[Silencer]

amphibian, on 03 August 2010 - 02:57 AM, said:

Silencer, on 03 August 2010 - 02:14 AM, said:

Wouldn't the lawyer be able to object to the constitution of the jury if there was an imbalance in terms of gender?

Each side has a certain amount of strikes. What that means is that when evaluating potential jurors, a side can object to a limited amount of people (three, four or whatever the jurisdiction area regulations say) before the jury is finalized. Those are intended to be used strategically, but strange things do happen when a juror either performs counter to expectations or gets by the lawyer's "juror/verdict detectors".

Quote

However, my personal take on this whole issue is a bit different to 'did she or didn't she' - it stems more from the ridiculous trend we seem to be getting of people pursuing legal action "years later". Not so extreme in this case, it's six years or so, but perhaps the most notable one for me was down here in NZ, where a woman sued a police officer(s) for rape almost two decades after the event. OK, 'social pressure' or 'shame' or some such rubbish prevented her from doing it earlier, but to then bring it back up, almost TWENTY YEARS on, where there is no chance of forensic evidence, memories make details foggy and accounts inconsistent by the very nature of the brain...it's either vindictive, bullshit, or quite simply unfair.
I'm not saying that, if the woman was raped, that was at all fair - it probably ruined her life - but to bring it back up that far on? Even ten years, five years, whatever...especially because it leaves open the possibility that you just changed your mind. It's terrible, imo, that someone can just suddenly up and demand compensation for something that may or may not have happened with little chance of supporting evidence, what basically turns into a 'he said she said' battle, after such a long time.

Forensic evidence can be turned up in decades old evidence. Several exonerations and new convictions have resulted from finding DNA evidence in old, old cases.

Furthermore, it sometimes takes years to gather the evidence to build an actionable case. Imagine going through all of Madoff's paperwork, putting together the framework for Brown v. Board of Education or figuring out the morass of federal, state and local regulations for something like an environmental action against BP for "letting the oil well rupture". There's a discovery process that takes time, there's a scheduling process that takes time and there's all kinds of other things that require time and man-hours to complete. That's why some cases take years to arrive at a resolution. Sometimes a case can take five years and be settled five minutes before they walk into court for the first time. Sometimes a case can get appealed all the way to the Supreme Court. Death penalty cases usually take a long while to finally arrive at a resolution.

The arc of justice is long, but it generally grinds towards the truth. Except when it doesn't, but that's a topic for another time.

But that's not what I'm talking about. I'm talking, *turns up on news headlines*: Woman claims rape charges against police officers after 20 years. I'm not talking about the process, I'm talking about the woman claiming, and then pursuing in court, that she was raped twenty years ago. Not two years then ten appeals, one trial after charges are brought twenty years later. Obviously some things take time to prepare, but this isn't a case of that at all. Less than a year from charges being laid to the end of the whole thing.

@HD: Right, I see...I think.
Regards common sense, however, in my experience (limited as that is) NZ juries are never very enthusiastic, and tend to have quite a bit of bias going in which all the common sense in the world can't reason with. Unless it's a major murder case, or similar, ofc.

[HoosierDaddy]

Silencer, on 03 August 2010 - 03:17 AM, said:

amphibian, on 03 August 2010 - 02:57 AM, said:

Silencer, on 03 August 2010 - 02:14 AM, said:

Wouldn't the lawyer be able to object to the constitution of the jury if there was an imbalance in terms of gender?

Each side has a certain amount of strikes. What that means is that when evaluating potential jurors, a side can object to a limited amount of people (three, four or whatever the jurisdiction area regulations say) before the jury is finalized. Those are intended to be used strategically, but strange things do happen when a juror either performs counter to expectations or gets by the lawyer's "juror/verdict detectors".

Quote

However, my personal take on this whole issue is a bit different to 'did she or didn't she' - it stems more from the ridiculous trend we seem to be getting of people pursuing legal action "years later". Not so extreme in this case, it's six years or so, but perhaps the most notable one for me was down here in NZ, where a woman sued a police officer(s) for rape almost two decades after the event. OK, 'social pressure' or 'shame' or some such rubbish prevented her from doing it earlier, but to then bring it back up, almost TWENTY YEARS on, where there is no chance of forensic evidence, memories make details foggy and accounts inconsistent by the very nature of the brain...it's either vindictive, bullshit, or quite simply unfair.
I'm not saying that, if the woman was raped, that was at all fair - it probably ruined her life - but to bring it back up that far on? Even ten years, five years, whatever...especially because it leaves open the possibility that you just changed your mind. It's terrible, imo, that someone can just suddenly up and demand compensation for something that may or may not have happened with little chance of supporting evidence, what basically turns into a 'he said she said' battle, after such a long time.

