The Straight Dope

Go Back   Straight Dope Message Board > Main > General Questions

Reply
 
Thread Tools Display Modes
  #1  
Old 07-08-2011, 11:42 AM
bordelond bordelond is offline
Guest
 
Join Date: Dec 1999
Are there any judicial systems in which "guilty until proven innocent" is codified?

About 20 years ago, I saw a documentary about Japanese prisons. One of the things mentioned was that in Japan, the accused in a criminal trial are considered guilty until proven innocent.

Now, I don't know. The narrator may have meant how things worked in fact, and not in law. Still, it made me wonder -- do any nations have something actually on the books that states that the accused bears the burden of proof in a criminal trial?

I understand that such a codification runs directly counter to the Universal Declaration of Human Rights. So I'm thinking that if such a written law exists, it would be in nations under widely-recognized repressive regimes such as North Korea and Myanmar. If it were actually true of Japan, I'd be surprised.

Last edited by bordelond; 07-08-2011 at 11:43 AM..
Reply With Quote
Advertisements  
  #2  
Old 07-08-2011, 12:01 PM
robert_columbia robert_columbia is offline
Guest
 
Join Date: Oct 2009
I remember reading somewhere that the Japanese criminal justice system is heavily inclined toward coercing confessions and then using the confession against the defendant. I don't actually know the answer to the question, sorry.
Reply With Quote
  #3  
Old 07-08-2011, 12:05 PM
Shakester Shakester is offline
Guest
 
Join Date: Dec 2008
No, Japan's legal system has the same presumption of innocence as every other civilised place.

You can just look these things up on Wiki for yourself, you know.

As for evil rogue states that ignore due process and the presumption of innocence when it suits them to do so, yes, that seems to be true.
Reply With Quote
  #4  
Old 07-08-2011, 12:12 PM
carnivorousplant carnivorousplant is offline
Charter Member
 
Join Date: Apr 2000
Location: Central Arkansas
Posts: 40,626
Quote:
Originally Posted by Shakester View Post

You can just look these things up on Wiki for yourself, you know.
But then other posters couldn't demonstrate how cool they are by correcting him.
Reply With Quote
  #5  
Old 07-08-2011, 12:50 PM
HeyHomie HeyHomie is offline
Charter Member
 
Join Date: Sep 1999
Location: Springfield, IL
Posts: 8,237
Quote:
Originally Posted by Shakester View Post
You can just look these things up on Wiki for yourself, you know.
In the OP's defense, he/she was using Japan as an example, but asking about other nations in general.
Reply With Quote
  #6  
Old 07-08-2011, 01:21 PM
bordelond bordelond is offline
Guest
 
Join Date: Dec 1999
Quote:
Originally Posted by Shakester View Post
You can just look these things up on Wiki for yourself, you know.
For Japan, yes. But not for all nations.
Reply With Quote
  #7  
Old 07-08-2011, 01:26 PM
bordelond bordelond is offline
Guest
 
Join Date: Dec 1999
Quote:
Originally Posted by Shakester View Post
As for evil rogue states that ignore due process and the presumption of innocence when it suits them to do so ...
This is not codified, however.

Also, not necessarily thinking about judicial systems that ignore due process. The accused may very well be granted due process, and with vigor. However (in our hypothetical), once in court, the letter of the law required the accused to prove their innocence.
Reply With Quote
  #8  
Old 07-08-2011, 01:28 PM
Colibri Colibri is offline
SD Curator of Critters
Moderator
 
Join Date: Oct 2000
Location: Panama
Posts: 25,251
Quote:
Originally Posted by Shakester View Post
You can just look these things up on Wiki for yourself, you know.
[Moderator Note]

The question is considerably broader than just the situation in Japan. So the snark is unwarranted.

Quote:
As for evil rogue states that ignore due process and the presumption of innocence when it suits them to do so, yes, that seems to be true.
Political jabs are not allowed in GQ. These remarks are out of place here. No warning issued, but do not do this again.

Colibri
General Questions Moderator

Last edited by Colibri; 07-08-2011 at 01:28 PM..
Reply With Quote
  #9  
Old 07-08-2011, 05:01 PM
RealityChuck RealityChuck is offline
Charter Member
 
Join Date: Apr 1999
Location: Schenectady, NY, USA
Posts: 35,354
The old Soviet Union did not have a specific presumption of innocence, but rather a clause in their laws that said, in effect, "the fact that the prosecutor is bringing these charges does not necessarily mean the defendant is guilty."

