But surely someones guilt or innocense is an absolute thing based on what the did or did not do. Surely we should presume someone is innocent until their is a fair trial that either proves their guilt or fails to prove their guilt. But the persons innocense is dependant on what they did, not what a falable court decides.
A person who murders someone is just as guilty before their trial as after their conviction. Even if the trial somehow fails the person if they did in fact commit murder is still guilty of that murder, failure to prove the fact beyond a doubt simply means that he/she is believed innocent, and should be treated as such. It does not somehow make an actual murderer into an innocent, it just makes them a person who got away with a crime.
Equally a person who did not kill another, but gets blaimed and for some reason justice is misscaried so that he/she ends up being declaired guilty of the crime, remains just as innocent befor the trial as after it.
So we clearly have presumed innocence not necessarily equal to innocence.
Is it wrong to hold the view that someone is guilty despite the lack of a trial? And is it libelous to state that opinion?
You will note that every news media outlet refers to an “alleged” act when a person has not yet been tried and convicted. I suspect that is to protect against charges of libel/slander.
They err to the conservative, too. They will say “alleged” even if there police witnessed an act and made an arrest on the spot.
But if you say, “I believe. . .” or “In my opinion. . .” it might be that it is no longer libelous since you aren’t claiming a fact. Probably lots of those statements around the time of the O.J. trial. Everybody’s got a right to an opinion.
The point is that the law says you can’t punish someone until they’ve been convicted, like keep them in jail for 5 years waiting for a trial. Or put them in a prison camp on an island 90 miles of the coast of Florida without seeing a lawyer. . . .oh, wait a minute. . . .
It’s the essence of the liberal (ie classic liberal) system of criminal justice. Think about it this way:
Only people who are guilty of committing crimes should be punished.
The definition of “guilty” in our liberal justice system is “Someone who has received a fair trial and received a sentence of Guilty from this trial”.
Therefore, anyone who does not receive the fair trial and Guilty sentence from such a trial is not guilty, that is, innocent.
There can’t be any half-way state between “Guilty” and “Innocent” in such a system. You’re fairly convicted or you’re not.
If there was such a thing as a “Semi-Guilty” status, how it be defined? Who would do the defining? What would result from such a status? You’d have to make major conceptual changes to our justice system (I’m an Aussie, I presume you’re from a Western nation).
hm, IANAL, nolo contendere sort of fits the bill…a joking way of referring to it is ‘i’m bot saying i am not guilty, but would it help if i promised not to do it again?’ … it really means not contested. you are not pleading innocent, but you are not contending or opposing the charge.
And you can be guilty, but not prosecuted because they can’t find enough evidence, or the prosecutor feels that it is not in the best interest of the state to prosecute for whatever reason.
A presumption is not an assumption; it’s a starting point.
According to Great Debates protocol, for example, if you make an assertion here, the onus is on you to prove it if challenged, not on your opponents to disprove it (though often they charitably will do so – with relish! :eek: )
The presumption is that alleged facts presented in support of a position must be documented.
In American jurisprudence, the citizenry is free to go about their lawful pursuits until and unless charged with and convicted of a crime on reasonable grounds. Each of us is presumed to be innocent of all wrongdoing.
When a complaint is filed, a policeman makes an arrest, etc., he is calling that innocence into question. But he is not, and cannot, himself assign guilt to you.
Therefore, the prosecuting attorney is obliged to prove beyond a reasonable doubt that you did in fact commit the crime of which you are accused. It’s not, theoretically, your obligation to prove your innocence – though if he has a reasonable case against you, you are well advised to be able to rebut it.
In other words, the “presumption of innocence” furnishes a starting point for the adversarial system to work from. Smith is accused of grand mopery, 2nd degree. Smith is presumed innocent of this, and if the prosecution should by some bizarre circumstance say that it has no evidence to present to demonstrate Smith’s guilt, the judge is required to immediately acquit the defendant. In point of fact, what happens is that the prosecution endeavors to make a case which will convince the jury (or at least a judge) that Smith is indeed guilty of the crime with which he’s charged. If he makes that case, and the defense is unable to rebut it, then Smith is found guilty. But if he does not, the presumption of innocence holds.
Consider the logical proof in which a given proposition is to be proven – but cannot be directly proven. So a presumption of the antithetical case is made, a logical chain constructed which leads to a fallacious conclusion, such as 1 = 0, or X is not-X, and the proposition to be proven is therefore demonstrated by the inherent falsity of its antithesis.
A similar process is at work here – while culprit X may be in fact guilty as hell, his innocence is presumed, and the conclusion that he in fact did commit the crime and is guilty of it must be proven, to rebut that presumption.