Forensic evidence can be turned up in decades old evidence. Several exonerations and new convictions have resulted from finding DNA evidence in old, old cases.

Furthermore, it sometimes takes years to gather the evidence to build an actionable case. Imagine going through all of Madoff's paperwork, putting together the framework for Brown v. Board of Education or figuring out the morass of federal, state and local regulations for something like an environmental action against BP for "letting the oil well rupture". There's a discovery process that takes time, there's a scheduling process that takes time and there's all kinds of other things that require time and man-hours to complete. That's why some cases take years to arrive at a resolution. Sometimes a case can take five years and be settled five minutes before they walk into court for the first time. Sometimes a case can get appealed all the way to the Supreme Court. Death penalty cases usually take a long while to finally arrive at a resolution.

The arc of justice is long, but it generally grinds towards the truth. Except when it doesn't, but that's a topic for another time.

But that's not what I'm talking about. I'm talking, *turns up on news headlines*: Woman claims rape charges against police officers after 20 years. I'm not talking about the process, I'm talking about the woman claiming, and then pursuing in court, that she was raped twenty years ago. Not two years then ten appeals, one trial after charges are brought twenty years later. Obviously some things take time to prepare, but this isn't a case of that at all. Less than a year from charges being laid to the end of the whole thing.

....

That is what statute of limitations are for. You can only sue up until a certain point in time, after which point any claim, however valid it might have been, has run its course. Granted, where the statute of limitations begins on an action is fluid, thus making it more murky than it would seem at first blush, it does prohibit this en masse. Going further into this gets rather.... deep, so to keep it simple statutes of limitations are useful in stopping spurious legal suits.

But just as an aside, rape is a bad example. The more terrible the crime committed, the longer the period a person has to have during which to bring the trial to court. Time should have no effect on justice in the most heinous of crimes.

This post has been edited by H.D.: 03 August 2010 - 03:29 AM

[Silencer]

So, my question is: do you think twenty years is a reasonable time to have? Given how easy it would be for it to go from "just some fun" to "they raped me"?

[HoosierDaddy]

You are loading that question. Any person whose position "easily" changes from "it was just fun" to "they raped me" is inherently questionable. However, if they had evidence to provide such that a prosecutor believed that the person was raped twenty years ago? Even if the only evidence they had was their own testimony. Yes, it is a legitimate period of time.

It is appropriate however, because a spurious or specious case of murder, rape, or child-molestation (the three big no-nos) that is claimed after twenty years would be dealt with in the appropriate manner. If there was nothing to the allegations, it would never be prosecuted. (The problem in this case i the video here, it provides proof of something. What that something is was decided by the jury.) If it was prosecuted for no good reason, than the defendant will have a case of wrongful prosecution which they can put forth in which to gain damages from having to defend themselves from a specious or spurious case that should never have been prosecuted in the first place.

So, yes, I do think that is a legitimate period of time if the person felt they were raped.

[Silencer]

H.D., on 03 August 2010 - 04:16 AM, said:

You are loading that question. Any person whose position "easily" changes from "it was just fun" to "they raped me" is inherently questionable. However, if they had evidence to provide such that a prosecutor believed that the person was raped twenty years ago? Even if the only evidence they had was their own testimony. Yes, it is a legitimate period of time.

It is appropriate however, because a spurious or specious case of murder, rape, or child-molestation (the three big no-nos) that is claimed after twenty years would be dealt with in the appropriate manner. If there was nothing to the allegations, it would never be prosecuted. (The problem in this case i the video here, it provides proof of something. What that something is was decided by the jury.) If it was prosecuted for no good reason, than the defendant will have a case of wrongful prosecution which they can put forth in which to gain damages from having to defend themselves from a specious or spurious case that should never have been prosecuted in the first place.

So, yes, I do think that is a legitimate period of time if the person felt they were raped.