In other words, not innocent until proven guilty; probably guilty but the jury could decide to rule he was innocent.
Reply With Quote
  #10  
Old 07-08-2011, 05:49 PM
carnivorousplant carnivorousplant is offline
Charter Member
 
Join Date: Apr 2000
Location: Central Arkansas
Posts: 40,626
Quote:
Originally Posted by RealityChuck View Post
In other words, not innocent until proven guilty; probably guilty but the jury could decide to rule he was innocent.
Didn't they have a week or so to keep you isolated and beat a confession out of you?
Reply With Quote
  #11  
Old 07-08-2011, 06:45 PM
RealityChuck RealityChuck is offline
Charter Member
 
Join Date: Apr 1999
Location: Schenectady, NY, USA
Posts: 35,354
Quote:
Originally Posted by carnivorousplant View Post
Didn't they have a week or so to keep you isolated and beat a confession out of you?
They weren't dumb enough to write that down in their constitution. They wanted to be able to argue about how their system was superior.

The rules didn't apply to political crimes, of course. They were turned over to the KGB (or whatever it was called at that time -- they changed their name several times) who dealt with it their own way.

The Soviet constitution was filled with little loopholes like that. For instance, they required a secret ballot in all elections. However, they did not require that people had to vote secretly. So the communist party members would go to the polling place, stand out in the middle and say, "I don't need to vote in secret! I'm voting Communist all the way!" and mark their ballot for all to see. Then another party member would do the same thing. And another. And then, someone shows up an wants to go into a booth to vote secretly. You can bet his name was taken down.
Reply With Quote
  #12  
Old 07-08-2011, 06:49 PM
Uncertain Uncertain is offline
Guest
 
Join Date: Oct 2007
There was a really bad Star Trek TNG episode where some planet they're visiting has a "you must prove your innocence" system. I'm not even sure how that would work. Who has to prove their innocence of what. Somebody would have to make the determination to accuse.
Reply With Quote
  #13  
Old 07-08-2011, 07:05 PM
alphaboi867 alphaboi867 is offline
Member
 
Join Date: Feb 2005
Location: the Keystone State
Posts: 11,200
Quote:
Originally Posted by RealityChuck View Post
The old Soviet Union did not have a specific presumption of innocence, but rather a clause in their laws that said, in effect, "the fact that the prosecutor is bringing these charges does not necessarily mean the defendant is guilty."

In other words, not innocent until proven guilty; probably guilty but the jury could decide to rule he was innocent.
There were no juries in the Soviet Union (IIRC the jury system in modern Russia is still in the experimental phase). Minor crimes were tried before a single judge. Serious crimes were tried before a judge and two "People's Assesors". The assesors were laypersons who were politically reliable (but not nessisarily Party members) chosen by the local soviet to serve part-time for a 2 year term. In theory both acting together could overule the judge.

Quote:
Originally Posted by Uncertain View Post
There was a really bad Star Trek TNG episode where some planet they're visiting has a "you must prove your innocence" system. I'm not even sure how that would work. Who has to prove their innocence of what. Somebody would have to make the determination to accuse.
Was that the one with the Ayran aerobics instructers that punished every single crime in a randomly chosen zone with death on the spot (& wanted to execute Wesley for breaking a greenhouse playing ball)?
__________________
No Gods, No Masters
Reply With Quote
  #14  
Old 07-08-2011, 08:08 PM
md2000 md2000 is offline
Guest
 
Join Date: Feb 2009
IIRC the Napoleonic system, common in many European countries, has the presumption of innocence. But, the accused is required to testify and answer questions form the prosecution and the judge. It is more of an inquisition like a congressional hearing, looking for "the truth", than an impartial judge hearing 2 sides. The only protection is that the accused cannot be charged with perjury based on their testimony. The assumption was that a guilty person would say anytihng to get off.

See: http://en.wikipedia.org/wiki/Inquisitorial_system
Reply With Quote
  #15  
Old 07-08-2011, 09:33 PM
carnivorousplant carnivorousplant is offline
Charter Member
 
Join Date: Apr 2000
Location: Central Arkansas
Posts: 40,626
[QUOTE=md2000;14002162The only protection is that the accused cannot be charged with perjury based on their testimony. The assumption was that a guilty person would say anytihng to get off.

[/QUOTE]

Then why bother to ask him?
Reply With Quote
  #16  
Old 07-08-2011, 09:53 PM
The Man In Black The Man In Black is offline
Guest
 
Join Date: Aug 2006
Quote:
Originally Posted by alphaboi867 View Post
There were no juries in the Soviet Union (IIRC the jury system in modern Russia is still in the experimental phase). Minor crimes were tried before a single judge. Serious crimes were tried before a judge and two "People's Assesors". The assesors were laypersons who were politically reliable (but not nessisarily Party members) chosen by the local soviet to serve part-time for a 2 year term. In theory both acting together could overule the judge.



