Is society too heavily weighed in favour of the perpetrator and not the victim?

[lawrocket 3]

Quote

Yes a fair trial is a must, but whos definition of fair, The victims or perpetrators?

Neither's. Our society's view of what's fair. The victims won't think it's fair when certain evidence is excluded on the basis of evidentiary rules and extrinsic policies. The perps won't think it's fair when the jurors are all law-abiding members of the middle class.

My wife is hotter than your wife.

[Richards 0]

Quote

So with police chases you say it's a good idea to pursue and kill innocent people as the perp runs lights?

Straw man argument. I merely stated that we should not cease to pursue, because some selfish criminals will take risks with other peoples lives. It is better to come up with a law that places extremely heavy penalties on people who injure/kill people while leading the police on a chase.

Quote

But as far as the logic goes, harsher punishment leads to essentially drawing teh line in the sand, only problem is when innocent people die in the process.

[Richards 0]

Quote

Most criminals don't have complex thought processes and teh ones that do rarely get caught. I don't see criminals factoring in the possibility of getting caught.

Actually criminals only differ from the rest of society in that they lack the moral restraint to refrain from taking what others have earned. They have the same mean IQ of society as a whole and the same variance.

Quote

I understand your position and frustration with crime, but to lower the iron fist is unworkable, unrealistic and fruitless.

[Richards 0]

Quote

Neither's. Our society's view of what's fair. The victims won't think it's fair when certain evidence is excluded on the basis of evidentiary rules and extrinsic policies.

If we know that certain evidence will provide truth why deny it based on procedural stuff. I recall it is about justice, not beauracracy.

Quote

The perps won't think it's fair when the jurors are all law-abiding members of the middle class.

[brierebecca 0]

Quote

If we know that certain evidence will provide truth why deny it based on procedural stuff. I recall it is about justice, not beauracracy.

Are you really arguing that we should deny accused people their procedural due process rights in the name of justice?

Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[ExAFO 0]

The Criminal justice system could take quite a few lessons in efficiency and fairness from the UCMJ.

Illinois needs a CCW Law. NOW.

[Richards 0]

Quote

Are you really arguing that we should deny accused people their procedural due process rights in the name of justice?

No. I am just saying that evidence which is pertinent to determining the truth should not be denied. I would be equally angry if a defendants evidence was denied based on beauracracy. It is about finding out what really happened, who is responsible, and what to do about it. It should not be about how, someones defense attorney can use slimy procedural techniques to block critical evidence. This relates to a much earlier thread that went back and forth. I simply feel that we need to be carefull to recognize where strict application of the law violates the spirit in which a law was intended, and remedy it when it happens.

Richards

My biggest handicap is that sometimes the hole in the front of my head operates a tad bit faster than the grey matter contained within.

[lawrocket 3]

Quote

If we know that certain evidence will provide truth why deny it based on procedural stuff. I recall it is about justice, not beauracracy.

There are plenty of reasons. Generally they are based on:

1) Trustworthiness;
2) Relevance;
3) Fairness;
4) Extrinsic policies.

Trustworthiness? Let's say someone testified that he fingered you in a lineup. Yet, the night before he fingered someone else. That person's testimony that you did it, while probative, may not be trustworthy enough and may confuse a jury.

Relevance? OJ says, "I didn't kill her." Evidence of his prior beatings does not come in. Had he said, "I loved her and I wouldn't ever hurt her" then the evidence is relevant and it comes in.

Fairness? Let's say, for example, John Doe is accused of grand theft of an auto. He had a conviction for misdemeanor petty theft ten years ago, and another one for domestic violence 6 years ago.

The prosecution can't introduce evidence of those prior crimes to the jury. Just because he has committed crimes in the past doesn't mean he committed this one (with very limited exceptions, i.e., a crime was committed that was his past modus operendi).

Other fairness? Let's say that the prosecution brings in charred remains of a murder victim to the jury room, so the jury can get the site and smell of the death. Well, that's only to inflame the passions of a jury to make an emotional decision. That's not fair. Sure, it's probative, but it can lead juries wanting someone to be punished for it.

Extrinsic policies? Sometimes public policy is more important. Let's say someone trips on your sidewalk because a tree root pushed up the concrete. You get sued but deny any liability. Still, you fix the sidewalk.

Now, the fact that you fixed the sidewalk indicates that you knew it was dangerous. If you didn't think so, why did you fix it? It's pretty strong evidence of an admission that it was defective.

But that evidence of subsequent remedial measures won't come in. It's better, policy wise, to let people fix a dangerous condition so others don't get hurt rather than maintain the danger to avoid liability in the present case.

It just makes sense, doesn't it?

