This text was originally written in 2013 but only published in late 2024, with some minor editing and the odd addendum and excursion.
Correspondingly, the text reflects my 2013 views and experiences—not necessarily their 2024 counterparts. In particular, note that this text was written before the Biden-era lawfare problems, the cancellation-at-the-whim-of-Leftist-activists era, the COVID-countermeasure era of wild accusations against those who did not support what governments claimed to be the truth (even when it was not), and the era of bogus “fact checks” that reject or validate claims based on ideological positions instead of actual facts.
Some interim texts have dealt with similar or overlapping topics, including one on the movie “In the Name of the Father” and the false conviction of Gerry Conlon.
During my readings in the blogosphere, the question repeatedly arose of when and whether someone accused of a crime was guilty and how he was to be treated awaiting an official ruling. Similar issues often arose around accusations like “X is racist!”, which in the eyes of many imply something even worse than a crime.
I am myself a proponent of the “innocent until proved guilty” approach—and have often been annoyed by those who presume, from afar and without any “insider knowledge”, to make claims with great certainty. (With some notable special cases, where a mere accusation, one way or the other, is considered sufficient proof by many, e.g. where the crime of rape or the “crime” of racism is concerned.)
Still, a claim of “innocent until proved guilty” is often simplistic, unrealistic, or even unfair. Here I elaborate on a more detailed and, I hope, better functioning policy for everyday life, blogging, and similar—the treatment within the legal system must remain as it is, however.
The claim of innocence for the unconvicted can, obviously, not be taken as a literal statement of innocence (nor, necessarily, the reverse claim for the convicted): Either someone committed a crime or he did not—this state does not magically change with the opinion of a judge or a jury.
While I stand by the last claim in broad strokes, it might need modification in detail. For instance, with a division into a “finding of facts” and a “finding of law” (common in e.g. the U.S.), the facts are what they are, but the right interpretation of the law, and whether the law applies to the current facts, is a point where some room for “magical[ly] change” does exist. (But nowhere near as much as some judicial activists want.)
Equally, it would be straining the expression to say that e.g. the justice system must consider someone innocent until conviction and treat him so: If it did, it would not have legitimate reason to drag him into court, set a bail, or otherwise interfere in his life.
However, here we start to close in on the core of the issue: Even in the face of a high probability of guilt, the justice system must treat the unconvicted in a manner that comes as close to those not under suspicion as possible (without unduly preventing the work of the prosecution, increasing the risk of flight, etc.)—in fact, in the very core and from a historical perspective, the phrase can possibly even be taken to just imply something about due process, impartial proceedings, and/or who has the burden of proof (i.e. the accuser/the prosecution).
When we compare a legal proceeding with a more everyday setting, a major difference is typically the stringency of the proof needed: The decision to e.g. put someone in jail for ten years requires a knowledge beyond “reasonable doubt” (and an acquittal does not automatically imply innocence—just that the bar for guilt was not reached). Civil suits typically have less strict rules, with a span from the stringency of a criminal case to a mere “it seems likely” (depending on issues like jurisdiction, type of suit, and similar). Personal opinions, almost by necessity, work on a “it seems likely” level (ideally: far to many jump to conclusion based on preconceived opinions or what they want to be true) for the simple reason that claiming innocence by less stringent criteria would be highly naive. Someone can then legitimately profess to simply not knowing or to consider it likelier that someone is guilty than innocent (or vice versa) to a certain degree (“somewhat more likely”, “considerably more likely”, “far more likely” or similar)—but not to having near certain knowledge.
The trials against O.J. Simpson show an interesting situation that illustrates some of the problems when moving to the everyday world: The criminal court did not see the level of evidence as sufficient, but the civil court, using a lower bar and investigating whether O.J. should pay damages for the consequences of the murder, did. Should we now consider O.J. guilty or not?
