Acquittals and Presumption of Innocence

This is with reference to a Parliamentary Question on 25th August 2008.

Recently, there has been debate on this matter about the Government's stand on this issue, coming on the heels of controversial comments by the Attorney General that "an acquittal does not mean that an accused is innocent" and that an acquitted person could be "guilty in fact".

The Law Minister, Mr K Shanmugan, had this to say:

"In our Criminal Justice System:

(1)        When a Court finds an accused guilty of an offence with which he has been charged, it means that the judge is satisfied beyond reasonable doubt, that the accused has committed the offence charged.  In other words, the judge is convinced that the accused is guilty.  

(2)        On the other hand, when the Court acquits an accused, it simply means that the Court is not convinced that he is guilty. This is because the Court does not have to go into the question of whether the accused is in fact innocent.  An acquittal (often) simply means that the prosecution has failed to prove the case beyond reasonable doubt.  In such a situation (when there is any reasonable doubt), the Court has a duty to acquit the accused, regardless of whether the Court thinks the accused may have in fact committed the offence.  It is therefore possible for a person who has committed the offence to walk away free.  We accept that as an unavoidable consequence of our trial system, as procedural justice is important."

While I do agree with this statement (Some of the acquited will invariably be actually guilty), the recent controversy raises the interesting point that such acquittals will unavoidably cast aspersions on the innocent. 

For instance, Mr Shanmugan cites jurisprudence from the United Kingdom:

""Interesting questions have been debated before your Lordships as to the true effect of an acquittal. An accused is entitled to be acquitted unless the evidence satisfies the jury beyond reasonable doubt that he is guilty.  A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused's guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view. The only effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence. So far as the Crown is concerned, the accused is deemed, in law, to be innocent." 

Lord Salmon, Director of Public Prosecutions v Shannon [1975] AC 717

Thus, it is clearly stated here that both the innocent and those whose guilt cannot be proven are lumped in the same category. We can conclude that such a finding means that the accused cannot proven to be guilty, but neither can he be proven to be innocent. I feel that such a grey area should be avoided, as the emotional,mental and financial turmoil of a long court case to both the accused and his/her family cannot be underemphasized. It is only proper for the prosecution to rest their case after such court cases, as there is no point in leaving the defendant in a prolonged state of agony/uncertainty after going throughthe legal maelstrom of complicated court proceedings, other than to constantly remind the defendant of the case over and over again.

To further illustrate this contradiction between the stand taken by the state and its actions, I highlight the statement made by the Law Minister that:

"The presumption of innocence is an important and fundamental principle, and is one of the foundations of our Criminal Justice System.The Government is absolutely committed to upholding the presumption of innocence, as a core principle in our commitment to the Rule of Law.  There is no intention to question or qualify that principle in any way."

Compare this statement to a comment made by the Minister several paragraphs later, which references an article in the Massachusetts Bar Association, which notes that "The word innocent should not be used promiscuously."

" It is possible that some confusion had arisen because this is a technical area and there is tendency in common parlance to equate a finding of "not guilty" in court with actual innocence.  A recent article by the Massachusetts Bar Association points out this common mistake and calls for more precise terminology. A finding of a "not guilty" is not to be equated with actual innocence."

Thus, on one hand, the state argues that it wholeheartedly supports this presumption of innocence, ie the accused is innocent till proven guilty beyond reasonable doubt. On the other hand, it is to be noted that defendants whose guilt cannot be proven beyond reasonable doubt cannot be truly vindicated either, nor could they be declared innocent.I feel that these two statements are incompatible. While the government's stand does have logical basis, the claim that those declared "not guilty" are not always innocent, invariably casts aspersions on the character and past of people in this category, which does a great injustice to those whom are factually innocent, having had had to suffer the triple whammy of heavy financial burdens due to legal fees, emotional trauma from being wronged, and having their reputation tarnished for a crime he did not commit.

