Seems like the trying on of the glove was almost akin to testimony.
I don’t understand this objection.
It is not a conjecture that some innocent people sacrifice their lives and freedom for the sake of a functioning justice system. This is a hallmark of literally every country on earth. Any legal system will be staffed by human beings, and human beings fuck up. They fuck up by letting off murderers and also by imprisoning the innocent. False positives and false negatives, Type 1 and Type 2 errors. And there is always, always, always a trade-off between those errors.
We cannot throw people in prison and also guarantee that none of them will be innocent. We can try to push down the percentage of innocent people, but we cannot get it to zero. The more we tinker with the system to reduce the imprisonment of the innocent, the better chance that a genuine murderer has of getting off the hook. Always a trade-off. That means that real murderers will be out on the streets, and at least some of them will keep doing what murderers tend to do. I want to emphasize that I have not the slightest idea of the numbers involved here, especially in Europe vs the US. No idea what the real world ratio is. But it exists. It’s real. I don’t see how it’s cynical to accept the fact of the fallibility of human systems, and then to wonder at how it might be improved.
The Blackstone formulation mentioned earlier is “It is better that ten guilty persons escape than that one innocent suffer”. But how far do we take that? There is a limit to this. Is it better to let 100 murderers escape than to let one innocent suffer? 1000? The only way to absolutely guarantee that no innocent is imprisoned for murder is to let literally every genuine murderer off, and that is just as unacceptable as imprisoning every person the police arrest. It’s not totalitarian to realize that every society has made the implicit choice of sacrificing at least some innocent lives.
This is the sort of idea that Riemann is discussing. And again, facing up to it does not strike me as cynical.
Would you, personally, be willing to tolerate life imprisonment if it meant a guarantee that 100 murderers were taken off the streets, with the alternative that they get away with it? You would be taking a bullet for Team Society if you did that. Would it be worth it? I think I’d personally take that deal. But then the next question is… how low would that number go? Would I accept life imprisonment for a guarantee of taking 50 murderers off the streets, vs them living free? 20? 10? 1?
I don’t know where the “societally correct” cutoff for that is. I don’t know where the morally correct cut-off on such a question is. My own life is valuable enough to me that I wouldn’t give it up for one caught murderer, but not so dear that I’d let a hundred walk. At least I don’t think so. There’s no possibility of facing a genuine choice like this in real life so it’s impossible to know what my actual decision would be, but at least right now I hope that I’d take the hit if it took a hundred guys with me. I think it’s beneficial, not disgusting, to work through these sorts of ideas because even though the real legal system evolved more naturally than this, and was not deliberately designed with these sorts of odds in mind, these very questions outline the fundamental goals we should actually be aiming for with any decent criminal justice system. I think a world in which more people took this sort of thinking seriously is a world in which we could actually improve underlying conditions. No perfection with any human system, but I think we’d have a better chance of improving our institutions if we were more serious about the trade-offs involved.
obviously not, since we can and have convicted innocent people. I don’t think that when the person who said “better 100 guilty go free than one innocent suffer” (sometimes attributed to Benjamin Franklin, but I won’t try to claim that’s true) they were trying to put forth a measurable or quantifiable goal. More that they saw the value in requiring the state to prove a defendant’s guilt instead of making the defendant prove innocence; and if a guilty person goes free because the state didn’t have that proof, so be it. If we were “guilty unless proven innocent” then I’d wager a hell of a lot more people would be in jail. Because a lot of that would be asking the defense to prove a negative. “No, I cannot prove I wasn’t there.” “No, I cannot prove I didn’t have a motive.”
That’s a good point. Sorry I missed that.
The OP’s question has been answered, but I’m curious why the 5th Amendment (and other similar protections in common law jurisdictions) have become so absolute. Say a defendant puts forward a notice of alibi. He says that he was 2000 miles away when the murder occurred. His cousin testifies that on the day of the murder, the cousin saw the defendant 2000 miles away.
By inference, the defendant’s testimony will not be incriminating. He will not be forced to make the choice between confession and perjury. I could see in this and similar scenarios where a court could read the 5th amendment as requiring the defendant’s testimony in this scenario since he will not be a witness “against” himself.
Many times I don’t put a defendant on the stand because he will simply be an awful witness and not because he would testify that he was guilty, or from my conversations with him, perjure himself. It would seem that in those situations, the 5th amendment should not apply, but our case law doesn’t make that distinction.
Further, why is the state prohibited from pointing out that the defendant refused to testify and use it as evidence of guilt? That is also not prohibited by the text of the 5th amendment, but is by case law.
In short, I don’t believe that historically the rights discussed in the 5th amendment were meant to be the broad protection that it is used for today.
He conducted his search primarily on Florida golf courses.
You’re a defense attorney and you believe this?
because the whole goddamned point is that it’s trying to protect the people from being railroaded into jail by the state. Otherwise the state could just say to the jury “Look, there’s a reason we arrested this guy and put him on trial, and he won’t defend himself? He must be guilty!” which then pretty much kneecaps the whole “innocent until proven guilty” doctrine.
wow.