The question of what types of doubt are reasonable can vary from person to person. For instance, when I was around six, I and my sister jumped on our mother’s bed, disheveling it considerably. Confronted by our mother, I offered the explanation that we were innocent and the dishevelment caused by visiting Martians (or something similar)—and I actually felt unfairly treated when she did not believe me: In my then worldview, a visit from mischievous Martians was quite conceivable (after all, somewhat similar things happened in comics and on TV all the time). Her worldview was different.
When such conflicts arise in adult life and in the justice system, we should stick as close to science and scientific thinking as possible. Where science is adverse, the burden of proof should be on the maker of the claim, with some reservations for cases where this could unduly violate the principle of “innocent until proved guilty”. For example, if someone highly unexpectedly knows were a stolen jewel can be found, “I am psychic!” is not a plausible explanation—and the self-proclaimed psychic would be the one carrying the burden of proving that he is, in fact, psychic. (If he is accused of the theft, which is not a given.) Many other explanations (e.g. “I saw the thief hiding it.”), however, are sufficiently valid that reasonable doubt is present when we consider the accusing claim “He knew the hiding place; ergo, he is the thief!”, implying that mere knowledge of the hiding place does not prove that he stole the jewel.
As can be deduced from the above, it would be wrong to criticize a personal belief of “guilty” merely on the grounds of “innocent until proved guilty”. (However, other grounds can apply, e.g. that the facts seem to point towards innocence or that the accusation is made on so loose grounds that there is no reason to believe it to be true a priori—as is often the case with ad hominem attacks in the blogosphere.)
Instead, I would emphasize two basic principles that are to be inferred from a call on the principle of “innocent until proved guilty”:
The burden of proof remains on the accuser: He has to prove guilt, not the accused innocence.
The accused should be treated as innocent in as many ways as reasonably possible (until/unless guilt is proved).
Both are quite contrary to many of the accusations raised by the politically correct or Feminists: X is racist/sexist, accusation implies guilt, and everything that someone racist/sexist says is, ipso facto, wrong; ergo, we need not bother to counter X’s arguments, actually look at the scientific references he gave, whatnot.
(Notably, even if X actually were this-or-that, it is only very rarely justified to proceed like the PC crowd: Even e.g. a racist can come with good arguments and these should be investigated on their own merit—not the merits of their provider. The same applies, m.m., to those considered authorities or otherwise seen as having a “positive” opinion.)
Of course, comparing e.g. the blogosphere with the justice system, different levels of proof will often apply (cf. above). Further, what treatment is acceptable might depend on the level of proof provided at the time at hand.
To look at some specific examples based on X standing accused of murder (but with no ruling made to date):
The claim “I consider it more likely than not that X is guilty (innocent).” is almost always allowable. There are many cases, however, when it would be best left unstated for the simple reason that the speaker is not sufficiently well informed to speak on the matter.
The claim “I consider X guilty.” is somewhat similar. However, it is a more far-going and absolute claim that should not be made without a solid argument. Very often, the claim from the first item is the better choice.
Claiming that X is guilty and that others must see this the same way is almost never allowable. (Including cases, where dissenters are being ridiculed or met with ad hominem.) If such claims are made, they must base on very solid evidence—sufficiently so that an intelligent, rational, and neutral third-party would see the dissenters as slow on the uptake or highly partial.
The claim “X has a duty to present himself to the appropriate authorities so that he can be tried.” (cf. the rape accusations against Julian Assange) requires similar strict criteria with regard to guilt and a high probability of a correct verdict for something which is both rightfully criminal and carries a reasonable penalty. Notably, miscarriages of justice are quite common and it would often be foolish of X to just trust the faulty cliche “The innocent have nothing to fear.”—not to mention the risks posed by unreasonable laws. (The Swedish “rape” laws are one example, cf. again the Assange case; however, far worse examples exist—including when the accused risk execution merely for speaking up against a dictatorial government.)