But that's the thing: they do have grounds, as they had sex. That doesn't mean she was raped, but you can't outright call the thing a sham when intercourse did happen, and was admitted to have happened by both parties. And yes, the only evidence was their own testimony. What I don't get, is how anyone can take someone at their word when they come back twenty years - bearing in mind that is more than my entire lifespan, we're talking about, so for me that is a gigantic stretch of time - and claim rape, but have not claimed such at all during those twenty years?
If someone who I'd had a fight with five years ago came up to me today and claimed I'd physically bullied him, would he have a case? Hardly. But over that course of time he's changed events to something that didn't occur, and the only 'evidence' on either side is recollection and testimony. So how does one pursue this as a juror? Basically it comes down to character and presentation, and is that really a case? Not in my opinion, it's just my word against his. Same thing here.
*shrug* I just don't view backtracking that far on someone's word is valid for a court case. I'm kind of surprised you do, but then people must, otherwise this sort of shit would never come up, lol.

[HoosierDaddy]

Silencer, on 03 August 2010 - 05:39 AM, said:

H.D., on 03 August 2010 - 04:16 AM, said:

You are loading that question. Any person whose position "easily" changes from "it was just fun" to "they raped me" is inherently questionable. However, if they had evidence to provide such that a prosecutor believed that the person was raped twenty years ago? Even if the only evidence they had was their own testimony. Yes, it is a legitimate period of time.

It is appropriate however, because a spurious or specious case of murder, rape, or child-molestation (the three big no-nos) that is claimed after twenty years would be dealt with in the appropriate manner. If there was nothing to the allegations, it would never be prosecuted. (The problem in this case i the video here, it provides proof of something. What that something is was decided by the jury.) If it was prosecuted for no good reason, than the defendant will have a case of wrongful prosecution which they can put forth in which to gain damages from having to defend themselves from a specious or spurious case that should never have been prosecuted in the first place.

So, yes, I do think that is a legitimate period of time if the person felt they were raped.

But that's the thing: they do have grounds, as they had sex. That doesn't mean she was raped, but you can't outright call the thing a sham when intercourse did happen, and was admitted to have happened by both parties. And yes, the only evidence was their own testimony. What I don't get, is how anyone can take someone at their word when they come back twenty years - bearing in mind that is more than my entire lifespan, we're talking about, so for me that is a gigantic stretch of time - and claim rape, but have not claimed such at all during those twenty years?
If someone who I'd had a fight with five years ago came up to me today and claimed I'd physically bullied him, would he have a case? Hardly. But over that course of time he's changed events to something that didn't occur, and the only 'evidence' on either side is recollection and testimony. So how does one pursue this as a juror? Basically it comes down to character and presentation, and is that really a case? Not in my opinion, it's just my word against his. Same thing here.
*shrug* I just don't view backtracking that far on someone's word is valid for a court case. I'm kind of surprised you do, but then people must, otherwise this sort of shit would never come up, lol.

No, there is no ground to claim rape when sex occurred with mutual consent, or implied mutual consent.

You have a problem with the time-span, and that is understandable. I'd simply as you to look into repressed or buried memories, and then re-imagine a case. It is not unimaginable that a person who suffered physical sexual-abuse a long time before they ever come to both: (1) understand that it happened, and; (2) that it was wrong.

Twenty years is a long, long time. But, for someone who was raped, twenty years is not so long a period that the person who committed the rape should get away with having done so.

Your next point concerns he said vs. she said (taking out the accusation part): This is dealt with before a charge is ever presented. I'm not in law enforcement, but I can only imagine that it would take a prosecutor FAR more than the mere story of a woman claiming she had been raped after 20 years to ever lend the story credence enough to push for a warrant for arrest. Not all cases have to be prosecuted, and most that are prosecuted are settled long before a jury trial will take place.

How does one pursue the truth as a juror in a s/he said/s/he said case? Testimony on the witness stand combined with other evidence. I don't recall any successfully prosecuted case of he said vs. she said of a supposed rape after twenty years has gone by that was solely decided on that evidence. Could you provide one?

You are presenting a paper case and asking me to argue why it shouldn't take place. I can't really argue against it without resorting to generalities. It is entirely possible, even probable, that I have far more faith in the legal system than you do. Spurious cases happen, but the law has recourse for those wrongfully accused, such that it is deterred in the legal community.