I agree with the statement the miscarriages of justice exist, and can never be eliminated 100 %. What I disagree with is the conclusion, namely, that we should simply shruf our shoulders and accept it. The point I’m making is: Miscarriages of justices are, by definition, unjust and intolerable. They exist, yes, in the sense that other injustices and evils aalso exist; but it’s not something we should simply shrug off as an unalterable fact of life.
That is not what the post which I dubbed “cynical” did. It did not wonder how the fallibility of human systems might be improved. It purported to make a conscious trade-off. It took the fallibility of justice into account but was willing to accept it for a deal which the post considered worth the cost. That is very different from what you are describing.
Honestly? You are saying that you, Hellestal, would be willing to have yourself wrongly imprisoned for life if it guarantees that 100 murderes are taken off the street? Honestly, I find it hard to believe that if the situation really arose, you’d be making that sacrifice. Even if it were true, that doesn’t mean that you have a right to expect others to make the same sacrifice for you.
he’ll say that right up until the instant he has to do it, then conveniently walk it back. “Oh, I didn’t mean I personally would take that deal, but someone else should.”
Yes, I think that’s right - it’s not meant as a strict mathematical relationship, but as a statement of principle in the criminal law.
It’s often attributed to Blackstone, who mentioned it as a legal principle in his Commentaries on the Laws of England:
However, as the wikipedia article indicates, this principle pre-dates Blackstone in the Jewish, Christian and Muslim traditions, as well as being cited by earlier authorities in the English common law. Franklin and Adams both cited the principle with approval.
The wiki article also gives a list of political leaders who have disagreed with this principle, stating that it is more important to convict the guilty than allow innocents to escape. Those quoted as taking this position include Bismarck, Pol Pot, and Dick Cheney.
I hope this and the thread asking why anyone would plead not guilty are jokes/kids playing on Christmas break or something.
A few years ago, Prof. Alan Dershowitz 9 Harvard Law School) was interviewed-he stated that he believed that over 95% of those indicted were guilty. He also admitted that OJ was guilty, but he thought the jury’s decision was appropriate.
Which supports my premise that criminal trials are not about assessimg guilt or innocence.
Even if that figure were correct - and I’m just assuming that for the sake of argument -, it would not in the least bit be an argument for making changes to the procedural rights of defendants like presumption of innocence or the Fifth Amendment. That’s because prosecutors anticipate these procedural rights when they make the decision when to indict or not. In other words, only cases where prosecutors think there is a very good chance of conviction even in a system which equips the defendant with far-reaching rights ever go to trial. Trim back these rights, and you’ll make prosecutors much more trigger-happy in putting cases to trial. Result? More wrongful indictments of innocent defendants - and, with your reduction in defence rights, a higher percentage of wrongful convictions.
Some changes wouldn’t be worth the cost, given our current resources. That’s simplify a fact.
Whatever changes we would have to make overnight to have only 1 innocent in prison for every 1000 murderers let off would mean many, many, many murderers on the streets – again, given our current resources. (As previously mentioned, data for the second half of that ratio is basically impossible to find. We have data about the probably guilty in prison, but not for the guilty that dodged prison. Still it seems safe that there aren’t 1000 murderers outside of jail per one innocent in prison, simply given the many, many innocent in prison.) With such high evidential standards, a helluva lot of murderers would walk. Specifically, 1000 murderers would walk every time an innocent wound up in jail. Subsequently, some of those murderers would murder again. There would be blood. It would be a much unsafer society, for all of us, if we pushed tomorrow for such a high ratio given current resources.
That is the context of that post, and subsequent posts that clarify the question. Discussing what is a reasonable-ish sort of ratio, given today’s resources, seems like a perfectly sensible topic of conversation. We don’t want innocents in jail, and we don’t want murderers out murdering again, and we’ve got to find some balance between those. I don’t know what exactly that balance should be, but it’s one element of this broader discussion. An important one.
I find it hard to believe that you, and most other people, wouldn’t do the same given a good enough “exchange rate” on the guilty. Soldiers jump on grenades for their comrades. They take bullets meant for the guy next to them.
Given reasonable circumstances – like your closest family being taken care of financially – it would weigh a lot on many people’s conscience to have had the opportunity to remove that many murderers from society instead of having them wander around killing more folks. Some of them will be cashing their spouse’s life insurance policies, and that will be the end of it. They’re not likely to commit the crime again. But come on, others definitely will. I don’t know much about expected recidivism rates but if you have a hundred folks who weren’t punished the first time, then there will be blood. And to have a chance to stop that? To make a real difference in the world in such a positive tangible way? The possibility that we could have stopped some future murders would weigh on most people. Not everyone, but it would me and I bet it would you as well. If 100 is not your personal cutoff, then that’s fine. That’s perfectly understandable. But I bet there’s a number X that would be too high for you to live with. If X is big enough you’d jump on that grenade.