I’m getting a little tired of this argument. Here is what the U.S. Constitution has to say on the subject (emphasis mine):
Amendment 5
“No person shall be held to answer for a capital, or otherwise infamous crime, …except in cases arising in the land or naval forces…, when in actual service in time of War or public danger;…without due process of law;…”
Amendment 14
All persons born or naturalized in the United States, … are citizens of the United States… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The 5th Amendment specifically makes an exception to due process for crimes that take place “in time of War or public danger”. The 14th Amendment makes the point that due process is guaranteed for all “citizens of the United States”
Since the people imprisoned at Guantanamo Bay are not citizens of the United States, and their alleged crimes took place during a time of war, the Constitution itself indicates that it does not apply.
Basically, the U.S. Constitution is an agreement between the U.S. Government and the States, and spells out the “basic” laws governing this country. The Constitution does not guarantee the same treatment for non-U.S. citizens as it does for citizens. Actions taken by those non-U.S. citizens in foreign countries are entirely beyond the scope of the Constitution.
If you want to argue that the prisoners at Guantanamo Bay are not being treated fairly, then by all means do so. But don’t use the United States Constitution as a basis for that argument, because it does not apply here. Perhaps the Geneva Convention (or perhaps not, I am not terribly conversant with the Geneva Convention), but not the Constitution.
Plankton, “presumption of innocence” is NOT exclusively a legal artifact of the US constitutional system. Though not universal, it IS also present in various traditions of both Common and Code Law, so bringing up that particular issue is not necessarily meant to be a claim that the US Constitution must apply (though many of those who bring it up may indeed be doing so).
In any case, as pointed out before, the Presumption of Innocence is that the default setting is that you’re not guilty of some crime, and the State has to produce some sort of evidence that you are in order to try you and convict you. Realistically, specific circumstances such as what jurisdiction you’re in when the charge is brought determine if the quantum of evidence is tiny or huge and how much evidence is considered “beyond doubt”, so in some countries’ courts IUPG means innocent unless you can be proved guilty, in some other country’s courts it means innocent [only] until [you WILL be] proven guilty.
The presumption of innocense serves a social function as well as a legal one. We live in a society where the handling of criminal justice comes from the government, and where we have worked at great length to get rid of vigilantes, lynch mobs, etc… Although the presumption of innocense until proven guilty is a legal principle, teaching it, using it, and upholding it encourages individuals to not try “taking the law into their own hands”.
I’m afraid you’re misreading both of these provisions. First, the 14th Amendment has no application to the debate over the Gitmo prisoners, since it only applies to the states, not to the federal government. The purpose of the 14th Amendment was to ensure states comply with due process guarantees. It has no direct application to the federal government.
The federal government is covered by the 5th Amendment, which you’ve quoted rather selectively. It reads:
When you read the entire amendment, you see that the parts you’ve quoted don’t create a general exception from due process during “time of war or public danger.” Instead, the passages you point to simply create exceptions to the general right to be tried only on indictment by grand jury: soldiers in the land or naval forces do not have a right to indictment by grand jury, and state militia members do not have a right to indicitment when in actual service in time of war or public danger. In other words, the exception you’re pointing to permits military courts of justice that aren’t founded on the indictment by grand jury.
These exceptions don’t apply to the right not to be deprived of life, liberty, or property, withough due process of law. That is a right that applies directly to the federal government. There is an issue whether it applies extra-territorially, to Gitmo, which is what the Supreme Court is currently considering. However, it’s not the case that due process just doesn’t apply during “war or public danger”, as you assert.
Here’s an extract from FindLaw that summarises this point (footnotes omitted):
Consider also the injustice that would be inherent in the case opposite of the presumption of innocence: presumption of guilt. You are arrested, charged with a crime, and have to prove your innocence. Failure to do so automatically results in your conviction. This really stacks the deck against the accused, but has been the case in some places at some times in history.
Not so fast. Let’s look at the Fifth Amendment – in its entirety – and then address the concerns:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Now address the Fifth Amendment correctly by separating it into its clauses:
[ul]
[li]No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;[/li][li]nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;[/li][li]nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;[/li][li]nor shall private property be taken for public use, without just compensation.[/li][/ul]
They are not dependent clauses. Each stands on its own. There is no exception to due process in times of war as you claim.
However, the contentitious issue is whether due process applies to all persons under the jurisdiction of the US Constitution.
In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Court said in essence “the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.” Source: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=339&invol=763
Now look at the Fourteenth Amendment – with respect to the relevant Section in its entirety:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now correctly separate each self-standing clause:
[ul]
[li]All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.[/li][li]No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;[/li][li]nor shall any State deprive any person of life, liberty, or property, without due process of law;[/li][li]nor deny to any person within its jurisdiction the equal protection of the laws.[/li][/ul]
The 14th Amendment applies the Fifth Amendment, among others, to the States. Since we are already discussing issues at the federal level, you comment is incorrect and does not apply. On the contrary, the Fifth Amendment does not restrict itself to citizens of the United States, but instead uses the all-encompassing “persons.”
However, as mentioned above the contentious issue is whether these “persons” are subject to the protections of the Constitution.
