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"The evidence has to be solid prior to arrest" | 559 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
"The evidence has to be solid prior to arrest"
Authored by: Anonymous on Thursday, January 17 2013 @ 12:56 PM EST

At heart, I would say that's quite possibly still "innocent until proven guilty".

After all.... "guilty until proven innocent" does not require solid evidence. At it's worst, it doesn't require any evidence at all... just an accusation of wrongdoing.

Under the philosophical concept of "innocent until proven guilty", the accused is entitled to:

    A: the assumption that if the evidence against is insufficient as proof, then the accused is - by default - innocent
    B: review of the evidence against and opportunity to dispute
    C: the ability to present additional evidence of innocence
So a question on the two systems you've outlined:
    If there is insufficient evidence to prove guilt - what is the default state? Is the default that the accused is innocent or guilty?
If the default is that the accused is innocent, then I'd say that supports my interpretation that - regardless of how it's worded - the philosophy applied is "innocent until proven guilty".

RAS

[ Reply to This | Parent | # ]

"USMCJ is guilty until proven innocent"
Authored by: jjs on Thursday, January 17 2013 @ 06:01 PM EST
Assuming you mean the Uniform Code of Military Justice (UCMJ), it does NOT provide "guilty until proven innocent" - but the exact opposite:

(c) Before a vote is taken of the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them--

(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;

(2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;

(3) that, if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and

(4) that the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the United States.

One aspect that the military has that the civilian courts don't is Article 32 hearings -

832. ART. 32. INVESTIGATION

(a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

(c) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross- examination, and presentation prescribed in subsection (b), no further investigation of that charge is necessary under this article unless it is demanded by the accused after he is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his own behalf.

(d) The requirements of this article are binding on all persons administering this chapter but failure to follow them does not constitute judicial error.

Source: The Air University copy of the UCMJ

---
(Note IANAL, I don't play one on TV, etc, consult a practicing attorney, etc, etc)

[ Reply to This | Parent | # ]

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