Stardate 20031021.1216

(On Screen): Armed Liberal writes a post about the Kobe Bryant rape trial, and begins with this:

What I pay attention to and know [about the Bryant case] is brief; there was a sexual encounter, it devolved into the "he said/she said" of consensual sex versus rape, with what little physical evidence has made it to the media that gets my attention decidedly ambivalent.

That pretty much describes me, too. Armed Liberal then writes about a couple of events in his past which are relevant. From his description he is only a few years older than I am, but my youth was much different than his. I came from a different kind of family background (my mom's grandfather was a Methodist Minister) and for that reason and others I was never anything like as sexually and socially active as he describes himself as having been. So I have never been in a situation where I was in peril of being accused of rape, and in fact I don't know anyone who has been. But I've always been keenly aware of the possibility, and I've suffered from other things which were related.

Responding to this post, Gabriel Gonzales wrote a post which included the following:

...victims can only obtain justice at the cost of a high number of false convictions. Conversely, the rights of the defendant can only be upheld at the cost of substantial false acquittals.

I left a word out of that quote at the beginning. It actually began Rape victims can only obtain justice...

I left the word out because without it that statement is a generic one about all crime, and about a tradeoff that society has to make. Criminal justice is a process which pretty much cannot be perfect. You can tune the system to guarantee that no one who is guilty ever goes free, but you'll also lock up a lot of innocents. You can tune the system so that no one who is innocent is ever confined, but you won't lock up many who are guilty, either. In the middle is a sour spot (the opposite of a sweet spot) where many who are guilty go free and many who are innocent get confined. Unfortunately, if you decide it's pointless and have no such system at all, then you get rampant crime and the fabric of society breaks down. It's one of those cases where no ideal solution is available, but an imperfect solution is better than no solution at all. But if you decide you must have a criminal justice system, you have to tune it, trading off the chance of failing to convict the guilty against the chance of wrongly convicting the innocent. Which of those do you consider worse?

One point of view is that "it is better for a thousand guilty men to go free than that one innocent man be wrongly convicted."

In the Napoleonic code as used in France, until just recently there was no presumption of innocence and a defendant usually had to present evidence of innocence. But the British legal system has always leaned more towards the idea that wrongful conviction was worse than wrongful acquittal. The American system is based on the British system but goes even further in that direction by making those protections explicit. That's why the 4th, 5th, and 6th amendments were proposed and ratified.

We as a society have made a deliberate decision that wrongful conviction is much worse. We may not quite have reached the point of 1000:1, but we're well over on that end of the scale.

Nonetheless, we still convict innocent people, and all of us know full well that many who are guilty go free, and that the majority of crimes never lead to trials. We've placed limits on police investigation, knowing that this will limit their ability to identify criminals and to collect evidence, because we think there would be even worse consequences if there were no such limits. We've established certain procedures in court which set a high bar for conviction. It's a choice we've made, and there are costs associated with it. But any other choice would have had costs, too. There's no perfect answer.

In civil suits, the plaintiff and the defendant stand as equals before the court, even if the plaintiff is the government (such as in antitrust suits). There's no initial presumption, and the decision is based on "preponderance of evidence", which means that whoever makes the best case wins, even if his case is only marginally better.

There's one major exception to that: in libel suits (and other defamation actions), there is an initial presumption of no libel because the defendant was exercising his rights under the First Amendment. The burden of proof is on the plaintiff to show that libel took place. If the plaintiff is judged to be a "public figure" then the standard of proof required is particularly steep.

In civil court, you can be forced to testify against yourself. Your opponent can call you to the stand and ask you questions, and if you lie you are committing perjury. If you refuse to answer, you're in contempt of court.

But if you lose in civil court you cannot be imprisoned (though you can be financially ruined). The stakes in criminal court are higher, and we've instituted protections against abuse. In criminal cases, the state is required to prove guilt "beyond a reasonable doubt". The defendant is presumed innocent, and if the state m