Was that the one with the Ayran aerobics instructers that punished every single crime in a randomly chosen zone with death on the spot (& wanted to execute Wesley for breaking a greenhouse playing ball)?
No, it was a different one. I think I remember it said the Cardassian's system was guilty till proven innocent.

But too bad the planet of blue eyed blond people didn't carry out the sentence on Wesley before the others showed up.
Reply With Quote
  #17  
Old 07-08-2011, 11:12 PM
Captain Amazing Captain Amazing is offline
Member
 
Join Date: Oct 1999
Posts: 23,052
Quote:
Originally Posted by The Man In Black View Post
No, it was a different one. I think I remember it said the Cardassian's system was guilty till proven innocent.
I think it was a Deep Space 9 episode. I think the logic the Cardassians used is that since it would be a mistake to arrest and try an innocent man, and by definition, the Cardassian government can't make mistakes, if someone is arrested, he must be guilty, and the purpose of a trial is for the accused to confess his guilt and thereby publicly reaffirm the infallibility and majesty of the state.
Reply With Quote
  #18  
Old 07-09-2011, 10:09 AM
md2000 md2000 is offline
Guest
 
Join Date: Feb 2009
Quote:
Originally Posted by carnivorousplant View Post
Then why bother to ask him?
Because then he has to say something. Most lies have obvious holes to poke through. Since the purpose is "to find the facts" at least the defendant's version is on the record. Since the court can cross-examine the defendant, there is ample opportunity to determine how their version matches other testimony and evidence.

If the person is going to claim someone else did it, for example, they will have to testify and make the accusation, which then could become evidence for another person's trial.

I presume there is some sort of measure, like our preliminary hearings, that determines there is enough evidence so charges simple don't become a fishing expedition, a way to force someone to explain themselves. Although - the USA has grand juries for that.
Reply With Quote
  #19  
Old 07-09-2011, 04:12 PM
Capitaine Zombie Capitaine Zombie is offline
Guest
 
Join Date: Sep 2010
Quote:
Originally Posted by md2000 View Post
IIRC the Napoleonic system, common in many European countries, has the presumption of innocence. But, the accused is required to testify and answer questions form the prosecution and the judge. It is more of an inquisition like a congressional hearing, looking for "the truth", than an impartial judge hearing 2 sides. The only protection is that the accused cannot be charged with perjury based on their testimony. The assumption was that a guilty person would say anytihng to get off.

See: http://en.wikipedia.org/wiki/Inquisitorial_system
I guess you must have meant inquiry rather than inquisition.

And, the judge is supposed to be impartial, the difference with the US system is that the judge is not a passive referee, and can take the lead in the inquiry (in fact we used to have judges whose job was not to sit in court but to conduct the investigation). Remember that the judge's goal is to discover the truth, not letting two parties with vested interests tell their stories and then go Solomon on it.
As it is the difference in philosphy between the two systems has little bearing on the upholding of the presumption of innocence.

Last edited by Capitaine Zombie; 07-09-2011 at 04:14 PM.. Reason: overruled
Reply With Quote
  #20  
Old 07-09-2011, 04:17 PM
ElvisL1ves ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: New England
Posts: 31,854
There have been worse formal systems in the past - in revolutionary France under the Jacobins, and in Renaissance Venice, the governments were so completely totalitarian that it was not legal or even possible to offer a defense to prove one's innocence, and there was therefore no need for a trial.

Last edited by ElvisL1ves; 07-09-2011 at 04:18 PM..
Reply With Quote
  #21  
Old 07-10-2011, 08:53 AM
Bisected8 Bisected8 is offline
Guest
 
Join Date: Jun 2009
I've heard a "factoid" (in the most accurate sense of the word) that Scotland technically has a guilty until proven innocent clause for some crimes (I'm not sure how they do it specifically in Scotland, but the British system is structure in such a way that laws stay on the books even when they wouldn't be enforced).
Reply With Quote
  #22  
Old 07-10-2011, 09:40 AM
Peter Morris Peter Morris is online now
Charter Member
 
Join Date: Apr 2003
Location: ___\o/___(\___
Posts: 9,115
Matthew Hopkins' witch trials, Salem, and the Spanish Inquisition.


