<?xml version="1.0" encoding="UTF-8"?><rss version="2.0"
	xmlns:content="http://purl.org/rss/1.0/modules/content/"
	xmlns:dc="http://purl.org/dc/elements/1.1/"
	xmlns:atom="http://www.w3.org/2005/Atom"
	xmlns:sy="http://purl.org/rss/1.0/modules/syndication/"
		>
<channel>
	<title>Comments on: The Fundamental Principles of American Justice</title>
	<atom:link href="http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/feed/" rel="self" type="application/rss+xml" />
	<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/</link>
	<description>The Legal Blog with the Really Low Standard of Review</description>
	<lastBuildDate>Fri, 12 Mar 2010 11:55:28 -0800</lastBuildDate>
	<generator>http://wordpress.org/?v=2.9.1</generator>
	<sy:updatePeriod>hourly</sy:updatePeriod>
	<sy:updateFrequency>1</sy:updateFrequency>
		<item>
		<title>By: Defending People &#187; The Question: Seven Answers</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-1017</link>
		<dc:creator>Defending People &#187; The Question: Seven Answers</dc:creator>
		<pubDate>Fri, 08 Jan 2010 05:54:17 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-1017</guid>
		<description>[...] I take it upon me to decide who is guilty, it’s almost certain that sometimes my judgment would be wrong [Rick Horowitz]. If I&#8217;m going to contribute my own mistaken judgments, it&#8217;s not going [...]</description>
		<content:encoded><![CDATA[<p>[...] I take it upon me to decide who is guilty, it’s almost certain that sometimes my judgment would be wrong [Rick Horowitz]. If I&#8217;m going to contribute my own mistaken judgments, it&#8217;s not going [...]</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Starfish: The Obligatory End-of-Year Post &#124; Probable Cause</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-941</link>
		<dc:creator>Starfish: The Obligatory End-of-Year Post &#124; Probable Cause</dc:creator>
		<pubDate>Fri, 01 Jan 2010 00:35:53 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-941</guid>
		<description>[...] which our once-great nation was built.  In fact, I wonder if the modern judiciary even knows about these bedrock principles. The modern rule is more akin to that followed by the German judiciary of the earlier part of the [...]</description>
		<content:encoded><![CDATA[<p>[...] which our once-great nation was built.  In fact, I wonder if the modern judiciary even knows about these bedrock principles. The modern rule is more akin to that followed by the German judiciary of the earlier part of the [...]</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Defending People &#187; Thoughts on Nobility, Justice, and Frblniz</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-807</link>
		<dc:creator>Defending People &#187; Thoughts on Nobility, Justice, and Frblniz</dc:creator>
		<pubDate>Wed, 02 Dec 2009 02:47:33 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-807</guid>
		<description>[...] Fresno criminal defense lawyer Rick Horowitz: You’re not there “to hear both sides of the story.”&#160; This is how the law student (and many others) made the fundamental mistake in understanding “how someone can defend guilty people.”&#160; There is no “client’s side of the story” to present.&#160; For that matter, at the start of the trial, there are no guilty people. [...]</description>
		<content:encoded><![CDATA[<p>[...] Fresno criminal defense lawyer Rick Horowitz: You’re not there “to hear both sides of the story.”&nbsp; This is how the law student (and many others) made the fundamental mistake in understanding “how someone can defend guilty people.”&nbsp; There is no “client’s side of the story” to present.&nbsp; For that matter, at the start of the trial, there are no guilty people. [...]</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: What's A Lawyer (To) Do? &#124; Probable Cause</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-792</link>
		<dc:creator>What's A Lawyer (To) Do? &#124; Probable Cause</dc:creator>
		<pubDate>Mon, 30 Nov 2009 06:44:56 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-792</guid>
		<description>[...] &#171; The Fundamental Principles of American Justice [...]</description>
		<content:encoded><![CDATA[<p>[...] &laquo; The Fundamental Principles of American Justice [...]</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: John Neff</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-785</link>
		<dc:creator>John Neff</dc:creator>
		<pubDate>Wed, 25 Nov 2009 11:49:13 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-785</guid>
		<description>My revised points are

1. The defendant has been charged with one of more crimes.
2. The prosecution will present evidence that the charges are true.
3. It is common for the defense to provide a rebuttal.
4. The jurors are supposed to only consider evidence provided during the trial and they should start by presuming that the defendant is innocent. It is possible that after careful deliberation they may decide the defendant is guilty but if they have good reason to find fault with vital prosecution evidence they shall acquit.</description>
		<content:encoded><![CDATA[<p>My revised points are</p>
<p>1. The defendant has been charged with one of more crimes.<br />
2. The prosecution will present evidence that the charges are true.<br />
3. It is common for the defense to provide a rebuttal.<br />
4. The jurors are supposed to only consider evidence provided during the trial and they should start by presuming that the defendant is innocent. It is possible that after careful deliberation they may decide the defendant is guilty but if they have good reason to find fault with vital prosecution evidence they shall acquit.</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: John Neff</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-780</link>
		<dc:creator>John Neff</dc:creator>
		<pubDate>Tue, 24 Nov 2009 22:26:43 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-780</guid>
		<description>The beyond reasonable doubt standard does not work for me because there is no agreement as how to measure doubt (or if it makes any sense to do so). It seems to me that the outcome of trials is proof by demonstration that the reasonable doubt standard is irreproducible.  

