Chris Connaker's reminder of « your ignore lists »

[crenca]

The legal system in the U.S. and other common law countries is usually referred to as an "adversary system", with advocates representing each side before an impartial judge, or jury, whose job it is to try to determine the truth. In civil cases, the plaintiff, i.e. the person who sues, has the onus or burden of proving his case on a 'balance of probabilities' or a 'preponderance of evidence'. In a criminal case, the state has to prove to a judge or jury that the accused is guilty 'beyond a reasonable doubt'.

 

It is true that the best decisions result when the judge has the best information. What facts are proven, or "the truth", depends on the quality of the evidence presented. However, judges are people and, as such, they can and do make mistakes. Courts of appeal provide an avenue to correct those mistakes. They, too, don't always get it right. There are rules of evidence that were formulated with the goal of finding the truth.

 

I don't really believe the "rules of evidence" are formulated with the goal of "finding the truth", for as you say it is an "adversarial" system, not a "scientific" one (i.e truth finding enterprise). The goal is to "win", truth has little to do with that - it is only a tool to be used, abused, and manipulated in the real goal of winning.

 

I don't know what I would replace it with (would a "scientific" system be any better, and what form would it take?) but I hate to see the word "truth" mixed in a process where it really has no place except accidental/incidental, or perhaps in spite of the process and not because of it...

[PopPop]

My profession (land surveying) is based on a rules of evidence that requires me to recover all information pertinent to reconstructing the original boundary of land. We are hired by but don't (aren't supposed to) act as an advocate for our clients. Some Surveyor's are more ethical about their role than others. The rub is, our decisions about what evidence to consider is based on law and what ever physical evidence is available at the time we are hired. The best evidence often disappears in time.

[Jud]

You forgot matters of strict liability. It applies in certain situations like when you get caught dating an underage girl or get a speeding ticket. Intent is removed from consideration and you automatically get the maximum sentence if convicted. It would be like removing every level of penalty for killing someone. Everyone would get the death penalty. You have to be really careful because its not easy to get off on those things. If you don't bribe the judge, you're screwed.

 

I just meant it to be amusing, but now that you mention it, where did I go wrong?

 

Strict liability applies in at least two areas of the law that I can think of offhand: Public wrongs (crimes or regulatory violations) and private wrongs (torts). Each crime or tort has fundamental *elements* that must be proved. Some crimes and torts have one or more elements regarding intent or state of mind, which may be a requirement that the action was purposeful (e.g., first degree murder must be willful and premeditated), or that some other culpable state of mind exist (e.g., many torts require negligence, which I'll loosely define as a lack of the care a reasonable person would take in the circumstances). If one or more elements that require a particular state of mind can be substituted by something else (e.g., first degree felony murder, where a homicide takes place in the commission of another felony, or statutory rape, where the victim's state of mind - lack of consent - is presumed due to youth), this is called "strict liability." Note this does not necessarily remove intent from examination altogether: for felony murder, it might be necessary to prove intent to establish the underlying felony.

 

Although it might not be necessary to prove a particular state of mind to establish such crimes, violations, or torts, there are still necessary elements of each of these for which reliable evidence must be provided. I think most people have experienced a police officer or judge adjusting down their speed on a moving violation, or giving some other sort of break on another type of traffic violation, simply in order to avoid you fighting the thing and causing more time and trouble for everyone (e.g., the necessity for the officer to take time off the job to show up in court and testify to the reading on his radar gun, the necessity to show the gun was properly calibrated and maintained, etc., etc.). Because of this, strict liability crimes and torts may present as much latitude for negotiation and settlement as those that require proof of intent, no bribery required.

 

In fact, a crime or tort that ordinarily requires a showing of culpable state of mind may turn out to be easier to prove than the elements of a strict liability violation. There is a doctrine in tort law known as res ipsa loquitur ("the thing itself"), where the event that caused harm is itself considered all the proof needed of negligence: think of surgical instruments left in a patient. You were asleep, but your lack of knowledge of events is no problem; that hemostat in your abdomen is all the evidence required to show *someone* failed to exercise ordinary care. (The very first case establishing this doctrine concerned a poor unfortunate walking past an establishment when a barrel rolled out a second floor doorway and descended on him. He could not, obviously, testify as to the chain that resulted in the tragic event; but the court held that in the absence of ordinary care, barrels do not as a rule come flying out of second floor doorways, and thus this fact in itself established negligence.)