(Please no Monty Python jokes. Too obvious)
Reply With Quote
  #23  
Old 07-10-2011, 03:57 PM
alphaboi867 alphaboi867 is offline
Member
 
Join Date: Feb 2005
Location: the Keystone State
Posts: 11,200
Quote:
Originally Posted by Captain Amazing View Post
I think it was a Deep Space 9 episode. I think the logic the Cardassians used is that since it would be a mistake to arrest and try an innocent man, and by definition, the Cardassian government can't make mistakes, if someone is arrested, he must be guilty, and the purpose of a trial is for the accused to confess his guilt and thereby publicly reaffirm the infallibility and majesty of the state.
I remember that. The Cardassian government even assigned one of the most prominant defence attorneys in the Cardassian Union to Miles O'Brien (the sole purpose of a defence attorney being to help the accused come up with the most moving and dramatic confession possible). After the long trial in Cardassian history (2 days) Mile was found not guilty and his lawyer was afraid his career was destroyed (also he might have been in fear for his life).

Quote:
There have been worse formal systems in the past - in revolutionary France under the Jacobins, and in Renaissance Venice, the governments were so completely totalitarian that it was not legal or even possible to offer a defense to prove one's innocence, and there was therefore no need for a trial.
Or the Volksgerichtshof in Germany. Defence lawyers were present, but not allowed to speak in court or given the chance to communicate with their nominal clients. Even the prosecutors just sat there while the presiding judge layed out charges and pronounced sentence. Judge-President Roland Freisler had a habit of getting so carried away that the technicians recording the trials had to ask him to town it done because they were having problems getting usuable audio.
Reply With Quote
  #24  
Old 07-10-2011, 07:15 PM
CookingWithGas CookingWithGas is offline
Charter Member
 
Join Date: Mar 1999
Location: Tysons Corner, VA, USA
Posts: 9,659
According to the US Consulate in Tijuana, "For an accused person, one of the most critical differences is that under Mexican criminal law, the accused is essentially considered guilty until proven innocent." They do not elaborate on this, but you can find it on their web site. Start on http://tijuana.usconsulate.gov/citizen_services.html. There is a link on the right nav menu labeled "Mexico Criminal Justice System-PDF" that will up a reasonably small PDF file.
Reply With Quote
  #25  
Old 07-10-2011, 07:24 PM
robert_columbia robert_columbia is offline
Guest
 
Join Date: Oct 2009
Quote:
Originally Posted by Captain Amazing View Post
I think it was a Deep Space 9 episode. I think the logic the Cardassians used is that since it would be a mistake to arrest and try an innocent man, and by definition, the Cardassian government can't make mistakes, if someone is arrested, he must be guilty, and the purpose of a trial is for the accused to confess his guilt and thereby publicly reaffirm the infallibility and majesty of the state.
I remember that one of the points of a Cardassian trial was to help the defendant come to a full understanding of his (predetermined) guilt. And, the sentence was also decided before the trial started. Sisko notably was able to convince the Cardassian authorities to give Thomas Riker a life sentence rather than the assumedly default death sentence for his crimes against Cardassia. Remember he was also guilty of crimes against the Federation too.
Reply With Quote
  #26  
Old 07-10-2011, 08:03 PM
mac_bolan00 mac_bolan00 is offline
BANNED
 
Join Date: Apr 2011
Posts: 1,767
would it matter if there was (sufficient) due process in the justice system?
Reply With Quote
  #27  
Old 07-11-2011, 04:46 AM
constanze constanze is offline
Guest
 
Join Date: Aug 2006
Quote:
Originally Posted by robert_columbia View Post
I remember reading somewhere that the Japanese criminal justice system is heavily inclined toward coercing confessions and then using the confession against the defendant. I don't actually know the answer to the question, sorry.
Yes, that's the accusation: the Japanese police has an incredibly high number of confessions which are apparently obtained by holdings suspects far longer than 48 hours without sleep. (The old KGB method in other words).

If these coerced / false confessions are then used in "normal" trials, it doesn't help the accused much if the trial itself is proper and on presumption of innocence, he will still be damned on his confession.
Reply With Quote
  #28  
Old 07-11-2011, 04:53 AM
constanze constanze is offline
Guest
 
Join Date: Aug 2006
Quote:
Originally Posted by Peter Morris View Post
Matthew Hopkins' witch trials, Salem, and the Spanish Inquisition.
Not a court in the normal sense, but the HUAC would also fall under this.

Last edited by constanze; 07-11-2011 at 04:54 AM..
Reply With Quote
  #29  
Old 07-11-2011, 05:25 AM
medicated medicated is offline
Guest
 
Join Date: Jan 2011
In some situations, English defamation law does this. A defamatory statement is presumed to be false unless demonstrated to be true.