I could modify point three to say it is common for the defense to provide a rebuttal.

I could also say confidently change their minds in point four.</description>
		<content:encoded><![CDATA[<p>The beyond reasonable doubt standard does not work for me because there is no agreement as how to measure doubt (or if it makes any sense to do so). It seems to me that the outcome of trials is proof by demonstration that the reasonable doubt standard is irreproducible.  </p>
<p>I could modify point three to say it is common for the defense to provide a rebuttal.</p>
<p>I could also say confidently change their minds in point four.</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Time for Judgment &#124; Fresno Criminal Defense</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-779</link>
		<dc:creator>Time for Judgment &#124; Fresno Criminal Defense</dc:creator>
		<pubDate>Tue, 24 Nov 2009 21:55:10 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-779</guid>
		<description>[...] two things are not the same thing, just differently worded.  As I&#8217;ve stated elsewhere (parenthetically, and leaving the issue for further explication in an as-yet-unwritten blog [...]</description>
		<content:encoded><![CDATA[<p>[...] two things are not the same thing, just differently worded.  As I&#8217;ve stated elsewhere (parenthetically, and leaving the issue for further explication in an as-yet-unwritten blog [...]</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Rick</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-778</link>
		<dc:creator>Rick</dc:creator>
		<pubDate>Tue, 24 Nov 2009 20:03:11 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-778</guid>
		<description>John, first I want to thank you for stopping by.  I am glad to see people are finally beginning to leave comments.  

Your understanding is almost exactly right.  The only things I would alter are point 3 and a clarification on point 4.  

Regarding point 3, the defense does not necessarily provide a rebuttal.  Although I suspect the defense will almost always put on witnesses and thus &lt;em&gt;will&lt;/em&gt; provide a rebuttal, the law does not require this in order to obtain an acquittal.  

This is because, as you noted in your first version of point 4, the jury is supposed to start from the idea that the accused person is innocent and only changes their minds if there is evidence sufficient to change their minds and convince them that the accused person is guilty &lt;em&gt;beyond a reasonable doubt.&lt;/em&gt;  

To merely say, &quot;convict only if there is sufficient evidence to cause them to change their minds&quot; seems to indicate that if there&#039;s just enough evidence to make the jurors think the guy did it, then he&#039;s guilty.  And I think it too often does happen that way.  

However, what the law requires is something stronger.  It requires that the jurors have their minds changed from innocent to guilty &lt;em&gt;and&lt;/em&gt; that they do not have any doubts about that which are reasonable.  This doesn&#039;t mean that they don&#039;t have any doubts at all.  As the judge will almost always instruct, doubts are always possible to imagine.  But the question is, are the doubts &lt;em&gt;reasonable.&lt;/em&gt;  If there are doubts which are reasonable to have, then acquittal is the correct verdict.  

This is true even if a juror still thinks, &quot;Yeah, the accused person might have done this&quot; or &quot;I think the accused person &lt;em&gt;probably&lt;/em&gt; did it.&quot;  That an accused person &quot;probably&quot; did commit the crime is not enough in our justice system, for a conviction.  

And so, returning to point 3, it might not be necessary for the defense to put on any witnesses or evidence at all.  There may be no need at all for rebuttal evidence.  The attorney may just try to show that the prosecutor&#039;s story is wrong based on testimony the prosecution witnesses gave directly, or through the cross-examination of those witnesses.  

Certainly, there will be a rebuttal &lt;em&gt;argument.&lt;/em&gt;  The defense attorney will explain to the jury the problems with the prosecutor&#039;s story and point out the holes in the evidence.  (I can imagine a situation where even this would not be &lt;em&gt;necessary.&lt;/em&gt; However, I don&#039;t think any defense attorney in his right mind would fail to provide an argument, even if they did not put on any witnesses.)  

The law requires the prosecutor to &lt;em&gt;prove&lt;/em&gt; guilt.  The defense having a different &quot;story&quot; may help prevent the prosecutor from being able to prove guilt, but it is not necessary.  

