“Her” last line actually. And that would be fine, with the proviso that the defendant does not bear that burden, legally speaking.
sure, the burden of proof lies w/the prosecuton but the entire burden of risk lies with the defendant.
prosecutor (wrongfully) looses the case. goes back to work the next day (sure risk is there for society of bad guy continuing to do bad things, but largely speaking, the prosecutors life is not significantly changed).
defendant wrongfully looses the case, spends years in prison, potential horrific experiences, and of course, significant downside even after release.
my point is, that especially when time has passed,and there is less available actual evidence, the risk of loosing is far more significant for the (potentially innocent) defendant. if you faced potential 20 years in prison and were instead offered a six month jail sentence?
This issue of deteriorating evidence in principle ought not matter. Ideally, all things will get taken into account. If one party has kept its documents and another had not, then it makes no sense to assume that they never existed. A court, in being just and impartial, should take this into account and realize the trial is undecidable.
This bring me to a second point: the very concept we have that a court should decide whether someone is either innocent or guilty. That’s ridiculous. The only thing that a court can decide are the probabilities of guilt/innocence and the margin of error.
Why the hell do not we use this more direct information in part of our process of justice? If a court is not entirely sure of something, the sentence should be reduced in light of its doubts. If a court cannot with certainty say someone is guilty but there’s a very good likelihood, the guy shouldn’t just walk out of court whistling a tuny.
An investor doesn’t just either buy or stock or not buy a stock. Hedging (changing the degree in response to probability) is the best way to ensure the best outcome.
Best way to ensure that the innocent suffer less and the guilty are punished more.
When the hell will our supposedly advanced society evolve to understand this?
Ugh, damn, I hit the wrong button. That post needs heavy editing. I hope it won’t affect your judgements of my argument.
not the way it happens. I say “you hit me on June 3, 1989, at 3 pm at this location” that’s considered evidence. happens all the time. As a business practice, I must keep 7 years worth of crap. I mean, vitally important documents. In my 30 years w/this org, I’ve only been asked about stuff older than one year, 3 or 4 times, and each of those times, they were asking about stuff 20 plus years old. I routinely said “No paperwork past 7 years” and was happy to do so. happy even more to purge documentation past that 7 year margin. otherwise, I"d be lost in paper.
as an individual, I can pretty easily prove where I’ve been most work days for the recent past. no hope for off hours unless darned recent/
we should look at this not as the potentially guilty party but as the potentially innocent one, who would, w/o statute of limitatons, may feel compelled to keep copious records of all kinds until death do us part.
IMHo, this is an interesting idea which deserves a thread of its own. Please start one, Alex! I’m serious.
This strikes me as a Very Bad Idea. How often do you think that a prosecutor goes forward with a case with a 0% probability of conviction? There’s always *some * incriminating evidence. It seems to me that this scheme of yours would create a system in which almost every trial ends in some jail time,
especially since a simple accusation from some one is evidence. “yes, officer, that’s the man that hit me”. how can you prove you didn’t (even if it was recent) Even if 12 jurors believe the person was probably lying, 100% certainty of that would be difficlut to attain.
You buy a used computer from a friend, friend doesn’t tell you they stole it, you had no reason to suspect it, paid decent $$ for it - prove you didn’t know it was stolen.
know of a case where a woman was dating a man, the man stole a check from her, wrote it out to himself and cashed it out of state, untlimately he got arrested etc, but under that scenario, she’d do time as well, even though she was the victim of theft - how could she prove she didn’t know that he had done it? how could she prove to 100% certainty that she didn’t profit from the deal.
another guy I know gave a ride to a friend of his nephew. Problem was, the ‘friend’ was the bag man for the drug dealing nephew, and the nephew + friend were under surveilance. Man was charged w/money laundering - he had no idea the friend was carrying large sums of cash, was not involved in the drug dealing at all, simply was related to the kid. Hell, most of the drug dealers I know had some periphial connection w/their family members, under that scenario the entire family would do time.
I can come up w/scenarios all day long.
Exactly! Amen, brother. Our system of justice wisely does not permit the state to “kinda sorta” prove its case. If you were ever mistakenly charged with a crime, you wouldn’t want it any other way.
umm… unless you were also falsely convicted…
ever think about that one? well? or do you think that there’s no such thing???
no, i don’t mean that every time there’s a slight chance someone is guilty they should be sent to jail, even for a day or two. that’ll probably be too inefficient and annoying. i mean such micro-punishments can be debated, but if we don’t feel they have a reason to exist, then no point to have them.
much more interesting are the cases where the evidence just barely misses the threshold of “beyond reasonable doubt,” as well as where it barely passes. it is here that most mistakes are made, and it would alleviate a lot of pain and error if the line wasn’t so artificially sharp.
You are perhaps unclear about this. The amount of weight the judge gives a piece of evidence does not change! The threshold of evidence necessary for the judge to form an opinion of the probability of guilt stays the same!! What changes is how the effect on the defendent is changed to better reflect those conclusions.
But yeah, an important counterpoint is that there is a whole new layer of responsibility placed upon the judge to be fair and objective. Certainly a lot more leeway is given to judges than there already is to determine sentences. Perhaps judges cannot handle it. I think the argument ought be split into the two cases of first hypothetically assuming that judges would be able to carry out their roles well, and a debate on whether judges would be able to do that. (And maybe, even, what we could do to change the current system to help them out in that respect… such as assigning more than one judge to a case.)