I know there's been a strong effort to change this recently, so my information might be out of date.
Reply With Quote
  #30  
Old 07-11-2011, 06:04 AM
clairobscur clairobscur is offline
Charter Member
 
Join Date: Aug 2001
Location: Paris
Posts: 13,969
Quote:
Originally Posted by carnivorousplant View Post
Didn't they have a week or so to keep you isolated and beat a confession out of you?

Remember that the Soviet Union had regular criminals too : thieves, murderers, etc... What happenned to dissidents probably wasn't representative of your run of the mill trial.
Reply With Quote
  #31  
Old 07-11-2011, 06:14 AM
ruadh ruadh is online now
Guest
 
Join Date: May 1999
Quote:
Originally Posted by medicated View Post
In some situations, English defamation law does this. A defamatory statement is presumed to be false unless demonstrated to be true.

I know there's been a strong effort to change this recently, so my information might be out of date.
It's still the case in a number of jurisdictions that a defendant/respondent in a defamation case who claims the defence of truth has the burden of proving it. France is one such jurisdiction, which I thought was kind of ironic given all the hooha there about the treatment of DSK in the US system.

Defences generally can be kind of weird on the burden of proof issue. Obviously it depends where you are but here in Ireland, for example, if you claim the defence of insanity you have the burden of proving it but if you claim automatism or duress the prosecution has to prove they don't apply. There's also a common law thing called the peculiar knowledge principle which may apply in limited cases where the defendant is the only party who could have known something, but that doesn't arise very often.

It's also possible for statute law to provide particular circumstances where, once a fact is established by the prosecution, it will lead to a particular conclusion unless the defendant can prove that conclusion isn't warranted. For example, a public official receives gifts from a lobbyist; this may lead to a presumption of corruption unless the defendant can prove the gift was innocently given. These laws are often challenged on the basis of undermining the presumption of innocence, but they may be upheld if the court if satisfied that the statute makes it easy enough for innocence to be shown.
Reply With Quote
  #32  
Old 07-11-2011, 06:36 AM
clairobscur clairobscur is offline
Charter Member
 
Join Date: Aug 2001
Location: Paris
Posts: 13,969
Quote:
Originally Posted by md2000 View Post
IIRC the Napoleonic system, common in many European countries, has the presumption of innocence. But, the accused is required to testify and answer questions form the prosecution and the judge. It is more of an inquisition like a congressional hearing, looking for "the truth", than an impartial judge hearing 2 sides. The only protection is that the accused cannot be charged with perjury based on their testimony. The assumption was that a guilty person would say anytihng to get off.

As you said, a french trial looks more like a debate between the parties. Contrarily to the common law system, the presiding judge is the main actor. Basically, questions may be asked to the accused at any time by anyone of the participants. Judge, prosecutor, accused's lawyer, victim's lawyer..In fact direct exchanges between the accused and the witnesses aren't uncommon. The acccused can also speak spontaneously.

I don't believe he's *required* to say anything, even though I guess that staying silent might be poorly perceived. In any case, he can't "testify", strictly speaking ( take an oath like a witness would). In fact he's forbiden to do so (there's a famous criminal case during which, prompted by his lawyer, one of the accused shouted "I SWEAR THAT BLAH BLAH BLAH..HONOR OF A FORMER SOLDIER.... BLAH BLAH...." which caused problems, especially because the lawyer was the instigator). This because if he was allowed to take an oath any accused who wouldn't do so would become suspect. That's, sort of, a protection against self-incrimination. That's why he can't commit a perjury, whether or not he tells the truth. He didn't state he would tell it to begin with.
Reply With Quote
  #33  
Old 07-11-2011, 06:41 AM
Martin Hyde Martin Hyde is offline
Guest
 
Join Date: Mar 2004
Quote:
Originally Posted by constanze View Post
Yes, that's the accusation: the Japanese police has an incredibly high number of confessions which are apparently obtained by holdings suspects far longer than 48 hours without sleep. (The old KGB method in other words).

If these coerced / false confessions are then used in "normal" trials, it doesn't help the accused much if the trial itself is proper and on presumption of innocence, he will still be damned on his confession.
I do not know how fair it is, but I've heard many Western commentators say that Japan's criminal justice system is very much about keeping society ordered as opposed to being especially concerned with arriving at the truth or doling out some abstractly defined justice.