In the end, you find that a person has a spurious case being lodged against them twenty years after the event bad, because I assume you think they are innocent. I'd ask you to consider that the person is guilty of rape, and has never served a second of time for committing one of the most heinous crimes against a person that exists. Consider there is overwhelming evidence that this person, who has escaped punishment til then, has finally been charged with the crime.

Is it better to put the person in jail for rape 20 years after having done so, than to state that if a person who commits rape and can then successfully evade prosecution for 20 years deserves to go free?

It's always a balancing act when it comes to law. I believe that, in the end, the courts get the job done right. It might be difficult and take a long time, but in the end, they generally get stuff right. Perhaps you disagree.

[Silencer]

H.D., on 03 August 2010 - 06:08 AM, said:

No, there is no ground to claim rape when sex occurred with mutual consent, or implied mutual consent.

You have a problem with the time-span, and that is understandable. I'd simply as you to look into repressed or buried memories, and then re-imagine a case. It is not unimaginable that a person who suffered physical sexual-abuse a long time before they ever come to both: (1) understand that it happened, and; (2) that it was wrong.
Yup, and I can understand where you're coming from (funnily enough, from having read 'Cat's Eye' and studied it at school as much as any interest in psych that I have, though personally I found the text rather...childish in its concept) and this is certainly the case with people who are severely traumatised and/or too young to understand (e.g. child molestation, I wouldn't have a problem with the time period we're talking, because then the kid has to actually grow up before they can fully comprehend what was happening), but if you consider the case in thread, a twenty-year-old doesn't need six years to decide she didn't like what happened. Though, mitigating in this case that she only found the video (as far as my reading of it goes) not too long ago) but at the same time, some people take a long time for other reasons..


Twenty years is a long, long time. But, for someone who was raped, twenty years is not so long a period that the person who committed the rape should get away with having done so.

Your next point concerns he said vs. she said (taking out the accusation part): This is dealt with before a charge is ever presented. I'm not in law enforcement, but I can only imagine that it would take a prosecutor FAR more than the mere story of a woman claiming she had been raped after 20 years to ever lend the story credence enough to push for a warrant for arrest. Not all cases have to be prosecuted, and most that are prosecuted are settled long before a jury trial will take place.

How does one pursue the truth as a juror in a s/he said/s/he said case? Testimony on the witness stand combined with other evidence. I don't recall any successfully prosecuted case of he said vs. she said of a supposed rape after twenty years has gone by that was solely decided on that evidence. Could you provide one?
See below, closest one I can find, and the case in question I had in mind earlier.

You are presenting a paper case and asking me to argue why it shouldn't take place. I can't really argue against it without resorting to generalities. It is entirely possible, even probable, that I have far more faith in the legal system than you do. Spurious cases happen, but the law has recourse for those wrongfully accused, such that it is deterred in the legal community.
I have faith in the legal system, probably moreso in the NZ system than that of the UK or USA, tbh, but I still think too much slips through the gaps, and more often recently than is document in the past, but that could be a case of it being 'in the now' rather than fact.

In the end, you find that a person has a spurious case being lodged against them twenty years after the event bad, because I assume you think they are innocent. I'd ask you to consider that the person is guilty of rape, and has never served a second of time for committing one of the most heinous crimes against a person that exists. Consider there is overwhelming evidence that this person, who has escaped punishment til then, has finally been charged with the crime.
I'm sorry...but what? "Innocent until proven guilty"? "Beyond reasonable doubt"? If you want to deal in assumed guilt, HD, then I can play that game as well as anybody - but that's not how the courts work, is it? D: (1*)
Note also, you're now talking about cases with plenty of evidence - those, I have no problem with.

Is it better to put the person in jail for rape 20 years after having done so, than to state that if a person who commits rape and can then successfully evade prosecution for 20 years deserves to go free?
Ideally, the case would be prosecuted ASAP after the event, and thus the question of time or evading the time limitations on such a thing would never come up. My argument is that we stop pursuing cases of hearsay twenty years into the future, thus *encouraging* people to speak out sooner, rather than later and being denied justice due to a lack of evidence.

