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“It Seems to Me…”

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"It Seems to Me..."

by Steve H Kehoe

Subject for today: "Blackstone's Ratio"

The criminal justice system that operates

in our beloved country serves the citizenry well, but it can hardly be labeled "perfect"; For as long as man is allowed to govern himself in civilized society, there will always be the need for a system to ascertain guilt, protect society from evildoers, and punish those found truly guilty by a jury "of their peers". Our justice system is an attempt to ascertain guilt by a process of examining the evidence, relying more on objective findings than high emotions during the trial procedure, though, in a case of extreme irony, it is often emotion, proffered by either the defense attorney or the prosecutor, that determines the outcome! There is both good and bad in such a system of checks and balances as we have today; One has only to recall the recent sensational trial in Florida to be chagrined by the fact that juries are, after all, only comprised of humans, with susceptibilities and inherent flaws which can be easily swayed or influenced by a good emotional presentation by a clever attorney. Or, conversely, by a straightforward presentation utterly devoid of emotion, relying instead on gaps in the prosecution's presentation of evidence—just enough to create "a reasonable doubt" on the part of only one juror—out of twelve. If a defendant is not proven guilty "beyond a reasonable doubt, and to a moral certainty", the courts have no choice but to let the defendant walk. Such a "safety valve" is built in to our system of justice, in order that fewer innocent become unfairly incarcerated or punished. One might say that another "safety valve" is the fact that the twelve selected jurors usually have had not one minute of legal training; Their entire decisions must be made after filtering the evidence and arguments of both sides through their own individual mind filters—which are, for all of us, simply tabula mensa—"tablets" of our minds—upon which are written billions of "sound bytes" and impressions, all of which form the basis of every conscious decision we make—whether we know it, or are aware of it, even only slightly.So where did this flawed system originate? Our forefathers, in an honest effort to avoid just that sort of thing—where the innocent are convicted—took active steps to avoid in the New World what was so commonplace in the Old World. In criminal law, there is a principle called "Blackstone's formulation", or "Blackstone's ratio", which states that very thing. To wit: "better that ten guilty persons escape than that one innocent suffer".

This caveat, which made its way into English Law, emanates from Judge William Blackstone in his "Commentaries on the Laws of England", published in the 1760's.

Though over 250 years old, this principle, expressed different ways, is much, much older even still. An early example of the principle is stated in the Bible (Genesis 18:23-32) when Abraham argued with God over the fate of sinners in the "wicked city".

The twelfth-century Greek legalist Maimonides, citing this passage and also Exodus 23:7 (the righteous and the innocent slay thou not) executions without sufficient evidence would eventually lead to abuse of power and "judges' caprice". Sir John Fortescue's work "De Laudibus Legum Angliae" (In Praise of the English Law) around 1470 railed against the possibility of innocents being put to death. On October 3, 1692, Increase Mather (son of Cotton) decryed the Salem witch trials, on the same grounds, that some innocents might be wrongly convicted and burned at the stake. Benjamin Franklin was also a proponent of the "save the innocent" principle. However, as it is with every social principle or finding, such notable statesmen as Otto von Bismarck declared that it is better to punish twenty innocent than allow one guilty person to escape "justice". Even such horrid dictators as Cambodia's Pol Pot is said to have similar views. Volokh cites a Chinese professor saying "Better for whom?"

In short (too late?), The American trial-by-jury system "represents the best of God on Earth", so said Chief Justice Thurgood Marshall. As much as we might be frustrated with seeing what we strongly feel or sense might be allowing a vicious criminal to "walk" due to either lack of concrete evidence or a poor presentation by the Prosecution, Blackstone's ratio must be given due homage, until one of us comes up with something better to protect both society and its members.

Steve H Kehoe

9-22-2011