Obviously all criminal justice systems stem from the ancient role of government to attempt to prevent criminals from being handled by unruly lynch mobs and to prevent individuals from settling criminal cases through vigilantism and violence so to a degree all criminal justice has its roots in providing some degree of stability and order. However what I have often heard is that is still the absolute, primary focus in Japan.
Reply With Quote
  #34  
Old 07-11-2011, 06:48 AM
clairobscur clairobscur is offline
Charter Member
 
Join Date: Aug 2001
Location: Paris
Posts: 13,969
Quote:
Originally Posted by Capitaine Zombie View Post
(in fact we used to have judges whose job was not to sit in court but to conduct the investigation).
We still have them. Sarkozy wanted to change completely the criminal procedure, suppressing the "juge d'instruction", to turn it into a kind of mix of the Civil Law and Common Law systems (IMO, with the worst of both worlds for the accused). This reform was strongly criticized, and he eventually gave Żp, unwilling to face yet another minefield. I'm very happy he failed, since IMO this reform was a VERY BAD IDEA (tm) for a variety of reasons. And the pretense he used to propose it was stuningly stupid, since it would have made worst what it was supposed to improve (Outreau case : the problem was that the inquiry judge had acted as if he were a US style prosecutor, so the obvious solution according to Sarkozy was to replace him by an *actual* US style prosecutor).

Anyway, the system has been left unchanged.


ETA :
Quote:
I guess you must have meant inquiry rather than inquisition.
In fact, "inquisitorial" is the usual name of this system. Nothing to do with the inquisition (except for the shared origin of the words)

But yes, the way the inquiry itself is led is a necessary feature of the system, as important as the way the trial is conducted.

Last edited by clairobscur; 07-11-2011 at 06:53 AM..
Reply With Quote
  #35  
Old 07-11-2011, 06:56 AM
clairobscur clairobscur is offline
Charter Member
 
Join Date: Aug 2001
Location: Paris
Posts: 13,969
Quote:
Originally Posted by ElvisL1ves View Post
There have been worse formal systems in the past - in revolutionary France under the Jacobins, [....], the governments were so completely totalitarian that it was not legal or even possible to offer a defense to prove one's innocence, and there was therefore no need for a trial.

In fact, normally, there was a trial (although numerous people were just massacred in a variety of ways). It was a total joke and probably wouldn't even deserve the name of "kangaroo court", but it took place.
Reply With Quote
  #36  
Old 07-11-2011, 06:57 AM
Diceman Diceman is offline
Guest
 
Join Date: Mar 1999
Quote:
Originally Posted by Martin Hyde View Post
I do not know how fair it is, but I've heard many Western commentators say that Japan's criminal justice system is very much about keeping society ordered as opposed to being especially concerned with arriving at the truth or doling out some abstractly defined justice.
I suspect that in many Asian countries, preserving social order trumps any concerns about individual justice.
Reply With Quote
  #37  
Old 07-11-2011, 08:04 AM
md2000 md2000 is offline
Guest
 
Join Date: Feb 2009
IIRC the Scots verdict options include "not proven". Basically, we don't think he's innocent, but the prosecution did not prove its case.
Reply With Quote
  #38  
Old 07-11-2011, 08:12 AM
Northern Piper Northern Piper is offline
Charter Member
 
Join Date: Jun 1999
Location: The Glitter Palace
Posts: 17,238
sure, but that doesn't mean that the Crown in Scotland doesn't have the onus of proof.

we had a recent thread on "Not Proven" for anyone who's interested: Why does Scotland use the "Not Proven" verdict?
Reply With Quote
  #39  
Old 07-11-2011, 01:45 PM
Elendil's Heir Elendil's Heir is offline
SDSAB
 
Join Date: Jun 2004
Location: At the Diogenes Club
Posts: 47,305
Back to Star Trek. The Tanuga IV criminal justice system is also based on the concept of guilty until proven innocent: http://memory-alpha.org/wiki/A_Matte...ctive_(episode)
Reply With Quote
  #40  
Old 07-11-2011, 03:16 PM
Peter Morris Peter Morris is online now
Charter Member
 
Join Date: Apr 2003
Location: ___\o/___(\___
Posts: 9,115
What about the appeals process in UK/ American/ Australian/ Canadian justice system. Mr X gets convicted for a crime on the testimony of a certain cop. A year later, that same cop is discovered planting evidence in another case. Mr X appeals with the claim that the cop did the same to him. Doesn't the appeals court pretty much assume he was guilty anyway, unless he can provide solid evidence of innocence?
Reply With Quote
  #41  
Old 07-11-2011, 03:38 PM
Polycarp Polycarp is offline
Guest
 
Join Date: Aug 1999
Location: A better place to be
Posts: 26,718
Quote:
Originally Posted by Peter Morris View Post
What about the appeals process in UK/ American/ Australian/ Canadian justice system. Mr X gets convicted for a crime on the testimony of a certain cop. A year later, that same cop is discovered planting evidence in another case. Mr X appeals with the claim that the cop did the same to him. Doesn't the appeals court pretty much assume he was guilty anyway, unless he can provide solid evidence of innocence?
I am going to essay a WAG here, and caveat it as such:

I believe that such cases would not be appeals per se, but rather habeas corpuis petitions to re-examine the case based on the potential that evidence used to convict may have been tainted, and if successful would lead to vacating of the conviction and a de novo trial in which the presumption of innocence is back in place.