It's always a balancing act when it comes to law. I believe that, in the end, the courts get the job done right. It might be difficult and take a long time, but in the end, they generally get stuff right. Perhaps you disagree.
No, I tend to agree, however I also acknowledge that there is a lot of leeway which drags things out and results in, well, slander, really. *Generally* not putting innocent people in jail, for example...is that acceptable? I don't know. I for one am against the idea of 'beyond a reasonable doubt' - not because it isn't a good idea, but because it is too easy to press the issue against a jury, when in fact there is so much that could be 'reasonable doubt' in some cases, and giving in to that oft times lets people go. On the other hand, it safeguards against innocent people being put away, so...

This is the one I had in mind: Wikipedia. Not perfect, but then what example is?

See responses in red above.

(1*) I'd put back to you this: if you were innocent, but had consensual sex with a woman and, twenty years later, at the height of your career, got accused and tried for rape?

Overall, I think we both agree that, in principle, a guilty person should be charged and convicted and an innocent person should be free to go, and we agree that trials with little to no evidence should not even make it to a jury. Other than that, we're arguing cases, yes? XD

[amphibian]

Silencer, on 03 August 2010 - 07:07 AM, said:

The Wiki article on Louise Nichols

You have to be kidding us. There is no way the New Zealand justice system would allow a prosecutor to bring the case against the accused without further evidence beyond "He raped me". There's more evidence supporting the story - which is beyond Wikipedia's scope here - and you are doing us a disservice by setting up a strawman and saying it shouldn't occur.

Quote

Ideally, the case would be prosecuted ASAP after the event, and thus the question of time or evading the time limitations on such a thing would never come up. My argument is that we stop pursuing cases of hearsay twenty years into the future, thus *encouraging* people to speak out sooner, rather than later and being denied justice due to a lack of evidence.

Nichols brought her claim 9 years after the alleged rape occurred. Three trials ensued - one in late 1993, and two in 1994. The case was reopened in light of new information ten years later in 2004. I do not see the problem with reopening the trials in light of new information; the media investigations may have unearthed it, but ultimately, the NZ justice system decided that it was an actionable case. The hearsay apparently affected the trials in '93 and '94. Not twenty years later, as you keep saying.

I further question your assumption that leaving cold cases to moulder would encourage people to speak out at all.

[HoosierDaddy]

Quote

I'd ask you to consider that the person is guilty of rape, and has never served a second of time for committing one of the most heinous crimes against a person that exists. Consider there is overwhelming evidence that this person, who has escaped punishment til then, has finally been charged with the crime.

I'm sorry...but what? "Innocent until proven guilty"? "Beyond reasonable doubt"? If you want to deal in assumed guilt, HD, then I can play that game as well as anybody - but that's not how the courts work, is it? D: (1*)
Note also, you're now talking about cases with plenty of evidence - those, I have no problem with.

This is a policy point, Silencer. I portrayed it poorly, and in the midst of other arguments which obviously made it unclear. The policy boils down to, it is better to prosecute someone you believe to be guilty of a crime and let an innocent man go free, than to to not prosecute and let a guilty man get away with a crime. This policy is built on the belief that juries generally get the idea right. That is not a stretch, because the entire legal system is built upon the idea that juries generally get the idea right.

This is the pertinent point of the entire conversation: While poor cases might be made by prosecutors, it is up to a jury of peers to convict someone of a crime beyond a reasonable doubt. Or in a civil case, beyond the preponderance of the evidence.

As to the case you provided, I'm unsure as to its point as it relates to what we are talking to?

This post has been edited by H.D.: 03 August 2010 - 07:29 AM

[HoosierDaddy]

Quote

(1*) I'd put back to you this: if you were innocent, but had consensual sex with a woman and, twenty years later, at the height of your career, got accused and tried for rape?

I'd sue the fuck out of everyone who attempted to get involved in the case. Yes, it is a terrifying ordeal. I think that is indisputable. However. it'd be a fantastic day when I took every bit of money they had for defamation, malicious prosecution, and all sorts of other fun. Destroying their reputations would be great as well.

#1 reason people sue? Vindication.