My wife is hotter than your wife.

[kelpdiver 2]

Quote

Constitutional rights don't just go away because we don't like a person, or because they've done a bad thing. If they did, they wouldn't be rights.

Newbie is talking about England. Our constitution is not relevent there.

In the US, the overall trend has been in the opposite direction, to quickly giving people life sentences, and to mandate longer minimum sentences for felonies in general. But our justice system is moving much more slowly in that direction. For the most part, it still favors the defendent to minimize the number of false convictions.

[Andy9o8 2]

OK, folks, here’s the real-world reality (Note: my remarks are confined to the US).
Most people get the impression that the criminal justice system is weighted in favor of defendants. They’re influenced by the slant on police shows, or anecdotal evidence from individual examples of a ridiculously lenient sentence by a particular judge, or the catch-all cliche “getting off on a technicality”, or the outrage of the OJ Simpson verdict, etc., etc., etc.

As someone who has practiced a pretty fair amount of both prosecution and criminal defense in an urban jurisdiction, I can tell you that that’s simply not the case.

“Soft on crime” is sort of like “flag burning”, or “discrimination against Christians in the US” – each is a guaranteed hot-button issue that gets demagoged by politicians and talk-show hosts, but if you really take the time to learn the facts, you’ll see that the “epidemic” of any of those things is mainly in people’s minds.

The real world truth is – in actual practice – the criminal justice system is very heavily, lopsidedly weighted in favor of the prosecution. Pretrial bail is routinely set very high, mainly as a (pre-conviction!) punitive measure, even though, Constitutionally, the function of bail is to guarantee appearance at trial, not to punish. Pretrial motions to exclude evidence are incredibly hard for a defendant to win, even in crystal-clear cases of illegal search and seizure, or illegally-obtained confessions, etc., because judges, being political animals, don’t have the guts or intellectual honesty to ever make a ruling implying they don’t believe a police officer. Most Caucasian jurors, in their heart of hearts, believe that if a person has been arrested, he must be guilty of something. And if you think there’s an “epidemic” of lenient sentences being handed down in the US, that’s wrong, too. Judges hate being in the position of being accused by some politician of being “soft on crime”, and a lot of them are former prosecutors themselves, so they routinely err on the side of very heavy sentences.

Now, I’m not even getting into the issue of what, as a matter of social policy, is good or bad policy. I’m just letting you know what the true, real-world facts are, as they actually play out in the trenches of the courtrooms.

[brierebecca 0]

Quote

No. I am just saying that evidence which is pertinent to determining the truth should not be denied. I would be equally angry if a defendants evidence was denied based on beauracracy. It is about finding out what really happened, who is responsible, and what to do about it. It should not be about how, someones defense attorney can use slimy procedural techniques to block critical evidence.

I wouldn't call 4th amendment challenges a slimy procedural technique, but that is undoubtedly the evidence to which you refer, correct? (If you don't know what I'm talking about, I'm not going to explain the 4th amendment to you - look it up.) However, as someone pointed out to me, this thread was supposedly about the English justice system (although I don't remember seeing anything in the original post), so I'll stop trying to defend the rights guaranteed to all US citizens and illegals on US soil.

Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[Andy9o8 2]

Quote

No. I am just saying that evidence which is pertinent to determining the truth should not be denied. I would be equally angry if a defendants evidence was denied based on beauracracy. It is about finding out what really happened, who is responsible, and what to do about it. It should not be about how, someones defense attorney can use slimy procedural techniques to block critical evidence.

You demonstrate a breathtaking lack of understanding of the true meaning of the concept "rule of law". If you were raised and educated in any democratic country, you must have been reading comic books instead of paying attention during civics class.

[Trae 1]

in reply to "I'm not talking about going the OTHER way and advocating a draconian punishment system where any crime gets you 5 years in prison, but does anyone know where i'm coming from on this? "

.........................................

yep got a feel for it. You sound like a reasonable person.
Most western criminal prosecution court systems rely on proving guilt beyond reasonable doubt.

This emphasis and reliance on being "reasonable " is where things can come unstuck.
What is reasonable for you may be very different to what is reasonable for others.

As some-one who has been wrongfully convicted I have got to see this whole thing from the inside. From the outside it's just more of the old "of course they're gonna say they didn't do it" .
Such an attitude removes the need to explore the persons claims of innocence....for unreasonable people.

In a lot of cases true guilt is not reasonably proven at all.

Assumptions are made in a court of law all the time.
A jury will assume a person is guilty "otherwise why would the police/prosecutors be telling them so?"
If you are standing there in the dock in handcuffs with an extra police guard then most "reasonable" jurors are gonna think you're guilty as sin...even before it's 'proven' by selective use of evidence.