I seek confirmation or correction from Dopers at Law who would actually know whether this is accurate.
Reply With Quote
  #42  
Old 07-11-2011, 06:31 PM
Bisected8 Bisected8 is offline
Guest
 
Join Date: Jun 2009
Quote:
Originally Posted by medicated View Post
In some situations, English defamation law does this. A defamatory statement is presumed to be false unless demonstrated to be true.

I know there's been a strong effort to change this recently, so my information might be out of date.
Strictly speaking that's a civil matter rather than a criminal one. I don't think it's been changed. Basically the thinking isn't that you're innocent of defamation until proven guilty, as much as the person you've been said to have defamed is innocent until you can prove them guilty of whatever allegations you've made.
Reply With Quote
  #43  
Old 07-12-2011, 12:46 AM
ruadh ruadh is online now
Guest
 
Join Date: May 1999
Quote:
Originally Posted by Bisected8 View Post
Strictly speaking that's a civil matter rather than a criminal one.
It is now, but there was still a criminal libel offence until last year.
Reply With Quote
  #44  
Old 07-12-2011, 02:03 AM
bengangmo bengangmo is offline
Guest
 
Join Date: Oct 2008
Here the way that software license law is written, you must prove you have a license. So if say, microsoft accused me of license violation, I have to prove my innocence. But that's one specific law and not an entire legal system.
Reply With Quote
  #45  
Old 07-12-2011, 02:14 AM
UDS UDS is offline
Guest
 
Join Date: Mar 2002
Quote:
Originally Posted by medicated View Post
In some situations, English defamation law does this. A defamatory statement is presumed to be false unless demonstrated to be true.
Well, thatís a bit misleading.

If I sue you for defamation, the onus is on me to prove (a) that you published a statement about me, and (b) that the statement is defamatory (i.e. that it tends to lower me in the eyes of the community).

Once I show prove two things, youíre in trouble. You can defend yourself by arguing that I have not discharged the onus - I have not shown that you published the statement, or that I have not shown that it is defamatory.

Or you can raise other defences - e.g. that the statement was privileged, or was published on a privileged occasion, or that it is ďjustifiedĒ - meaning, yes, it may be defamatory in the sense that it will damage your reputation, but thatís OK, because it is true.

Thereís no opening presumption that the statement is false. Truth or falsity is not an issue unless the defendant chooses to make it an issue, by relying on the defence of justification. If he chooses to raise the issue of truth as part of his defence, he has to prove truth. But there is nothing unusual in that; itís generally true, in a civil case, that the onus of proof is on the defendant to establish whatever defence he relies upon.
Reply With Quote
  #46  
Old 07-12-2011, 02:23 AM
UDS UDS is offline
Guest
 
Join Date: Mar 2002
Quote:
Originally Posted by Polycarp View Post
I am going to essay a WAG here, and caveat it as such:

I believe that such cases would not be appeals per se, but rather habeas corpuis petitions to re-examine the case based on the potential that evidence used to convict may have been tainted, and if successful would lead to vacating of the conviction and a de novo trial in which the presumption of innocence is back in place.

I seek confirmation or correction from Dopers at Law who would actually know whether this is accurate.
This must obviously depend on the specifics of the law of the jurisdiction concerned and IANAAmericanL but, in general, you wouldnít do this by way of a habeas corpus application. Itís generally a complete answer to a habeas corpus application to show that the applicant was convicted of a crime and sentenced to imprisonment and is held on foot of the sentencing order.

This would be by way of appeal, and whether the appeal is by way of a complete rehearing, with the benefit of the original presumption of innocence, or by some other procedure will depend both on the law and on the particular circumstances.

The most problematic case arises where the defendant has already exhausted all his appeals before the new evidence comes to light. In the Good Old Days in most common law countries his only recourse was a petition to the executive for some kind of clemency on the basis that his conviction could no longer be regarded as safe. However many (most?) common law countries have now adopted some kind of procedure whereby a case can be remitted to the courts when substantial new evidence emerges, to review the original conviction and order the conviction quashed, with or without a retrial.