 

Remember: look up.

[sandyk]

Remember: look up.

 

Would you rather a bird drop something on top of your head, or in your eye ? (grin)

[Jud]

Would you rather a bird drop something on top of your head, or in your eye ? (grin)

 

I suppose it depends whether birds or barrels populate the places you frequent.

[Allan F]

I don't really believe the "rules of evidence" are formulated with the goal of "finding the truth", for as you say it is an "adversarial" system, not a "scientific" one (i.e truth finding enterprise). The goal is to "win", truth has little to do with that - it is only a tool to be used, abused, and manipulated in the real goal of winning.

That's your opinion. The rationale for the adversary system is that each side will put forward its best case and attempt to demonstrate the weaknesses in the opposing case. They proceed in this fashion, to use your term, "in order to win", from which the trier of fact (judge or jury) attempts to determine the truth. You are looking at it only from the advocate' or lawyer's side, and not from the perspective of the one who decides the case. You are probably not conversant with the importance of cross-examination as a tool for testing the quality of evidence and getting at the truth, or lack of it. Judges ultimately govern the conduct of trials, not the lawyers.

 

You offer an opinion on the "rules of evidence" as if you are familiar with them. If you are not a lawyer or you have not studied and understood the rationale underlying the rules of evidence, you are in no position to provide informed comment on them. In matters of human behaviour that become the subject of legal proceedings, things are rarely black and white or absolute as they are in science. The adversary system may not be pretty, but it works remarkably well most of the time.

[Don Hills]

I suppose it depends whether birds or barrels populate the places you frequent.

 

 

In Sandy's case, it's drop bears.

[sandyk]

In Sandy's case, it's drop bears.

 

Don

I would have thought that you would be better off looking down at the ground for rapidly opening fissures, than looking for cracks in the sky.

 

Alex

[David Bostock]

I'm not sure what this thread is about, because this guy's on my ignore list...

[crenca]

That's your opinion. The rationale for the adversary system...

 

 

Yea (and to start the motorboat) but but but...opinion is all we have, and indeed it is the law of the land:

 

 

“At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe...”

 

 

I submit such radical subjectivism and “opinion” at the very heart of the law is not of course a metaphysical “truth” or even a result of the cultural winds (i.e. a fad that will soon pass), but rather a result of the very process of the “adversarial system” itself – simply a necessary outcome of the very foundations of our legal system

 

 

You offer an opinion on the "rules of evidence" as if you are familiar with them. If you are not a lawyer or you have not studied and understood the rationale underlying the rules of evidence...

 

 

True I am not a lawyer, but I am a philosopher (or at least I play one on TV ) and recognize a crass appeal to authority. My point is that it does not matter what they are. I might approve and agree with them, or they could be as perfect and irrefutable as the sum of 1+1, but it does not matter because they are embedded in the larger context of the adversarial system and it is this larger context that matters (i.e controls) in the end.

 

 

 

 

The adversary system may not be pretty, but it works remarkably well most of the time.

 

 

This is of course the narrative, and has been for hundreds of years. It is the propaganda (yep, I meant to use that word) that an entrenched system uses to defend itself. The truth of the matter (which is that it barely works when it does, and it very often does not work at all - I won't link the groups who are doing good work freeing those falsely condemned) bounces off the narrative like a bug on a windshield. Oh well, I am at the end of the day an optimist and I like to think that perhaps we are at a turning point where the fundamentals will actually be questioned...

