That’s interesting, thanks.
However, it’s not quite the ratio we’re looking for - that ratio is false positives to true positives. We want false positives to false negatives. In other words, the other side of the ratio is the number of guilty people who were not successfully prosecuted. It’s hard to imagine how to estimate that.
Well…
…it could be admissible also to rebut the defense claim of mistake, if one were made.
Fair point.
Either way, it would only be admissible if the defence has already made a particular claim. Wouldn’t go in as a stand-alone question, would it?
There are currently about 3,000 people on Death Row. According to an NPR story I heard earlier in the month, there have been 156 exonerations of Death Row inmates. So that’s about 20 guilty people for every one innocent one. (And there’s the possibility that more will be exonerated.)
I wonder: If 1 in a 100 is too high a ratio, and 1 in 20 is the current ratio, what is the actual percentage of ‘acceptable losses’?
The question didn’t limit itself to prior conduct. Asking “have you ever driven faster than the speeding limit?” includes the charge that you are on trial for - although it’s worded in a way that includes any other possible occasions as well.
It’s difficult to think of an answer that won’t hurt your case.
Again, to be clear, the ratio you are citing is not the one I was considering. You are citing the ratio of innocents convicted to guilty convicted, i.e. false positives to true positives (treating conviction as “positive”). The ratio I was considering was the number of innocents convicted to guilty exonerated, i.e. false positives to false negatives. Although I can’t imagine how to estimate the number of guilty exonerated, so looking at the ratio you cite is probably the best proxy.
As a practical matter, ethically or socially I find it really hard to generalize across all crimes and all punishment. Where the death penalty is involved, it’s much more troubling.
What I think we do know is that where people are convicted principally from eyewitness testimony, the ratio probably looks horrific.
This is a disgustingly cynical statement to make. In essence, it boils down to the conjecture that sometimes, some people who have done nothing wrong but were simply unlucky have to sacrifice their own life and freedom for the greater common good. You can call a society that works under this principle anything, but not a fre society or a system of rule of law; I’d call it totalitarian.
I believe the target ratio is “Better to let 10 guilty men go free than to send 1 innocent man to prison”.
My brother likes to point that out whenever someone suggests that the awful state of our prisons is okay because only bad people get sent there. As he puts it, the system is based on the idea that 1 in 11 people in prison are innocent.
At the risk of being obvious: Isilder is talking about Australia, and the OP wasn’t talking about arraigment, so “what do you mean ‘we’ white man?”
In Australia, you don’t enter your plea at the trial, but at arrainment or a preliminary hearing. Isilder was making a comment about the use of unsworn statements at trial, which I take to be germain to the general discusstion.
Aus, like the USA, uses an court system derived from the UK, and, like the UK and the USA, this includes a ban on the requirement for self-incrimination. I note that the drafters of the American constitution at first didn’t think it was neccessary to legislate that, but the later ammendment corrected that, and brought you into line with the rest of the world.
When I was sitting in on law classes (my girlfriend at the time was taking the courses; I just came to watch) one law professor offered that maxim, but the number he used was ten, not one hundred.
The principle is being taught in law schools. The exact calibration may be up for grabs.
(The specific class was “Trial Techniques.”)
OP was asking why OJ Simpson wasn’t called to testify. That means it’s safe to assume we’re talking about the legal process in the US. Isilder’s interjection about Australia was irrelevant.
You make it sound like the amendment was passed just last year. It was 1791, when the first British colony in Australia was three years old.
You also have the right to have a retired cop spend all of his free time looking into your case because something “just doesn’t feel right”. He will, however, feel some censure from his ex-partners and ex-chief.
The protection against self-incrimination already existed at the state level and in some state constitutions in 1791.
When the protection was added to the federal constitution, it affirmed that the same basic rule would apply to the new federal government. It would already have been one of the common law principles that the new federal government operated under. The Fifth Amendment elevated that common law protection to constitutional status.
By entrenching the right against self-incrimination in the Constitution, the United States was not “catching up” to other common law jurisdictions. The United States in 1791 was going farther to protect that right than any other country at that time.
Out of curiosity, if we’re speaking of catching up, what constitutional protection does the Commonwealth of Australia give to the right against self-incrimination?
The High Court of Australia has actually been most conservative in reading rights into the Constitution of Australia. There is no specific Charter of Rights and nl right to protection against self incrimination.
Crim Procedure is a State issue there and various statutes do have such protections.
Thats what I recall from a lecture given to us by a former Aussie High Court judge many years ago. Need an actual Oz lawyer to say more.
EDIT: And a bit of bored weekend research reveals that Queensland Evidence Act does contain a provision. Section 9 and 15.
Missed Edit: As does NSW; Section 128, Evidence Act.
AndSouth Australia. (PDF) Section 18 (1) (a) and (d).
I know that OJ is doing time in the Nevada State prison…but did he ever conduct his search for ther “real killer”? If so, who was it?
Thanks for that AK84.
Just to clarify, I wasn’t meaning to suggest there wouldn’t be statutory or common law protections in Australia for the right to silence. I would have been surprised if they do not considering their common law heritage. 
I was responding to the suggestion that by passing the Fifth Amendment the US had “caught up” to the rest of the common law world. Based on this information, it looks like Australia is actually lagging behind the US.
The supposition is incorrect. Since everyone else in the courtroom has driven above the speed limit, the question would have little value. The case would be about one specific instance.
In the 1780s…yeah.