Alleged: close but not quite. Alleged is used to avoid contempt of court, that is prejudging or prejudicing the outcome of the Trial by circulating or inviting an inference of guilt.
Guantanamo Bay. I have my own views, fortunately after years the Supreme Court will shortly issue its view. Within weeks I believe.
A question about presumption of innocence turned into a debate about the Guatanamo Bay detainees. This may be the first time a thread was literally hijacked to Cuba.
Little Nemo 
I thank everyone for their legal expertise, and knowledge. But I am not convinced that Guilt and Innocence are the same as ‘Foung Guilty by Court of Law’ and ‘Presumed Innocent’.
Is not Guilt and Innocence absolute states of being set into place at the instigation of the event being considered. ie if I steal a chocolate bar from a shop I immediately become guilty of that act, or if I do not steal but pay for it I am immediately innocent of stealing. The trial is there to determine if the state has a right to seek recompense and or take freedom away from the charged individual, and exists only to determine if there is sufficient evidence to be confident of the individual’s guilt.
If for instance a shopowner sees me steal from them, but the court of law finds insufficient evidence to charge me, Is the shopowner not quite reasonable in not allowing me in there shop again? What if there is no sign saying that he reserves the right to refuse service to anyone? What if I make a claim that he refuses to serve me because of some discriminatory behaviour on his part? And what if he advises other shopkeepers that he saw me stealing?
(c.f. I do not steal candy from shops, I prefer to steal it from little children 
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[QUOTE=Bippy the Beardless]
So we clearly have presumed innocence not necessarily equal to innocence.
[QUOTE]
Exactly and a verdict of Not Guilty doesn’t mean the defedant didn’t do the act. It is really equivalent in all cases, I think, to the “Not Proven” mentioned by Northern Piper.
In some circumstances in the UK, you may not have presumed innocence. There is a new Sexual Offences Bill in the UK which states that under certain cumstances, such as the victim being in fear of violence, in illegal captivity, involuntarily drugged etc, the victim is presumed not to have consented. This, combined with the fact that rape is mostly about consent anyway, means that effectively, the Defendant is presumed to be guilty, and then has to prove his innocence (that the victim consented).
This is also seen in some drug laws, where if you are caught in possession of drugs, you are presumed guilty unless you can prove that you obtained the drugs by legal means.
So, the presumption of innocence is by no means a universal doctrine.
Possibly slander on the telling other shopkeepers, but I think his business is private and not subject to discrimination laws. If a court finds you not guilty, then you are not guilty. It would be as if you had never entered the court. Imagine if you were someone that was wrongly charged, and the court found your innocence - it would be a bitch to find out that the rest of your life was ruined by the wrongful conviction, yes?
In fact, there was once such a case in the UK, a man was charged with molesting a young girl. It was found that the investigation was done in a manner that violated his right to a fair trial (they only asked the girl, and not the man), and the police threw the case out. However, the local authority went and spread the information that he was a child abuser, and even called up his employers, who then fired him. He applied for judicial review, of course, and was succesful. Not too sure if he got damages, though, since it was a public body decision, but I’m pretty sure if it were a private party making the allegations, they could have been sued.
Arrest. :smack:
But can an arrest be wrongfull if you actually did commit the crime? You see my contention that guilt and innocence is not determined by the court of law, but by the thing that the defendent actually did or did not do.
The act of the local authority in naming the not-convicted and presumed innocent man is only reprehensable if that man in fact did not mollest the child. It is mearly missguided if the man did molest the child. It should not have happened, because the court is the place for such determination of certainty of guilt, but it seems to me that the actual action of the man involved w.r.t. the girl is more important (even though we will probably never know what actually happened).
Let me put it this way: if in fact we did objectively know that the man molested the child, he would have been convicted. And the courts are the right place to decide this objective innocence.
If you somehow know that the accused is guilty, but cannot prove it, then too bad. For social reasons, guilt that cannot be objectively proved cannot be a basis for discrimination. What would stop me from claiming that you were a thief, and therefore influencing other shopowners to bar you from their stores, if all that you did wrong was to piss me off?
Hmm…ever been to Tax Court?
It’s worth noting further that there’s a distinction between being guilty of a crime and having committed a criminal act. That sounds very much like a semantic quibble, but it is not.
Contemplate “lesser included offenses,” to start with. It’s very rare to see someone arrested for a manslaughter or lower-level homicide charge – the arrest is for murder, and the jury can determine that the elements that distinguish murder from manslaughter were not present and convict of the lesser offense.
The whole Kobe Bryant case (about which I don’t want to start an argument) is not about whether or not they had sex, but about whether or not she consented to sex without coercion of any sort. If she did, IIRC, there is no criminal act there (depending on Colorado’s laws).
The prosecutor’s task is to prove both that act X took place and that it is a crime under the provisions of statute Y. It’s quite possible that the defendant may stipulate the alleged act and prove that it was not a crime. “Yes, I took the green 1985 Plymouth with VIN ________ and drove off in it. But it’s my car, for which I have valid title and bill of sale right here. It was stolen from me three months ago; here’s the police report; and the thief sold it to Honest Harry’s Used Cars, who sold it to the complainant. It’s not a crime to take your own property.”