Also, I strongly feel that if the state, which ensures the proper enforcement of laws as part of its broad mandate to rule, as well as in control of the Police and the other security apparatus of the state, fails to prove the guilt of a single man beyond reasonable doubt despite its broad powers and overarching influence, the state should recognize that there is a high likelihood that the individual is innocent and thus acquit with this underlying assumption. There is no benefit to the state and the individual in leaving the defendant stranded in a legal grey area.

For those in this situation, I feel that if compensation cannot be given by the government (which is the main thrust of the AG's statement), the government should at least recognize the likely innocence rather than guilt of those acquited.

It is notable that the Massachussetts Bar Association argues that in several cases, the accused is actually guilty, but through various faults in the legal process (eg evidence was ruled inadmissable due to various issues), the accused is acquitted. While I do admit this possibility, I believe that such cases are firmly in the minority. In the vast majority of acquited individuals, the individuals are innocent.

Also, even if this is not the case, I argue that it is better that a few factually guilty parties be declared innocent, than the whole let be declared implicitly guilty. This is as the factually guilty have already paid a price, however small relative to the magnitude, through legal fees and mental trauma, whereas the innocent would be severely wronged to be forever branded by the crimes they did not commit.

The fact that this is not an AQ however gives me the liberty to declare that this stance is probably assuming that you, like me, strongly believe that the fair administration of justice should be more focused on avoiding the maligning of the innocent (based on the beneficial intention of "First, do no harm"). If you however stauchly believe that the judicial system should be focused on the prosecution of the guilty at all costs,  do feel free to disagree with my humble opinion.

'I'm going to die on Monday at 6.15pm'

There's an article about euthanasia on the Sunday Times today, main section page 29. It's a diary account of a son in the Netherlands whose mother chose euthanasia when she was diagnosed with terminal cancer.

(Added by Liza: Alternatively, you can read the article, originally published in the Guardian, online here.)

DNA testing is not infallible

By Andy Ho, Senior Writer

LAST week, Malaysian opposition leader Anwar Ibrahim was sworn into Parliament. He then led a walkout over a Bill that would compel suspects to surrender samples of their DNA.

That fight seems almost quixotic given that the technology is so sensitive now that DNA in trace samples with just a few cells will suffice. There is enough of your DNA on newspaper in your hands now for a crime lab to profile it. Assuming there is no police misconduct, the Anwaristas ought to be fighting instead for a better law, one that ensures only good DNA evidence is admissible in court.

Contrary to popular opinion, DNA evidence is not unassailable. There is both good and bad DNA evidence.

The DNA Profiling Lab at the Health Sciences Authority here says its error rate is only one in trillions. But last month, police in Victoria, Australia, admitted to an erroneous DNA test that had secured a rape-and-murder conviction. It then reopened 7,000 convictions over the past 20 years based on DNA evidence.

Like any lab procedure, DNA testing can produce false negatives. That is, a match that exists in reality is missed and a guilty person is exonerated. Worse yet, there can also be false positives, where an innocent person is wrongly convicted.

Because of the high statistical standards used in DNA testing to establish similarity between samples, the risk of false positives is infinitesimally small. But statistically, this means that the likelihood of false negatives is, by comparison, relatively higher.

How do errors occur? Accurate computerised equipment is used for the testing - leading to colourful graph printouts - but these graphs must be interpreted. Judgment calls are necessary as to which peaks in the graphs indicate actual genes and which are artefactual.

But these colourful printouts can have bleed-throughs. A peak labelled with blue dye, say, might be mistaken for a yellow or green one, thus creating false peaks (genes) at the yellow or green.
While true peaks are narrow spikes, false ones can be blobs. Because of this ambiguity - how much wider are blobs? - crime lab analysts must interpret the printouts. So how they do so should be closely scrutinised.

It is also important to rule out sample degradation, contamination during collection, cross-contamination by other samples in the lab, or simple handling errors like mix-ups or mislabelling.