The prosecutor might not have enough evidence to prove guilt beyond a reasonable doubt even if the defense never says anything at all.</description>
		<content:encoded><![CDATA[<p>John, first I want to thank you for stopping by.  I am glad to see people are finally beginning to leave comments.  </p>
<p>Your understanding is almost exactly right.  The only things I would alter are point 3 and a clarification on point 4.  </p>
<p>Regarding point 3, the defense does not necessarily provide a rebuttal.  Although I suspect the defense will almost always put on witnesses and thus <em>will</em> provide a rebuttal, the law does not require this in order to obtain an acquittal.  </p>
<p>This is because, as you noted in your first version of point 4, the jury is supposed to start from the idea that the accused person is innocent and only changes their minds if there is evidence sufficient to change their minds and convince them that the accused person is guilty <em>beyond a reasonable doubt.</em>  </p>
<p>To merely say, &#8220;convict only if there is sufficient evidence to cause them to change their minds&#8221; seems to indicate that if there&#8217;s just enough evidence to make the jurors think the guy did it, then he&#8217;s guilty.  And I think it too often does happen that way.  </p>
<p>However, what the law requires is something stronger.  It requires that the jurors have their minds changed from innocent to guilty <em>and</em> that they do not have any doubts about that which are reasonable.  This doesn&#8217;t mean that they don&#8217;t have any doubts at all.  As the judge will almost always instruct, doubts are always possible to imagine.  But the question is, are the doubts <em>reasonable.</em>  If there are doubts which are reasonable to have, then acquittal is the correct verdict.  </p>
<p>This is true even if a juror still thinks, &#8220;Yeah, the accused person might have done this&#8221; or &#8220;I think the accused person <em>probably</em> did it.&#8221;  That an accused person &#8220;probably&#8221; did commit the crime is not enough in our justice system, for a conviction.  </p>
<p>And so, returning to point 3, it might not be necessary for the defense to put on any witnesses or evidence at all.  There may be no need at all for rebuttal evidence.  The attorney may just try to show that the prosecutor&#8217;s story is wrong based on testimony the prosecution witnesses gave directly, or through the cross-examination of those witnesses.  </p>
<p>Certainly, there will be a rebuttal <em>argument.</em>  The defense attorney will explain to the jury the problems with the prosecutor&#8217;s story and point out the holes in the evidence.  (I can imagine a situation where even this would not be <em>necessary.</em> However, I don&#8217;t think any defense attorney in his right mind would fail to provide an argument, even if they did not put on any witnesses.)  </p>
<p>The law requires the prosecutor to <em>prove</em> guilt.  The defense having a different &#8220;story&#8221; may help prevent the prosecutor from being able to prove guilt, but it is not necessary.  </p>
<p>The prosecutor might not have enough evidence to prove guilt beyond a reasonable doubt even if the defense never says anything at all.</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: John Neff</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-774</link>
		<dc:creator>John Neff</dc:creator>
		<pubDate>Tue, 24 Nov 2009 15:25:08 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-774</guid>
		<description>Speaking as a former jury panel member and a potential future juror my understanding of the process is

1) The defendant has been accused of one or more crimes.
2) The prosecution will present evidence that the charges are true.
3) The defense will provide a rebuttal.
4) The jury is supposed to only consider evidence provided during the trial and they are to start the process  by presuming that the defendant is innocent. They should convict only if there is sufficient evidence to cause them to change their minds.

An alternate version of point 4 is

4) The jury is supposed to only consider evidence provided during the trial and they are to start the process by presuming that the defendant is guilty and they should only acquit if the is sufficient evidence to cause them to change their minds.

The problem as I see it is to convince potential jurors that there is a fundamental and vital differences between the two versions of point 4.</description>
		<content:encoded><![CDATA[<p>Speaking as a former jury panel member and a potential future juror my understanding of the process is</p>
<p>1) The defendant has been accused of one or more crimes.<br />
2) The prosecution will present evidence that the charges are true.<br />
3) The defense will provide a rebuttal.<br />
4) The jury is supposed to only consider evidence provided during the trial and they are to start the process  by presuming that the defendant is innocent. They should convict only if there is sufficient evidence to cause them to change their minds.</p>
<p>An alternate version of point 4 is</p>
<p>4) The jury is supposed to only consider evidence provided during the trial and they are to start the process by presuming that the defendant is guilty and they should only acquit if the is sufficient evidence to cause them to change their minds.</p>
<p>The problem as I see it is to convince potential jurors that there is a fundamental and vital differences between the two versions of point 4.</p>
]]></content:encoded>
	</item>
	<item>
		<title>By: Rick</title>
		<link>http://www.rhdefense.com/blog/law-social-issues/the-fundamental-principles-of-american-justice/comment-page-1/#comment-772</link>
		<dc:creator>Rick</dc:creator>
		<pubDate>Mon, 23 Nov 2009 21:12:07 +0000</pubDate>
		<guid isPermaLink="false">http://www.rhdefense.com/blog/?p=1252#comment-772</guid>
		<description>Kael: I don&#039;t know what you could possibly mean by that, but if it&#039;s alright, I&#039;m going to take it as a compliment.  

However, the reason I don&#039;t know what you could possibly mean by that is that my blog is nowhere near as useful as Scott&#039;s!</description>
		<content:encoded><![CDATA[<p>Kael: I don&#8217;t know what you could possibly mean by that, but if it&#8217;s alright, I&#8217;m going to take it as a compliment.  </p>
<p>However, the reason I don&#8217;t know what you could possibly mean by that is that my blog is nowhere near as useful as Scott&#8217;s!</p>
]]></content:encoded>
	</item>
</channel>
</rss>