[sandyk]

Perhaps they could use properly implemented Lie Detectors on the Lawyers to see if they believe their clients ? (grin)

 

 

 

 

 

 

 

Only joking

[17629]

Strict liability applies in at least two areas of the law that I can think of offhand: Public wrongs (crimes or regulatory violations) and private wrongs (torts). Each crime or tort has fundamental *elements* that must be proved. Some crimes and torts have one or more elements regarding intent or state of mind, which may be a requirement that the action was purposeful (e.g., first degree murder must be willful and premeditated), or that some other culpable state of mind exist (e.g., many torts require negligence, which I'll loosely define as a lack of the care a reasonable person would take in the circumstances). If one or more elements that require a particular state of mind can be substituted by something else (e.g., first degree felony murder, where a homicide takes place in the commission of another felony, or statutory rape, where the victim's state of mind - lack of consent - is presumed due to youth), this is called "strict liability." Note this does not necessarily remove intent from examination altogether: for felony murder, it might be necessary to prove intent to establish the underlying felony.

 

Although it might not be necessary to prove a particular state of mind to establish such crimes, violations, or torts, there are still necessary elements of each of these for which reliable evidence must be provided. I think most people have experienced a police officer or judge adjusting down their speed on a moving violation, or giving some other sort of break on another type of traffic violation, simply in order to avoid you fighting the thing and causing more time and trouble for everyone (e.g., the necessity for the officer to take time off the job to show up in court and testify to the reading on his radar gun, the necessity to show the gun was properly calibrated and maintained, etc., etc.). Because of this, strict liability crimes and torts may present as much latitude for negotiation and settlement as those that require proof of intent, no bribery required.

 

In fact, a crime or tort that ordinarily requires a showing of culpable state of mind may turn out to be easier to prove than the elements of a strict liability violation. There is a doctrine in tort law known as res ipsa loquitur ("the thing itself"), where the event that caused harm is itself considered all the proof needed of negligence: think of surgical instruments left in a patient. You were asleep, but your lack of knowledge of events is no problem; that hemostat in your abdomen is all the evidence required to show *someone* failed to exercise ordinary care. (The very first case establishing this doctrine concerned a poor unfortunate walking past an establishment when a barrel rolled out a second floor doorway and descended on him. He could not, obviously, testify as to the chain that resulted in the tragic event; but the court held that in the absence of ordinary care, barrels do not as a rule come flying out of second floor doorways, and thus this fact in itself established negligence.)

 

Remember: look up.

 

Last night after you told me I was wrong, I saw where I messed up overall. But just to clarify, tell me if I have this right. In NY, if you get a speeding ticket its considered strict liability because you can't use a defense like "didn't realize I was going that fast" or "I didn't mean to". In most other crimes, you intent is taken into account. Also, and I don't know if this is part of strict liability or not, but in NY if you get the speeding ticket I just mentioned, you can't plead guilty to a lesser charge. The only way out is to beat it in court (which is almost impossible anyway). The Cop can't give you a break even if he wanted to.

[17629]

I almost forgot. Thanks for taking the time to give such a detailed answer.

[Allan F]

Yea (and to start the motorboat) but but but...opinion is all we have, and indeed it is the law of the land:

There is a fundamental difference between an opinion offered by someone with a knowledge of the underlying subject matter and one that lacks that basis of knowledge. Everyone is entitled to an opinion but, absent a knowledge of the subject, that opinion is worth very little weight.

 

Would you care to share the source of your great knowledge that allows you to pontificate about "truth"? Spouting metaphysical bullshit does not, IMO, cut the mustard. And, FYI, a combination of knowledge of the law and over 26 years of personal experience is hardly an "appeal to authority".

[Jud]

Last night after you told me I was wrong, I saw where I messed up overall. But just to clarify, tell me if I have this right. In NY, if you get a speeding ticket its considered strict liability because you can't use a defense like "didn't realize I was going that fast" or "I didn't mean to". In most other crimes, you intent is taken into account. Also, and I don't know if this is part of strict liability or not, but in NY if you get the speeding ticket I just mentioned, you can't plead guilty to a lesser charge. The only way out is to beat it in court (which is almost impossible anyway). The Cop can't give you a break even if he wanted to.