Even without such mistakes, DNA evidence can still be misleading because much of the technical details behind commercial forensic DNA test kits which crime labs invariably use cannot be scrutinised. The kits come complete with all the reagents required and instructions on how to run the tests. However, manufacturers don't divulge any other technical details about the kits because they say these are trade secrets. They have fought off subpoenas in the US to reveal such information.

Kit makers are assumed to carry out tests on their own kits to verify their reliability. But this data is not divulged because there is no law that makes it a requirement.

The other set of information that kit makers don't like to reveal is the exact composition of one of the reagents used in their kits called 'primer sequences'. Primers are used in the step called polymerase chain reaction in which DNA is 'xeroxed' millions of times. (That is why only trace amounts of DNA are now enough for profiling.)

But if the make-up of these primer sequences cannot be scrutinised, then one cannot be sure if the xeroxing they enable is accurate. Imagine xeroxing a million copies of a wrong page of text submitted as evidence in court. The evidence would still be wrong. Thus knowing the primer sequences that kits use is crucial if we are to be sure that a suspect's sample is correctly xeroxed.

All in all, the justice system must scrutinise the nitty gritty of DNA reports more critically, including even kit reliability. And legislatures must write DNA laws to compel third-party kit makers to release such information if they want to continue to do business in the country. DNA may well be the gold standard in forensics but the dross must be skimmed off first.

"Review". The Straits Times. Sep 6, 2008.

juvenile crime? kiddie crime?

http://en.wikipedia.org/wiki/Murder_of_James_Bulger

Look at the look of innocence on the faces of the murderers who were no less than 10 years old!

some new links on youth and crime

http://news.bbc.co.uk/2/hi/2334893.stm

Friday, 8 June, 2001, 11:02 GMT 12:02 UK
Violent crime stalks Japan's youth



Crime scenes are becoming more familiar

By BBC News Online's Mangai Balasegaram
The terrified screams of children that were heard at Ikeda elementary school on Friday are bound to echo across Japan for some time.

The savagery of the crime - in which a mentally unstable man ran amok with a knife at the school killing eight children - has stunned the nation.

School slayings are - tragically - not that uncommon in the United States, but in Japan, an attack of this nature and scale has never happened at a school before.

This is a country that is said to be one of the safest in the world, with very little regular violent crime.

It's the kind of place where you can leave your wallet in a phone box and retrieve it the next day.

But that image of rock-solid safety has taken a beating lately, with a growing unease in the nation about crime - although not from such incidents as this latest one.



Children fled from the school after the attack in Ikeda

There have been growing concerns about an apparent rise of mindless, violent crime in the country, particularly by the young.

Violence at schools has also risen in recent years, with teens stabbing teachers and classmates.

A series of headline-grabbing incidents have led to a media blitz on the subject, and has prompted legislators to amend juvenile laws to deal with violent teenage crime.

Last year, teenage crime was rated the top story of the year by the Kyodo news agency, while some commentators have said that it was one of the country's top social problems.

Baseball battering

Among the most shocking incidents last year occurred in the town of Osafunecho in western Japan.

A 17-year-old considered to be a "nice" boy got into a fight with his schoolmates over haircuts, and then went home and beat his mother to death with a baseball bat.

According to the police, he smashed his mother around the head because she refused to give him pocket money.



Alienated children who shut themselves away are a concern

The boy fled the scene and when caught later, 1,100 kilometres (700 miles) away, he told police that he left his mother dying because she would have disapproved of his fight with schoolmates.

In other cases, a 17-year-old boy bludgeoned passengers at a Tokyo subway station with a baseball bat after a fight with his father, while a pair of teenage lovers stabbed a taxi driver and stole his earnings "so they could live together".

Then there was an incident involving a popular and gifted 17-year-old, who stabbed an elderly neighbour to death simply because he wanted to know what it felt like to kill.

The country is still haunted by memories of a 14-year-old boy in Kobe, western Japan, who cut off an 11-year-old playmate's head and stuck it on the school gates in May 1997 - this after bludgeoning another child to death with a hammer two months earlier.

