originally Posted by Shay-Pari'e

WOW!

Did you pull this out of a cereal box? Dude, you are on the internet. Your credentials can't be proven, whatever the hell they are.

After reading your long winded post, all I can think, is that you need to take your meds.

Or maybe he is just a little excited about his sermon he is giving on Sunday and needed to test it out!

[garrula lingua]

Albatross:
Good points.
'Justice' does differ, depending on the chair you sit in: defendant, judge, prosecutor, victim, defense attorney.
It also depends on what color you are, and MOST IMPORTANT: if you have BBIG BUCKS.

I've seen private attys screw their clients; I've seen PDs screw their clients.
I've seen both types do fantastic jobs & go to the wall for clients.

People/attorneys differ - there are great attys/PDs and some, not.

But money does buy 'Justice' in our great country, alas.

[albatross]

Yeah, thanks. And when all is said and done, better here than in some other screwed up country, huh? Atleast in the USA you have the "opportunity" for justice. God bless the USA.