If the record in a case established that the main evidence against the defendant was a tentative identification on which a jury might go either way without being unreasonable, it does not obviate the presumption of innocence to ask the defendant whether he has any defense to offer. A judge who was solicitious about the rights of the accused might well do that, recognizing that once the jury decided against the accused, no appeals court would vacate that decision.
The jury should of course be instructed that failure to testify or indeed to offer a defense cannot create an inference of guilt, the only question for the jury to decide is whether the government has provided its case beyond a reasonable doubt. That, btw, is a term the meaning of which is up to jury; it is never defined. The courts have consistently uphelod jury verdicts that might have gone the other way, so presumably it does not mean, absolute certainty, as it does in Bartlettland.
I don't care if Bartlett thinks I am fascist advocate of a police state, but I actually think the law on this is pretty good -- in English, not lawish. And I am a criminal defense lawyer. The problem is not that we are bulging with wrongful convictions, but that we have an excessively carcerial policy of dealing with the convicted, too litle rehabilitaion, and wildly racially unfair enforcement policies. Bartlet, as usual, is looking in the wrong place, and speaking without knowledge about the wrong issues.
jks
--- Shane Mage <shmage at pipeline.com> wrote:
> >At 10:25 AM -0700 12/9/03, andie nachgeborenen
> wrote:
> >
> >>Innocent but not wrongly convicted. the guy
> wouldn't
> >>give his alibi b/c he was in the arms of his best
> >>friend's wife. jks
> >
> >From this comment I can only deduce your philosophy
> to be that, if
> >an accused refuses to prove his innocence, then his
> resulting
> >conviction is legally correct.
> >
> >This is the opposite of the doctrine of innocent
> until proven
> >guilty. Where an accused has no responsibility to
> prove anything,
> >rather the state has the burden of proving
> everything.
> >
> >I cannot see how you can continue to maintain that
> the US legal
> >system operates according to a presumption of
> innocence in criminal
> >matters, while also maintaining that it is correct
> to convict an
> >innocent person who refuses to prove their
> innocence?
>
> You seem to forget that Justin speaks what he calls
> "lawish," not
> English. My translation of "wrongful conviction" in
> his text is
> "decided to be wrongful by an appellate court."
> Guilt or innocence,
> at least in the sense of those words held by users
> of English,
> have nothing to do with it.
>
> Shane Mage
>
> >
> >Perhaps you can explain this apparent
> contradiction? The most
> >obvious explanation is that you don't actually
> understand the
> >concept of innocent until proven guilty. Given
> that you are a
> >lawyer this would indicate that, far from innocent
> until proven
> >guilty being the presumption in the US legal
> system, it is an alien
> >concept utterly incomprehensible to that system.
> >
> >The time has come for travel warnings to alert
> people from free
> >countries to the dangers of entering within the
> jurisdiction of what
> >is for all intents and purposes a police state.
> >
> >Bill Bartlett
> >Bracknell Tas
> >___________________________________
>
>http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
>
> ___________________________________
>
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