The statistics do show that juvenile crime has hit a 10-year high, with many more teens arrested for murder. The numbers of murders doubled to 53 in the first half of 2000.

Causes

Commentators have given a variety of reasons for the problem - children who are too spoilt, schools that are too lax, and a pressure cooker society that looks down on failure.

Some attribute the problem to the "hikikomori" - young people who have shut themselves off in their rooms, and who may be victims of bullying.

Media estimates put the number of hikikomori in Japan from anywhere between 500,000 and one million.

Other media analyses talk about "kireru" - when young people suddenly snap.

No doubt, Japan will find no easy answers as it struggles to cope with what was once a problem that belonged to other countries.

http://news.bbc.co.uk/2/hi/asia-pacific/1377781.stm

gender

Choice of topic: Random.

The following article is from the ST Forum and can be found here, together with some comments from other netizens.

Gender equality or old Asian values?


THE population dearth is indeed a desperate situation which requires desperate measures. Are Singaporeans prepared to face the desperate truth, which is that the Singapore identity and culture that we were debating not long ago is fast becoming extinct? In recent years, Singapore has had to 'fake' its population by opening the floodgates to foreigners.

I agree with Mr Thomas Ling ('Tackle the problem not the symptoms', Aug 20) that upping financial incentives and maternity, paternity or childcare leave is barking up the wrong tree. This illustrates the adage that money cannot buy everything. Much reflection is needed on attitudes to life, career and relationships.

For one thing, young women today are almost totally lacking in fu dao (the way of women), a Confucian ethic. According to Confucius, 'a woman should serve her family first and herself last'. Young women today are too arrogant, too loud and don't even know how to sit properly. It makes one wonder about their parents and shudder at the thought of them becoming mothers.

Give the men a break. Changing nappies is a woman's job. Men are made for greater things than this. You wouldn't ask a woman to carry a tonne of bricks, would you? Girls have to be taught their domestic duties and women have to be more hardworking at home. Girls should not grow up thinking the home is not their responsibility.

It is best for women to sacrifice a few years of their working life to nurture their families. Men, too, should be made more accountable on their role as breadwinners. This will create a win-win situation for all parties, including employers and children.

Our neighbourhoods are cold these days because of the absence of chatting mothers and mingling children.

In Chinese philosophy, women are yin and men are yang. They are complementary but not equal. When their energies are not balanced, there is disharmony.

A country that was built on Confucian ethics should perhaps rebuild on Confucian ethics. Unfortunately, this will not create the instant results we need. However, whatever is worth having will not come easily.

Jennifer Wee (Ms)

The controversial solution to the population put forth by the author (that is, to emphasise Confucian ethics in the same way it was in the past) does not seem to carry much weight and is especially annoying due to its condescending tone. (As we are students of gp, I shall not bother elaborating(ranting) about the tone, but shall (attempt) to target the arguments in a (hopefully) more coherent manner).

I feel that the value judgement she makes ie the proposition that women are inferior to men is not justified. eg "Changing nappies is a woman's job. Men are made for greater things than this. You wouldn't ask a woman to carry a tonne of bricks, would you? ". While it has been proven that males have more muscle fibre than females and can therefore take on heavier physical tasks, that does not suggest that one task is more important than another.

It is hence rather ironic for the writer to bring in the concept of yin and yang in her discussion ("In Chinese philosophy, women are yin and men are yang. They are complementary but not equal."). The two are definitely not identical, but the word 'complementary' seems to imply that both are equally important. It would seem more fair for both sides for men and women to approach one another as individuals with different abilities but with an equal responsibility in the relationship, and allocate their tasks appropriately.
___________________________________________________

Attached is a well argued critique posted by one of the Straits Times netizens in response to the article.

I disagree with the writer. Firstly, Confucian values are of the past and are hardly applicable in a modern, advancing society. Women today are becoming increasingly educated, and with education comes the knowledge that they can perform as well, if not better, than their male counterparts. Why should they then sacrifice their potential to stay at home and mind the children when they can perform better than the men?