Over time the whole legal system has been tweaked so that reason is now a mutable thing....mutable by money, power and influence or even the clothes ,skin or hair that you wear .

Many legal cases rely on impressions rather than facts.
If a person can be made to look guilty then a weak system will accept that ...even if it's not truly proven that the person is guilty.

eg a black man in an outback trial is more likely to be found guilty than a white footballer hero. Also the black man will get the less skilled legal representation.

This sort of thing happens all the time. That's one reason why minorities make up disproportionate % in gaol populations.

I've heard decent prosecutors state that they would prefer to let 100 guilty people free rather than convict 1 innocent person.

In reality the odds are more likely to be the other way around ie 100 innocent people get convicted and 1 guilty person gets set free.
In my experience most truly guilty people plead guilty...and we're not talking high level crime here...more like low level assault and drunken violence. If they plead not guilty to one crime they will often/usually plead guilty to slightly lesser charges and take the lesser punishment that goes with it. The system often relies on such things.

Believing that real life lawyers have the zeal of TV serial lawyers is ludicrous when you've come close to the REAL thing.

if you've got lots of money to throw at high class lawyers ?? then sure you've got a chance at receiving some justice.
If not you just gotta be happy wih what you get.
Once convicted, even wrongfully then you got to prove your innocence.

And that my friend is a whole different ball game.

[Richards 0]

Quote

You demonstrate a breathtaking lack of understanding of the true meaning of the concept "rule of law". If you were raised and educated in any democratic country, you must have been reading comic books instead of paying attention during civics class.

[Newbie 0]

This is what i was getting at...

http://observer.guardian.co.uk/politics/story/0,,1774399,00.html

Quote

Tony Blair is planning a radical overhaul of Britain's controversial human rights legislation after claims that the present laws put the rights of criminals above those of victims.
In a move which brought immediate criticism from human rights' experts, the Prime Minister wants the government to have the power to override court rulings. The move comes only days after Blair criticised a senior judge for preventing the deportation of nine Afghan refugees who hijacked a plane to Britain. Downing Street said he was determined to find a way around such 'barmy' court rulings.

Blair unveiled his plans in a letter to the new Home Secretary, John Reid, in which he set out his 'most urgent policy tasks'. Legal experts and civil liberties groups accused Blair of playing politics with fundamental rights. The Observer has obtained a copy of the letter, which says it is essential to 'ensure the law-abiding majority can live without fear'.

It adds: 'We will need to look again at whether primary legislation is needed to address the issue of court rulings which overrule the government in a way that is inconsistent with other EU countries' interpretation of the European Convention on Human Rights.'

A Downing Street source said a range of existing laws could be reviewed and new legislation was also possible. One option under consideration was to amend the 1998 Human Rights Act, which wrote the European Convention into British law, to require a 'balance between the rights of the individual and the rights of the community to basic security.' He said that 'although British judges should already take that balance into consideration, it's clear that sometimes they don't'.

He said the act could be further amended if British courts blocked moves to deport terror suspects on the basis of 'memorandums of understanding' that they would not be tortured. A further possibility would be for Britain to consider withdrawing from specific clauses of the European rights convention if they led to court rulings which placed 'community safety' at risk.

Blair's letter, one of a series to be released this week setting out his policy priorities for the major government departments, also stressed the need for Reid to deal urgently with the scandal of foreign prisoners which forced Charles Clarke out of the Home Office. In addition, the Prime Minister endorsed calls by the government's probation service watchdog for a tightening up of rules for the release of violent offenders after a rapist, Anthony Rice, went on to murder 40-year-old Naomi Bryant. The report said probation staff had been so 'distracted' by Rice's human-rights claims that they lost sight of their duty to protect the public.

But Shami Chakrabarti, director of the rights group Liberty, denounced Blair's initiative. 'This government is addicted to quick-fix legislation to distract attention from maladministration,' she said. 'Tough talk and tough legislation don't ensure that the prison service is run properly, or the probation service is run properly.'

'The sinister twist in this case is that the government's own Human Rights Act is being used as the target for tough talk. In fact, it's a very tame piece of rights legislation that doesn't, for instance, allow the courts to trump Parliament. Still, it is an important framework to give the courts a say to prevent the worst excesses of authoritarian government.'

Anthony Lester, the human rights lawyer and Liberal Democrat peer, was particularly scathing about Blair's response to the Afghan ruling: 'The Human Rights Act was one of the first constitutional reforms of this government, but the Prime Minister persists in undermining public confidence in the rule of law and the protection of human rights by the senior judiciary,' he said.