Through a similar principle, even a legal verdict of “guilty” does not automatically imply that a blogger should assume guilt. In most cases, the court will be correct; however, critically, not in all.
By 2024, I have repeatedly spoken in favor of taking legal verdicts with several grains of salt. For instance, the phrase “convicted murderer” is better replaced with e.g. “murder convict” (or some other variation that fits the grammatical context, e.g. “convicted of murder”). That someone is convicted of murder does imply that he is convicted—it does not imply that he is a murderer.
Killing X to eliminate the possibility of further crimes would require the extremest level of evidence—if at all allowable from an ethical point of view. (Ditto e.g. killing for reasons of personal vengeance.)
For the sake of precision: this deals with vigilante killings, not capital punishment.
The ethical question does not lie within the scope of this text; however, I would currently tend not to allow such killings even when guilt is clear. Further, if allowed, I would definitely require additional exceptional circumstances, e.g. that someone guilty escapes punishment within the legal system on a technicality—and, certainly, that the crimes were sufficiently horrible and the risk of recidivism sufficiently large.
Demanding that X step down from this-or-that position or makes some other form of sacrifice is similar to the two preceding items and would require a near-certainty of conviction (with some reservations for what exactly is demanded). However, it can be quite justified to e.g. have X temporarily lay down the position until the verdict is in: For one thing, there are situations where the claim that Caesar’s wife must be above suspicion applies; for another, the circumstances around the accusation and proceedings could make it unlikely that X performs satisfactorily.
In more general cases, there must be a sufficient connection between the one and the other. For instance, recent years (time of writing: 2013) has seen a number of cases of athletes being excluded from competitions or otherwise punished (as athletes) for making statements that could be construed (often only under the reversal of Hanlon’s Razor) as racist—something entirely and utterly irrelevant to the sport and a sign of how dangerous political correctness has become. This type of though-control and dictatorial take on what opinions are “correct” is inexcusable—something far worse than racism.
Making inferences based on presumed guilt will quite often be wrong—how often will depend on the exact case, circumstances, and inference. (Apart from the issue of other factors, e.g. over-generalizations and non sequiturs, that could invalidate them independently.) For instance, to conclude that an organization with a board member under accusation of fraud needs to investigate the backgrounds of its prospective board members better, would require a considerable likelihood that he actually is guilty. (Or, of course, independent proof that the current background checks are insufficient.)
Concerning outsiders who claim absolute knowledge, leap to conclusions, or similar, the interim years provided at least two very interesting examples around Derek Chauvin:
Firstly, very many made the blanket (and racist...) claim that Chauvin was motivated by specifically racism—something that they could not possibly know and something for which I, so far, has not seen a sliver of actual proof.
Secondly, some unusually idiotic debaters claimed that he was definitely a murderer, because (a) his calm during the events around George Floyd proved that he was a psychopath, (b) murdering is what psychopaths do.
This discounts the much more likely explanation that he was calm because he was not aware that the life of Floyd was at risk and/or that the death of Floyd, should it take place, would later be viewed as murder by a court. Also note how conveniently this could play out: if he is calm, claim that he is a psychopath and, therefore, a murderer; if he is agitated, claim that he was agitated because he was murdering someone.
This, of course, assuming that he was calm at all, which cannot be guaranteed from superficial external signs alone. Nevertheless, this assumption was made by the aforementioned debaters.
Concerning the risk of a murder conviction, I note that I still consider the conviction for murder, as opposed to a lesser charge, absurd on its face—if Chauvin set out to murder Floyd, why would he do so in front of a crowd of witnesses, some of whom were actually filming him? In this, he also provides a good example of why phrases like “convicted murderer” (cf. an above addendum) are best avoided.
Further, even the assumption that a psychopath is automatically a murderer is wrong. Ditto related assumptions like that a psychopath in Chauvin’s shoes would have taken the opportunity to murder Floyd.
The following is an automatically generated list of other pages linking to this one. These may or may not contain further content relevant to this topic.