Secondly, children are as much the men's as the women's; women should not have to shoulder the responsibility of having to raise them by themselves. Some might argue that the men are the one bringing home the bacon, and that this is how they contribute to the child's development. Is this how the family unit is to progress? Throw some money at the wife and kids and that's it, duty done?

I don't dispute the fact that women should take care of the children, but I believe men should shoulder half of that responsibility. What makes the writer think that raising kids is not as "great" as earning money? In fact I would argue that nurturing children would take more energy and effort than bringing home the bacon would. Also, the writer's comment on men being made for "greater things than this" implies that men are superior to women, that women are lowly, should be subservient and is indirectly implying that all women are made for is to be there to supply to their husbands' wants and needs, to mind the children and clean the house. This just undoes everything that feminists have worked to achieve over the past decades.

Thirdly, the home is as much the man's responsibility as the woman's; both have a part to play. If the writer feels that women should give up a few years to "nurture their families", she might as well go the whole nine yards and say women should not work at all, but stay at home altogether. In fact, this is exactly what she is implying by "cold neighbourhoods" and the "absence of chatting mothers and mingling children". So, women should not work at all, and if they aren't going to work, there is absolutely no point in them studying, since all that studying will go to waste anyway. They should all to finishing school and learn how to be model mothers and wives. Is that it? For a country whose only natural resources are humans, I fail to see how shutting women up in the home will help to advance society.

Also, following the writer's yin and yang theory, men and women are unequal. I don't agree. Men and women might be different, yes, but that does not mean they are unequal.

Men and women both have equal roles in the workplace and at home. These Confucian values belong in the past, not the present, and certainly not in the future.

Is there a duty to die?

Is there a duty to die?

It sounds an odd question - most of us would say 'no', except perhaps for military and similar personnel in certain circumstances.

After all, when we say someone did their duty when they gave up their life to save others, we often mean that they did an act of heroism, well beyond the call of duty.

But some cultures, and some modern thinkers, think that there is a duty on a person to die in certain circumstances.

The ideas of John Hardwig

The philosopher John Hardwig re-opened this debate with an article in 1997. He says that an individual is not the only person who will be affected by decisions over whether they live or die. So, when deciding whether to live or die, a person should not consider only themselves; they should also consider their family and the people who love them.

What produces a duty to die?

Hardwig thinks that we may have a duty to die when the burden of caring for us seriously compromises the lives of those who love us:

• they may be physically exhausted by caring for us
• they may be emotionally exhausted by caring for us
• they may be financially destroyed by the cost of our healthcare
• they may be financially destroyed by having to give up work to care for us
• their home may become a place of grief and sickness
• other family members may be neglected as all attention is focussed on us

Hardwig says that there are no general rules - each case will be different, and he openly admits

I can readily imagine that, through cowardice, rationalisation, or failure of resolve, I will fail in this obligation to protect my loved ones. If so, I think I would need to be excused or forgiven for what I did.John Hardwig

Nor does Hardwig think that a person should make their final decision without consulting their family - although he points out the difficulties in doing this.

What makes a duty to die more likely?

He goes on to list various features of a person's situation that make it more likely that they have a duty to die:

• a duty to die is more likely when continuing to live will impose significant burdens on our family and loved ones
• a duty to die becomes greater as we grow older, because we will sacrifice less of our life
• a duty to die is more likely if we have already lived a full life
• there is a greater duty to die if our loved ones' lives have already been difficult or impoverished
• a duty to die is more likely if our loved ones have already made great contributions or sacrifices to make our life a good one
• the duty to die is reduced if we can adapt well to our disease or disability
• the duty to die is reduced if we still make significant contributions (not just money) to the lives of others
• a duty to die is more likely when the part of us that is loved will soon be gone or seriously compromised
• there is a greater duty to die to the extent that we have lived a relatively lavish lifestyle instead of saving for illness or old age

It is one of the tragedies of our lives that someone who wants very much to live can nevertheless have a duty to die.John Hardwig

Taken from BBC - Religions and Ethics