Blair's tough policy prescription for Reid came amid growing pressure from the police for tightened sentencing guidelines for violent offenders.

The Observer has learnt that the Police Federation, which represents the interests of 130,000 officers in England and Wales, will use its annual conference this week to vote on a motion calling for the government to overhaul the current sentencing regime under which offenders can qualify for early release after serving only half their sentence. The motion is expected to get overwhelming support.

'We need to ask whether we should tell people exactly how long they will serve and they serve it, rather than telling a person they've got seven years and in three years they are out,' said Jan Berry, chair of the federation.

The conference will hear that police are concerned there are insufficient resources being devoted to the supervision of offenders in the community.

'We're not saying community sentences can't work, but we shouldn't underestimate the time and investment community sentences take if they are to work,' Berry said. 'The criminal justice system has enough trouble establishing an audit trail of foreign prisoners, let alone managing offenders in the community so that the public are kept safe.'

Q & A Human rights debate

What is the Human Rights Act?

The Human Rights Act (1998) came into force in the UK in 2000 and is viewed as a flagship piece of Labour legislation. The act incorporates into UK law the1950 European Convention on Human Rights, which makes a number of inalienable civil and political rights enforceable by the courts in England and Wales.

What does the convention establish?

The convention is divided into a series of 'articles'. Articles 2-14 establish the rights protected by the convention, such as the right to life, freedom from torture, inhuman and degrading treatment, the right to liberty and to a fair trial. Over the years a number of protocols agreed by the Council of Europe have been added to the convention. Some of the protocols deal with procedural issues, but some guarantee rights in addition to those included in the Convention. The UK has signed up to just two of the additional protocols.

Who interprets the convention?

The European Court of Human Rights (ECHR) is the international court set up to interpret and apply the Convention. Based in Strasbourg, it is made up of judges nominated by each of the member countries of the Council of Europe. Over the years there have been many cases in which the ECHR has found the UK in breach of the Convention. The fact it took so long for a British citizen to bring a case before the court was a major factor in convincing the government to incorporate the convention into UK law after Labour came to power in 1997.

Why is the Human Rights Act in the news now?

In the last week there has been widespread public disquiet at the way the act is being interpreted. Last week a judge ruled that nine Afghan asylum seekers who hijacked an aircraft to fly to Britain should not be returned to their country because to do so would be to risk subjecting them to 'inhuman or degrading treatment or punishment' and therefore a breach of their human rights. The Prime Minister described the verdict as 'an abuse of common sense'. The decision - like the claim that convicted rapist Anthony Rice, who went on to kill Naomi Bryant after release, was freed because to hold him any longer risked breaching his human rights - caused public outrage. To pillory the act, however, misses the point. The UK signed up to the convention in 1953. Even if we didn't have the act, the hijackers and Rice could have sought redress in Strasbourg. It would simply have taken them longer for their cases to be heard.

What could Tony Blair do to ensure the act wasn't interpreted in similar ways in the future?

The government is supporting a test case by the Netherlands to appeal against a ruling that prevents it from sending a suspected Algerian terrorist, Mohammad Ramzy, back to his native country. The case is wending its way through the European courts. In the interim, the new Home Secretary, John Reid, has announced that he is appealing against the decision that the Afghans must be given leave to remain and work in Britain. If that doesn't work, experts say, the government might be left with only the legal equivalent of a nuclear option. The article of the European convention under which they were originally allowed to stay - the Article Three anti-torture clause - is one of only three which member states can abandon only if they leave the convention altogether.

David Cameron has talked about pulling out of or repealing the act. Could he do that?

In theory, yes, and he first mentioned the possibility when standing for the party leadership last year, so he clearly feels it's an option. But Labour has portrayed the idea as an example of old-style Tory Euroscepticism that would in effect require leaving the EU, even though the convention has nothing to do with the EU. Cameron's aides say that the idea would be a temporary withdrawal from the European Convention with a view to negotiating 'appropriate' changes in the way clauses such as Article Three apply to deporting terror suspects or foreign criminals.

"Skydiving is a door"
Happythoughts

[miked10270 0]

The fundamental problem of the Human Rights Act is that it makes no mention of "Human Duties"! Nor does it link the two.

In effect, if you wish to be treated with respect, then treating others with the same respect should be a given. Unfortunately, the law is flawed in this respect so folk (or their lawyers) use it to further their own selfish agenda shouting about how "MY HUMAN RIGHTS" have been breached, without there being any examination of how they breached the rights of another!

That's what makes this law unworkable.

Mike.

Taking the piss out of the FrenchAmericans since before it was fashionable.

Prenait la pisse hors du FrançaisCanadiens méridionaux puisqu'avant lui à la mode.