 

You're correct that a speeding violation does not require a particular state of mind. A "lesser charge" takes place in the way I mentioned previously, where (unless you're being a dick or it's just too egregious to let go or maybe the cop is having a bad day) the speed that's written on the ticket is usually somewhat less (therefore lesser fine, fewer points on your driving record) than how fast you were actually traveling, the implication being "I've been nice, your life hasn't been unduly complicated, now please don't complicate my life by forcing me to show up in court over this." And if it's serious enough that you challenge it in court, don't know about where you live, but here the magistrates or justices of the peace have a reputation for being willing to take a few mph off (again unless you're a dick, it's too egregious to let go, or the magistrate's having a bad day).

 

I almost forgot. Thanks for taking the time to give such a detailed answer.

 

No problem.

[Jud]

There is a fundamental difference between an opinion offered by someone with a knowledge of the underlying subject matter and one that lacks that basis of knowledge. Everyone is entitled to an opinion but, absent a knowledge of the subject, that opinion is worth very little weight.

 

Would you care to share the source of your great knowledge that allows you to pontificate about "truth"? Spouting metaphysical bullshit does not, IMO, cut the mustard. And, FYI, a combination of knowledge of the law and over 26 years of personal experience is hardly an "appeal to authority".

 

Coincidentally in order to maintain my license I took several continuing legal education courses online today, as it happens all about ethical requirements. All joking aside, I think most people would be utterly shocked at how many things they would consider simply clever practice that can get you disbarred if you are an attorney. One example: You have your secretary "friend" someone on Facebook who is suing your client for personal injury and permanent disability, so you can get their vacation photos showing them hauling up a big one while out deep sea fishing. Smart, right? Nope, dishonest and disbarment. (That doesn't mean the other guy wins by being dishonest. It means there's a proper, court supervised way to go about it, which is to request an order from the court that the fellow turn over his Facebook user name(s) and password(s) during what is called the "discovery" phase of litigation. And the other guy's lawyer better advise him not to take those photos off the site, or it's spoliation of evidence, big trouble.)

[Allan F]

All joking aside, I think most people would be utterly shocked at how many things they would consider simply clever practice that can get you disbarred if you are an attorney.

True, Jud, but it's much easier for people to go on ignorant rants about how the legal system encourages lawyers to seek anything but the truth, how the rules of evidence do the same, etc. Nor do they have a clue about the role of the institutions that govern members of the legal profession. In Canada, the law societies of each province set professional and ethical standards, hear complaints against members and, where appropriate, dispense discipline in terms of fines, suspensions or disbarments for unethical, unprofessional, or unlawful conduct. And most law societies include lay members in addition to lawyers on their various committees.

 

I concede, however, that there never will be a "Treat a Lawyer to Lunch Day".

[Priaptor]

There is a fundamental difference between an opinion offered by someone with a knowledge of the underlying subject matter and one that lacks that basis of knowledge. Everyone is entitled to an opinion but, absent a knowledge of the subject, that opinion is worth very little weight.

 

I couldn't agree more.

 

Unfortunately the Internet has created too many experts who really know little about what they claim.

 

As you know I am a conservative. However I read all sides of the argument no matter how biased I am in one direction at the start. Knowledge is something people want to shortcut. In fact most of my reads regarding SCOTUS, for example, were books by liberals justifying interpretation and activism.

[sandyk]

I imagine though, it must be more than a tad unpleasant for you when defending to the best of your ability, somebody that you know for certain is as guilty as hell?

[Allan F]

As you know I am a conservative. However I read all sides of the argument no matter how biased I am in one direction at the start. Knowledge is something people want to shortcut. In fact most of my reads regarding SCOTUS, for example, were books by liberals justifying interpretation and activism.

I suspect that we have very different views about the SCOTUS and its more controversial judgments. Regardless, what is unfortunate in my view, is how politicized appointments to that highest Court have become, as evidenced by the current impasse over the appointment of a replacement for Justice Scalia. If members of the Senate don't want to confirm Obama's nominee, I don't see why they won't do their constitutional duty and just vote accordingly, instead of refusing to do so for purely political reasons. Just my opinion, of course.