You’re right that I shouldn’t expect someone to deliberately, consciously, willingly become the sacrifice to take 100 murderers off the streets, who would otherwise go free.
In much the same way, I shouldn’t expect that an adult will voluntarily give up their place on a life raft if there are children waiting – children had the highest death rates in maritime disasters, boat crew the lowest. I can see myself nobly giving my way for a little tyke, and I also can see myself rushing to a space quickly and then avoiding eye contact with anyone else until the boat was away. I don’t know how I would personally act when it comes down to it.
At least the boat situation is actually one-for-one. But a group of 100 murderers who go free? They’re probably going to kill more than one person in the future. Let’s just say 5 people which strikes me as a conservative estimate. (If you think that’s not conservative, then bump the number of guilty to 1000 murderers or 10000 until you get a situation that works.) If we drop a Rawlsian veil of ignorance, and we don’t know who we are then what choice would we make? Well, that’s an easy one. There are more potential murder victims than there are innocents in prison. If we had to throw the dice, we’d prefer that the innocent went to jail to take the guilty along for the ride, because we have a net gain in lives saved. The future murder victims outweigh the one innocent in prison.
That seems like the right moral call. If I wanted to make a pompous moralistic position, I could start screaming that it’s disgusting not go to jail to take those murderers with you. The numbers are clear. The calculus of morality checks out.
Okay, human beings don’t make decisions like this. It would be dumb to claim I’m some magical exception, because I don’t make decisions like this either. But if we did and if we did so consistently across all walks of life, then we’d have a lot more lives saved than lost, not just in the justice system but everywhere else as well. That’s not totalitarian. It’s just sensible, with the focus where it should be: smart systems that do as much good as possible.
This is, I think, in the same spirit as the previous discussion.
The other point I suppose is that the common law and amendment protections were established in the days before Miranda. The 24-hour light-in-your-face interrogation is a cliché of 1930’s crime drama. In the middle ages, like in the communist realms, confessions were extracted by any means foul or fair, as long as they did not cut your tongue out too. This is the background against which enlightened common law said “the crown (state) must prove the case, cannot rely on the defendant to damn himself”. It’s the same logic that said the armed agent of the state must ask a judge for permission to search a man’s home and show cause, rather than kicking in the door on a whim to see if there was anything they could take to help prove his guilt in something or anything. In reaction to the old practice of torturing a man to confess, the new law was made to state a man could not be forced in any way to testify. The crown must prove the case.
OJ was just shit-lucky. he (supposedly) drove to his wife’s place, killed her and another person, blood all over the place, then drove home and quickly went for a plane ride - yet the police could not find enough evidence to prove him guilty beyond a reasonable doubt. No weapon, no bloody clothes except for one stray glove lying in the middle of the back yard, no bloody footprints in the bronco or blood all over expensive shoes, nobody saw him at the residence, etc. It’s rare for a murderer to be lucky enough to avoid leaving this evidence. (It’s also rare for a murderer to have the finances to expose police ineptitude).
justice may not be for sale, but the money helps you buy a few more lottery tickets on the court gamble.
But that’s what everyone has being saying. When your mom found the cookies missing, she “knew” you took them. She didn’t hold a trial. She spanked you (good old days) until you stopped lying or being silent, and confessed. The state does not have the luxury of saying “of course you did it, who else would have?” The state has to prove that you did it with real evidence, not spank you or use the rubber hose until you confess.
IIRC, the Napoleonic system 9as mentioned in other posts) has the opposite tack - the judge/prosecutor can ask you questions, which you must answer; however, the law states a criminal cannot be prosecuted for perjury for lies told during cross-examination, on the theory that of course a guilty man will say what he can to avoid conviction. This negates the whole purpose of testimony in British common law courts, that the testimony is sworn under oath, and penalty of perjury, to be true.
IIRC he was called to testify at the civil suit. The one where he was found to have caused the deaths of Ron and Nichole.
Yes, he couldn’t avoid the testimony in the civil suit. He could have plead the fifth, or simply pointed out he was found not guilty, or lied through his teeth (which I assume he did?)
Of course, he also could have admitted the whole thing, since he would have been immune due to double jeopardy rules.
However, the civil trial, of course, revolves around “preponderance of evidence” not “beyond reasonable doubt”. So losing a civil trial does not imply guilty automatically.
You’ll say that all the way up to the point where you actually have to do it.
I am just going by the plain text. In civil cases when a person takes the 5th amendment that can be used as an inference that he admits the questions he was asked. Suppose OJ really, really, really and truly, did not commit the murders. If called to testify, how would he be a “witness against himself”?
I’m not saying I support such a restrictive view of the 5th amendment, but the plain text doesn’t compel such a result. It only been since the 1960s that the courts have held that there cannot be an adverse belief about a defendant not testifying, and Scalia and Thomas hold views similar to the ones I put forth.