The onus is likely to be on the applicant (i.e. the convicted person), but he doesn;ít necessarily have to prove, beyond all reasonable doubt, that he did not commit the crime concerned. The onus will be less burdensome and will focus not on whether he committed the crime, but on whether the verdict that he did can safely be relied upon, in the light of the new evidence.
Reply With Quote
  #47  
Old 07-12-2011, 02:30 AM
Balthisar Balthisar is offline
Charter Member
 
Join Date: Nov 2000
Location: Nanjing, China
Posts: 8,915
From this WSJ article about Mexico's system:
Quote:
Public Security Minister Genaro GarcŪa, Mexico's top cop, is embarking on the first, with a goal of replacing virtually every cop in the next 15 years with college-educated policemen. Last year, Congress amended the Constitution to incorporate the presumption of innocence into modern Mexican law, as well as allow oral trials in most cases. The problem: Mexican states have until 2016 to implement the changes.
The longer article is an interesting read, and the film mentioned (Presunto Culpable - Presumed Guilty) is available free legally on YouTube and other sources (with English subs). It's a rather stunning view of how the legal system works in an otherwise modern, western country.
Reply With Quote
  #48  
Old 07-12-2011, 06:58 AM
Odesio Odesio is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by Peter Morris View Post
Matthew Hopkins' witch trials, Salem, and the Spanish Inquisition.
I don't think guilty until proven innocence was codified in Salem Village or in Spain during the Inquisition. Men and women tried to witchcraft in Mass. were required to enter a plea before the court could proceed.
Reply With Quote
  #49  
Old 07-12-2011, 08:03 AM
Northern Piper Northern Piper is offline
Charter Member
 
Join Date: Jun 1999
Location: The Glitter Palace
Posts: 17,238
Quote:
Originally Posted by Peter Morris View Post
What about the appeals process in UK/ American/ Australian/ Canadian justice system. Mr X gets convicted for a crime on the testimony of a certain cop. A year later, that same cop is discovered planting evidence in another case. Mr X appeals with the claim that the cop did the same to him. Doesn't the appeals court pretty much assume he was guilty anyway, unless he can provide solid evidence of innocence?
I can't speak for the other countries, but in Canada, the test for the admission of fresh evidence is a combination of due diligence and its likely effect on the verdict.

The due diligence aspect is simply that the convicted person has to show that this truly is fresh evidence - that he didn't know about it at trial and could not reasonably have been expected to know about it. The hypothetical example would likely meet that test - a crooked cop would likely do everything he could to keep his habit of planting evidence a secret.

The second step of the test is to ask, "If this evidence had been led at trial, is it likely that it would have affected the outcome?" This phrasing of the test favours the accused: he doesn't have to prove his innocence overall in the court of appeal, and he doesn't have to argue that the fresh evidence is so compelling that it proves his innocence. All he needs to do is show that the fresh evidence is significant enough that it could reasonably have affected the outcome.

If both branches of the test are met, the appellate court will admit the fresh evidence. However, appellate courts aren't there to re-try cases. Instead, it will then quash the conviction and order a new trial, with the fresh evidence available to the accused.

It will then be up to the Crown to determine if the fresh evidence is so compelling that it would not be appropriate to re-try the case. If the Crown concludes not, it would enter a stay. If the Crown concludes there is still sufficient evidence to support a trial, then the matter will proceed to trial with the fresh evidence. For instance, in this hypothetical, the Crown may conclude from its review of the case that the police officer did not in fact tamper with the evidence in this case, even though he appears to have done so in other cases; a question of credibility for the jury to determine.

More generally on appeals, the convicted accused does not have the benefit of the presumption of innocence. The court below has found that he was guilty, so the presumption has been rebutted by the Crown. On appeals, the task of the accused is to argue that there were sufficient errors made in the trial process that the conviction is unsafe. In some cases, the appellate court may accept that argument, allow the appeal, and order a new trial. In other cases, usually turning on pure questions of law, it may allow the appeal and enter an acquittal. However, those cases are rare, since most appeals involve some element of the appreciation of the evidence, which is not the task of the appellate courts, as outlined above.
Reply With Quote
  #50  
Old 07-12-2011, 08:06 AM
MichaelEmouse MichaelEmouse is online now
Guest
 
Join Date: Jan 2010
Quote:
Originally Posted by Northern Piper View Post
I can't speak for the other countries, but in Canada, the test for the admission of fresh evidence is a combination of due diligence and its likely effect on the verdict.
.
Do you have any memory of the case law that says there has to be diligence? I'm not disagreeing, it seems like a fairly common sense rule. But I'd like to know it in a bit more detail.
Reply With Quote
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 04:05 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@chicagoreader.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Publishers - interested in subscribing to the Straight Dope?
Write to: sdsubscriptions@chicagoreader.com.

Copyright © 2013 Sun-Times Media, LLC.