[esldude]

You're correct that a speeding violation does not require a particular state of mind. A "lesser charge" takes place in the way I mentioned previously, where (unless you're being a dick or it's just too egregious to let go or maybe the cop is having a bad day) the speed that's written on the ticket is usually somewhat less (therefore lesser fine, fewer points on your driving record) than how fast you were actually traveling, the implication being "I've been nice, your life hasn't been unduly complicated, now please don't complicate my life by forcing me to show up in court over this." And if it's serious enough that you challenge it in court, don't know about where you live, but here the magistrates or justices of the peace have a reputation for being willing to take a few mph off (again unless you're a dick, it's too egregious to let go, or the magistrate's having a bad day).

 

 

 

No problem.

Completely different than where I live. Taking a bit off? Not a chance no matter how you act. One place in the town I went to high school regularly just made up numbers even if going a legal speed. That only changed somewhat when a governor's aide got pinched exactly that way. As in written a hefty ticket for no reason. When it was over the chief was allowed to retire early and for some period of time local judges assumed if the accused complained the claimed ticketed speeds were bogus.

[Allan F]

Completely different than where I live. Taking a bit off? Not a chance no matter how you act. One place in the town I went to high school regularly just made up numbers even if going a legal speed. That only changed somewhat when a governor's aide got pinched exactly that way. As in written a hefty ticket for no reason. When it was over the chief was allowed to retire early and for some period of time local judges assumed if the accused complained the claimed ticketed speeds were bogus.

What is far more typical, in my view, is for law enforcement to allow a certain leeway over the speed limit, thus exercising some discretion before deciding to charge a speeding driver. I can't say that I've seen officers write a speed on a ticket that is lower than what is indicated by their radar. A possible exception may be where the speed is just marginally over an "excessive speed" figure that attracts a higher penalty, and the driver is not otherwise driving dangerously or acting "like a dick".

[wwaldmanfan]

Here in NJ, some officers are Nazis, others more forgiving. I've been given a $100 ticket for doing 37 mph in a 25 mph zone two blocks from my house. It was at the bottom of a steep hill, the cop was hiding in the dark, I was the only car on the road within sight, and I didn't even have my foot on the accelerator pedal. I didn't say a word, or even make eye contact with the cop, just took the ticket.

 

If you go to court, you are going to pay the fine. Your hope is to have the points expunged from you record. They expire in a year anyway, so, most people just pay the money. However, on the highways, you can usually drive 10-15 mph or more over the limit without a hassle.

 

i drove on the Audobahn in Germany. Although there are posted speed limits, I had my cheap rental car floored at about 105-110 mph, and I was getting passed by Porsches and Benzes like I was standing still. Never saw a cop. It was a rush.

[Allan F]

i drove on the Audobahn in Germany. Although there are posted speed limits, I had my cheap rental car floored at about 105-110 mph, and I was getting passed by Porsches and Benzes like I was standing still. Never saw a cop. It was a rush.

It is my understanding that the cops drive Porsches in certain places on the Autobahn in Germany.

[Priaptor]

Here in NJ, some officers are Nazis, others more forgiving. I've been given a $100 ticket for doing 37 mph in a 25 mph zone two blocks from my house. It was at the bottom of a steep hill, the cop was hiding in the dark, I was the only car on the road within sight, and I didn't even have my foot on the accelerator pedal. I didn't say a word, or even make eye contact with the cop, just took the ticket.

 

If you go to court, you are going to pay the fine. Your hope is to have the points expunged from you record. They expire in a year anyway, so, most people just pay the money. However, on the highways, you can usually drive 10-15 mph or more over the limit without a hassle.

 

i drove on the Audobahn in Germany. Although there are posted speed limits, I had my cheap rental car floored at about 105-110 mph, and I was getting passed by Porsches and Benzes like I was standing still. Never saw a cop. It was a rush.

 

These are "laws" that have no real benefit to society other than to collect taxes. Most police today are saddled with the job of tax collector through these absurd fines rather than protecting civilians. Trust me, when you have laws like this, where cops are saddled to collect taxes for "violation of dumb laws" there will be negative outcomes such as the death of Eric Garner. Don't blame the police blame your law makers.