[Silencer]

amphibian, on 03 August 2010 - 07:27 AM, said:

Silencer, on 03 August 2010 - 07:07 AM, said:

The Wiki article on Louise Nichols

You have to be kidding us. There is no way the New Zealand justice system would allow a prosecutor to bring the case against the accused without further evidence beyond "He raped me". There's more evidence supporting the story - which is beyond Wikipedia's scope here - and you are doing us a disservice by setting up a strawman and saying it shouldn't occur.

Quote

Ideally, the case would be prosecuted ASAP after the event, and thus the question of time or evading the time limitations on such a thing would never come up. My argument is that we stop pursuing cases of hearsay twenty years into the future, thus *encouraging* people to speak out sooner, rather than later and being denied justice due to a lack of evidence.

Nichols brought her claim 9 years after the alleged rape occurred. Three trials ensued - one in late 1993, and two in 1994. The case was reopened in light of new information ten years later in 2004. I do not see the problem with reopening the trials in light of new information; the media investigations may have unearthed it, but ultimately, the NZ justice system decided that it was an actionable case. The hearsay apparently affected the trials in '93 and '94. Not twenty years later, as you keep saying.

I further question your assumption that leaving cold cases to moulder would encourage people to speak out at all.

Well, as far as I am aware, there was no further evidence to the matter - hence, they got thrown out for hearsay, and again when the 'new evidence' showed up. Indeed, in 2004, it got brought up again, twenty years later, on a claim of new evidence which was not convincing. Even at nine years, where it did get thrown out for hearsay, that is still quite a time for charges to be brought, but besides that you have to then consider (with the gift of hindsight, sadly) that the case then got thrown out THREE TIMES, thus showing how questionable it was to make it to court three times.

And I'm not sure on your final point - not allowing cases to be revisited at a later time would increase the amount of people who bring cases? Not what I was saying, but yours is still a valid point, and if there is new evidence, sure, revive. Not allowing new cases to be brought after a long period of time, however, would imo encourage people to bring a case sooner rather than later when things are no longer so clear-cut, if they even were to begin with. If you have to wait ten, fifteen, twenty years before you bring a case, it was either so traumatic a *lot* of people would have noticed the effects, or it was not much of an issue to begin with. Perhaps a callous view to take, but even so...

H.D., on 03 August 2010 - 07:27 AM, said:

Quote

I'd ask you to consider that the person is guilty of rape, and has never served a second of time for committing one of the most heinous crimes against a person that exists. Consider there is overwhelming evidence that this person, who has escaped punishment til then, has finally been charged with the crime.

I'm sorry...but what? "Innocent until proven guilty"? "Beyond reasonable doubt"? If you want to deal in assumed guilt, HD, then I can play that game as well as anybody - but that's not how the courts work, is it? D: (1*)
Note also, you're now talking about cases with plenty of evidence - those, I have no problem with.

This is a policy point, Silencer. I portrayed it poorly, and in the midst of other arguments which obviously made it unclear. The policy boils down to, it is better to prosecute someone you believe to be guilty of a crime and let an innocent man go free, than to to not prosecute and let a guilty man get away with a crime. This policy is built on the belief that juries generally get the idea right. That is not a stretch, because the entire legal system is built upon the idea that juries generally get the idea right.

This is the pertinent point of the entire conversation: While poor cases might be made by prosecutors, it is up to a jury of peers to convict someone of a crime beyond a reasonable doubt. Or in a civil case, beyond the preponderance of the evidence.

As to the case you provided, I'm unsure as to its point as it relates to what we are talking to?

Right, however just because someone is acquitted or found not guilty does not mean they go forth into the world with a clean slate - someone still brought that charge against them, and people will still know that if it's a high-profile case as in the Nicholas/Ricketts one I linked, which can have drastic effects on your life. Thus, bringing the case against an innocent man is almost as destructive to them as the actual crime was to the guilty party in another case. Iunno, it just seems to me like allowing cases like that to proceed can cause more harm than good, and if the cases were prosecuted sooner rather than later you don't have as much doubt as whether the person was actually raped or not...bah, not making it clear, but that's the best I can do atm.

Anyway, we're derailing the thread (much as I think the discussion on the OP was out of juice anyway, lol), we can either move to PM or call it quits?

[HoosierDaddy]

I rather think we are getting in to the effects of false allegations on professional careers. I do think this is an important subject, as I'm of a family of teachers. I think it is worth a discussion of the possibilities of false allegations and how despite being wrong, how they can ruin careers.