Friday, January 28, 2011

Procedure is not Truth

After one too many episodes of Law and Order, I continue to be frustrated with the way our system enables those who are found not guilty because of procedural issues, with the consequence that those with enough money to hire clever enough lawyers have a much better chance of getting off than someone without resources.

Of course this does not mean that those without resources who are found guilty are not guilty.  It just means many who should be found guilty are not.

The logical fallacy of letting someone off because their Miranda rights weren't read to them or because evidence was found without a search warrant is heinous.  The question of justice is a question of truth and guilt, not one of procedure.  I understand that these "rights" were instituted to protect the innocent and to prevent corruption (I personally reject the notion of intrinsic rights on any subject, only common responsibilities toward others).  But if it were at all possible these two issues should be separated.  The police should get in trouble for not following proper procedure and the guilty should be found guilty, regardless of the procedure by which their guilt was discover.

Sure, make the stakes high for a police person who does not follow the proper procedure, especially if the person is found not guilty.  Maybe even kick them off the force or suspend them without pay for six months.  Make the stakes high for not following procedure.  But, somehow, it ultimately has to be about guilt or innocence, not a ridiculous game that makes us a laughing-stock and that favors not the innocent, but the guilty.


James Petticrew said...

I quite like the continental system of having an investigating magistrate whose remit should be to find the truth, rather than simply being part of system which marshals evidence for (prosecution)or against (defence) the guilt of the accused.

if there was some way of further developing that system where instead of simply a court case being an adversarial gladiator contest with emphasis on procedure it was an attempt to discover the truth, I think that justice would be better served.

Sadly I don't ever see Scots Law developing that way, too many vested interests

Angie Van De Merwe said...

I wouldn't want to live in a country where I feared police intruding into my home to "confiscate" my property and take me to jail, without recourse, just because someone had a vendetta against me. I'm sure you wouldn't want that either.

Such a life would be stressful and terrifying, always on 'pins and needles" about what you did or didn't do to appease the "proper people". One is guilty until the proper authorities determine his innocence.

Psychologically, such an arbitrary system would be intimidating and terrifying to the average citizen. So, I don't know why you wouldn't want to defend intrinsic rights.

And isn't this is the system that ruled in the Salem witch trials? Calvin's Geneva? Mussolinni's Italy? Stalin's Russia? Ammin's Uganda?

Ken Schenck said...

I'm not saying we should do away with warrants or Miranda "rights." I am saying the issue of procedural misconduct should be treated separately from the question of guilt or innocence.

By the way, you of all people have no basis for believing in intrinsic rights. You have questions about any universal Guarantor of them and it is clear there is no molecular or natural basis for them. ;-)

Angie Van De Merwe said...

But, I am also not defending illegals a "right to justice" in OUR courts, when they have already broken the law by being here. Citizens are protected, not illegals.

Whenever we dissolve procedure, we have also dissolved the checks and balances in our system. Power must be checked by such laws.

Isn't the lack of procedure what we see in this adminstration in appointments, unchecked power over healthcare, etc.? And isn't this what the "Tea Party" wants to protect?

Angie Van De Merwe said...

"Good govenment" must be good apart from "God". It is good for all people, as it is based on equality under law, not some arbitrary claims of "God".

Ken Schenck said...

As far as I can tell, the only coherent basis for our system of government is the notion of a social contract, which is actually the philosophical basis from which it sprung. In John Locke's terms, those who are here are bound by the contract by "tacit consent," which would include illegals. They are not allowed to steal, etc, realizing that they are intrinsically in violation of the contract by being here illegally.

However, there is nothing about a social contract that prescribes what we do with illegals.

I am not dissolving procedure in any way, simply saying they are not ends in themselves but means to ends. Whenever procedures become ends in themselves, they become counterproductive.

Ken Schenck said...

In the words of the Woody Allen film, Crimes and Misdemeanors, if a person can get away with a crime and not be bothered by the consequences, there is no basis for saying a person has done anything wrong. If there is no Power to insure justice on a macro-scale, then you have no basis Angie for saying there is anything wrong with a dictator doing anything he or she wants with his or her power. You can only say you don't like it before they blow your brains out and your animal body stops functioning only to decay into nothingness.

FrGregACCA said...

"After one too many episodes of Law and Order,"

Indeed. I'm not sure what the greater problem is: guilty people getting off, on technicalities or otherwise, or not-guilty people being convicted or forced into a plea bargain. When there is a possibility of capital punishment, the second situation is obviously the more serious.

There is also the issue of race and poverty. If one is indeed found guilty of something, one is more likely to be incarcerated if one is non-white and/or poor.

Angie Van De Merwe said...

Isn't our Constitution the basis for protection on a "macro scale" of citizen's rights? Doesn't it balance power, and hold accountable the branches of government so that "absolute power" doesn't have claim without accountability?

So, I agree with you about accountability. It is for those in position of power, as well as the average citzen.

Social contract means that we approve of being governed by the Constitution, as that is our protection, under law.

π² said...

Adam: Wait, You can't kick me out of the Garden.

God: You confessed.

Adam: But you didn't tell me my words could be used against me.

Ken Schenck said...


Angie Van De Merwe said...

Yes, and this is why Luther was excommunicated, as he questioned the "sacred". Such it is with "blaphemy laws"....

Brian Small said...

I agree; I've thought the same thing.

FrGregACCA said...

"Better that 30 guilty men go free than one innocent man be hanged." - Old Anglo-Saxon legal maxim

Angie Van De Merwe said...

I like your/that comment/quote.