Thursday, October 15, 2009
Thoughts ...
I can't get into any detail about what brings on these questions, but recent events do have me thinking ...
Supposed person A allegedly assaults or harasses person B. It somehow seems inappropriate to bring up any past history of B's behavior, etc. as if person A did assault or harass person B, it is still a crime or tort (depending on the nature of the action) no matter "what kind of person" is person B. However, naturally person A will have his/her own version of what happened. And whether or not this version is reasonable (and hence casts a reasonable doubt in person B's story or even whether one judges person A's story to have the preponderance of evidence in favor of it) depends very greatly on what kind of person B is, doesn't it?
How does one set up a system that still presumes innocence of the accused yet also ensures accusers that they won't effectively be put on trial? For that matter how do you set up a system that presumes innocence of the accused yet allows both "sweet innocent" victims and well "not so innocent" victims to both receive justice since their innocence is anyway not the issue if the accused really did what s/he is accused of doing (although it does point to how reasonable the doubts raised by the accused are).
*
How much can our society expect us to be lawyers? In a trial or hearing lawyers may ask you questions and depending on how you answer, this can effect the outcome of the trial/hearing. So of course you will get asked to remember precisely things which happened a long time ago, and failure to answer questions could result in contempt and not phrasing answers 100% "correctly" could result in your testimony being construed to mean something completely different than what you meant.
Now a lawyer would know when certain events occur to immediately start writing things down. But what of us non-lawyers? Does the legal system expect us to go through life notebook in hand, pausing to write everything down -- even when such writing things down could then be used against us: "why were you writing down what you did rather than responding to the problem at hand?"? Does the legal system expect everyone to know exactly what a lawyer would find important to remember and thus to write everything down? Does the legal system expect us to always use proper-lawyer language to express ourselves and consider it ok that if a layman uses non-legal language that his/her words will get misconstrued by the court?
Of course, in Jewish law, this is all simplified -- everybody is expected to be a lawyer (and my previous kasha above is also simplified in Jewish law -- you can make an end-run around presumption of innocence in such sensitive cases because often the accused would at least be patently guilty of violating a fence around the law). But we do not live under Mosaic law (perhaps the religious right is correct and we should? but somehow I don't think they'd like living under such a law ... at least in the sense that I am talking about here) -- if our society expects us to all be lawyers, why isn't being a lawyer part of high school? Why do you have to go to law school to be a lawyer even if, once the legal apparatus is put into motion, we will be expected to use the correct legal terms, have written exactly the kinds of notes of the event in question that a lawyer would write, etc.?
Supposed person A allegedly assaults or harasses person B. It somehow seems inappropriate to bring up any past history of B's behavior, etc. as if person A did assault or harass person B, it is still a crime or tort (depending on the nature of the action) no matter "what kind of person" is person B. However, naturally person A will have his/her own version of what happened. And whether or not this version is reasonable (and hence casts a reasonable doubt in person B's story or even whether one judges person A's story to have the preponderance of evidence in favor of it) depends very greatly on what kind of person B is, doesn't it?
How does one set up a system that still presumes innocence of the accused yet also ensures accusers that they won't effectively be put on trial? For that matter how do you set up a system that presumes innocence of the accused yet allows both "sweet innocent" victims and well "not so innocent" victims to both receive justice since their innocence is anyway not the issue if the accused really did what s/he is accused of doing (although it does point to how reasonable the doubts raised by the accused are).
*
How much can our society expect us to be lawyers? In a trial or hearing lawyers may ask you questions and depending on how you answer, this can effect the outcome of the trial/hearing. So of course you will get asked to remember precisely things which happened a long time ago, and failure to answer questions could result in contempt and not phrasing answers 100% "correctly" could result in your testimony being construed to mean something completely different than what you meant.
Now a lawyer would know when certain events occur to immediately start writing things down. But what of us non-lawyers? Does the legal system expect us to go through life notebook in hand, pausing to write everything down -- even when such writing things down could then be used against us: "why were you writing down what you did rather than responding to the problem at hand?"? Does the legal system expect everyone to know exactly what a lawyer would find important to remember and thus to write everything down? Does the legal system expect us to always use proper-lawyer language to express ourselves and consider it ok that if a layman uses non-legal language that his/her words will get misconstrued by the court?
Of course, in Jewish law, this is all simplified -- everybody is expected to be a lawyer (and my previous kasha above is also simplified in Jewish law -- you can make an end-run around presumption of innocence in such sensitive cases because often the accused would at least be patently guilty of violating a fence around the law). But we do not live under Mosaic law (perhaps the religious right is correct and we should? but somehow I don't think they'd like living under such a law ... at least in the sense that I am talking about here) -- if our society expects us to all be lawyers, why isn't being a lawyer part of high school? Why do you have to go to law school to be a lawyer even if, once the legal apparatus is put into motion, we will be expected to use the correct legal terms, have written exactly the kinds of notes of the event in question that a lawyer would write, etc.?
# posted by alberich @ 12:08 PM 
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