Ah, but there you step from the general concept of (booming echo effect)“The Law”(/booming echo effect) and into the actual specifics of the laws, i.e. statute. In most states, the “hardcore” presumed-innocent, beyond-a-reasonable-doubt burden is applied to Criminal Court, and not necessarily to civil or administrative venues. “Tax Court” in many places is statutorily a distinct, separate entity from the Criminal Court.
Presumptioin of innocence under due process is a guide to government behavior, not universal philosophy. Throughout history, there have been rules as to what extent society can come after you, no matter what you have done. Even in the Bible, God commands the Israelites to set up “cities of refuge” where those who have committed wrongs can go and can not be brought to justice.
Let’s say you kill someone deliberately, 100 people see you do it, and you are arrested. You still get the right to:
[ol]
[li] have the cops declare what crime you are charged with, and read you your rights (your 5th Amendment right not to be complelled to testify against yourself, and your Supreme Court-directed right to professional legal representation in all cases)[/li][li]a public trial held in your presence, at which you (or your representative) must be allowed to speak in your defense[/li][li]be officially judged only according to the Constitutionally legitimate evidence presented at this trial (if not one of the 100 people is willing to go on public record with their memories of your act, you can’t be judged on what they saw; if the police broke into your house after your arrest and took stuff, without a court-issued warrant, they can’t use it against you)[/li][li]have the court and government treat you as though you are as innocent as a newborn babe until an impartial jury (e.g., none of the 100 people should be on the jury) of your peers judges that the evidence presented against you in the course of the trial merits, beyond a reasonable doubt, conviction of the crime[/li][/ol]
If I were ever to meet OJ Simpson, I would behave toward him the way I would behave toward someone who killed two people, because that’s what I have become convinced he did.
The twelve people whose opinion actually counted in the matter, however, declared unanimously that they were not convinced, and so the government must treat him as though he has done nothing wrong.
It doesn’t always work out the way we would like, but under this system we all have less to fear from the government than if it were given freer reign.
If I wish to make the claim, “Joe Blow killed Mrs. Schmidlap”, then I am making a POSITIVE assertion. Let’s say the defendant Mr. Blow makes a NEGATIVE statement, i.e., I did not kill Mrs. Schmidlap. In all formal rules of debate, it is the individual who makes the positive assertion that must present evidence to support their case. Someone who makes the negative statement need not. If you tell me, as George H. Smith once did, that you have a magic elf sitting on your head, it is not up to me to prove you don’t. It is up to you to prove you do. Of course - and here’s the catch - you can NEVER prove it’s there. I can never prove beyond a shadow of a doubt that you killed Mrs. Schmidlap. I might be able to state my case such that you do not have any REASONABLE doubt left. That is the highest standard, legally speaking.
The statement, “The defendant is presumed innocent until proven guilty beyond a reasonable doubt” is the whole statement. But “innocent until proven guilty” alone is a fallacy.
It is a common conception that “negatives can’t be proven”, i.e., prove that I was not having sex with your wife last night. But scientifically speaking (and in this case legally speaking too) disproof is the only kind of proof you get. It would be very literally impossible for a prosecutor to prove sensu stricto that someone committed a crime (a positive assertion), hence the presumption of innocence.
Why is this and what do I mean by it? Consider the proposition, as Karl Popper did, “All swans are white.” This is analagous to the statement “OJ Simpson killed his wife.” Both are positive statements based on evidence you may have gathered. All the swans you’ve ever seen are white. The glove had blood on it, DNA, etc. etc. But then one day, much to your surprise, you see a black swan. There goes your whole “all swans are white” theory. All it takes is one black swan, or one person other than Mrs. OJ with DNA exactly like hers (ha ha) to disprove your theory once and for all.
The same thing goes for the theory of gravity. Sure, every time I’ve dropped something it’s fallen down to the ground and I fully expect that this will keep happening. Millions of people, birds, cliffs, planets etc. have been dutifully following the rules and dropping, moving, etc. for billions of years. But I cannot make the positive statement “This pen will drop to the ground when I let it go”. You cannot say for sure what odd thing will occur a millisecond from now that will completely throw the theory of gravity for a loop. Am I pretty damned sure that won’t happen? Oh yes. Am I CERTAIN? Here I scratch my chin and must confess that I am not.
So “presumption” of innocence is just legal speak for, "you cannot conclusively demonstrate beyond a shadow of a doubt that Jow Blow is guilty. What you CAN demonstrate is that he might be to 12 presumably reasonable people. The presumption of innocence isn’t something we do today just to be nice to defendants. It’s based on a long history of forensic debate well known to our forefathers and given a serious backbone by some philosophers in the 1940’s and 1950’s. Those who make positive statements must back up their statements with evidence, and in our system, this means proving every element of a crime beyond a reasonable doubt.