The Criminal Justice System

[Costello]

Sorry to be the one to break it to you, but the American criminal justice system is fundamentally unjust and unfair. Do not expect fairness or justice to ever enter into the equation.

Whether it be plea bargaining, an insanity clause, bartering or leniency in exchange for information. It's so far removed from just it's laughable.

[Costello]

The degree system is why. You'll get a lighter sentence if you are an accessory.

[Picard]

I am not familiar with the US justice system but I doubt it is all that different from it's counterparts in Britain and Canada.

There are two parts to a criminal infraction, the actus reus (which is the action itself) and the mens rea (which is the intent). It's all very complex and I won't go into details but if you manage to prove that their was no intent, depending on the infraction you can be acquitted. Say you kill someone, he's dead so the actus reus is there. But someone put drugs in your drink that brought you into a state of psychosis and you killed someone. You will be acquitted (using the defense of mental alienation). However say you were just having a small fight - this time not under the influence of anything but you never had the INTENT to kill the person, then this can't be murder because you never had the intent to kill him (mens rea) does that mean that you would also be acquitted? No because most justice system have what we call culpable homicide for which as soon as you commit an action where there is a risk of causing bodily harm and the person dies you are guilty of culpable homicide (you don't get as much jail as you would if you were guilty of murder). If there was no risk of bodily harm, then you'll be acquitted, it's what we call an accident. The proof of the mens rea has to be done in order for the accused to be guilty.

Also keep in mind that for the criminal justice system the prosecution has to prove beyond any reasonable doubt the elements of the actus reus and mens rea. Two people firing at one person at the same time and there is no way to tell which person bullet killed the victim, the two will be acquitted. It's the prize to pay to make sure no one is unjustly put in jail.

Nothing is perfect but it sure as hell beats the justice system of totalitarian regimes.

[Shroombuck]

Let's set aside the excellent efforts of those who have no law degree. It takes specialised legal education for several years to become familiar, like I have, with say, corporate law or comparative family law. Laws are spider webs through which the big flies pass and the little ones get caught. In the United States the law is primarily concerned with property rights under the legal definition of ownership. We have often heard: possession is nine-tenths of the law. Yes, there are codices that deal with questions dealing with questions of homicide, felony, larceny, theft, substance control, etc., but in the final analysis, most of it is about relationship to property and to one another in that relationship. The law is excessively complicated. The United States has the highest incarceration level in the world. More than 5.6 million Americans are in prison or have served time there, that's 1 in 37 adults living in the United States.

We all know the rule in baseball: three strikes and you're out. It's the same in the United States, because there are three strikes laws, which are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offence on three or more separate occasions (persistent offenders). A person should not be sentenced to life imprisonment for stealing food. If they are so sentenced, how does this differ from sentencing for murder one, where the murderer gets life imprisonment. Punishment should suit the crime, but in this scenario, it does not and others suffer the same punishment as an assassin or terrorist. In the post 9-11 era, we have seen the enactment of the Patriot Act, the Homeland Securities Act and the end of habeas corpus in the United States. It is now possible to be arrested without charge, held indefinitely and spirited away to be tortured in an out-sourced prison.

It's strange that men should take up crime when there are so many legal ways to be dishonest.

[Costello]

Let's set aside the excellent efforts of those who have no law degree. It takes specialised legal education for several years to become familiar, like I have, with say, corporate law or comparative family law. Laws are spider webs through which the big flies pass and the little ones get caught. In the United States the law is primarily concerned with property rights under the legal definition of ownership. We have often heard: possession is nine-tenths of the law. Yes, there are codices that deal with questions dealing with questions of homicide, felony, larceny, theft, substance control, etc., but in the final analysis, most of it is about relationship to property and to one another in that relationship. The law is excessively complicated. The United States has the highest incarceration level in the world. More than 5.6 million Americans are in prison or have served time there, that's 1 in 37 adults living in the United States.

We all know the rule in baseball: three strikes and you're out. It's the same in the United States, because there are three strikes laws, which are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offence on three or more separate occasions (persistent offenders). A person should not be sentenced to life imprisonment for stealing food. If they are so sentenced, how does this differ from sentencing for murder one, where the murderer gets life imprisonment. Punishment should suit the crime, but in this scenario, it does not and others suffer the same punishment as an assassin or terrorist. In the post 9-11 era, we have seen the enactment of the Patriot Act, the Homeland Securities Act and the end of habeas corpus in the United States. It is now possible to be arrested without charge, held indefinitely and spirited away to be tortured in an out-sourced prison.

It's strange that men should take up crime when there are so many legal ways to be dishonest.

There we have the great benefit of a degree. To speak of many things and to say so little.

[Picard]

Let's set aside the excellent efforts of those who have no law degree. It takes specialised legal education for several years to become familiar, like I have, with say, corporate law or comparative family law. Laws are spider webs through which the big flies pass and the little ones get caught. In the United States the law is primarily concerned with property rights under the legal definition of ownership. We have often heard: possession is nine-tenths of the law. Yes, there are codices that deal with questions dealing with questions of homicide, felony, larceny, theft, substance control, etc., but in the final analysis, most of it is about relationship to property and to one another in that relationship. The law is excessively complicated. The United States has the highest incarceration level in the world. More than 5.6 million Americans are in prison or have served time there, that's 1 in 37 adults living in the United States.

We all know the rule in baseball: three strikes and you're out. It's the same in the United States, because there are three strikes laws, which are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offence on three or more separate occasions (persistent offenders). A person should not be sentenced to life imprisonment for stealing food. If they are so sentenced, how does this differ from sentencing for murder one, where the murderer gets life imprisonment. Punishment should suit the crime, but in this scenario, it does not and others suffer the same punishment as an assassin or terrorist. In the post 9-11 era, we have seen the enactment of the Patriot Act, the Homeland Securities Act and the end of habeas corpus in the United States. It is now possible to be arrested without charge, held indefinitely and spirited away to be tortured in an out-sourced prison.

It's strange that men should take up crime when there are so many legal ways to be dishonest.

While I greatly respect your area of expertise I feel bound by curiosity to ask why such an emphasis on private law? Because as you know criminal justice is a matter of public law. How is possession relevant in determining one's verdict in the criminal justice system? Isn't it an element of proof? Plus isn't possession just one part of ownership, which makes the two terms legally very different (ex: prescription). I am a civilist, to us ownership is the (usus, fructus, and abusus). And possession would just be the usus. All this comes from Roman Law. Perhaps there is some remnants of this in your common law from before it's unification (Judicature Act). Back when there was a Court of Equity which was using bits of Roman Law. I'd like to have your views on this since I am no common law expert (except maybe knowledge of Canadian criminal justice) but then again we have a criminal code.

[Shroombuck]

Well, the legal definition of possession is much wider than the normal definition. Possession is prima facie evidence of ownership and anyone desiring to disturb it must show either a title or a better possessor right. Hence the phrase possession is nine-tenths of the law. Possession means either actual possession or constructive possession. Actual possession means physical possession, such as having the object on one's person. Constructive possession means having the object in a place under one's dominion and control. Possession also requires knowledge. In criminal law possession generally denotes control which must be exercised intentionally and with knowledge of the character of the controlled object. The idea of ownership follows the idea of possession. The ownership is the de jure recognition of the right over the object, whereas possession is de facto exercise of a claim over the object. Possession is thus pretty much the objective realisation of ownership, i.e. the external significance of ownership.

[Picard]

Yes, this is exactly the same over here. Acquisitive prescription runs while someone has possession. (if he believes truly believes to be the owner) if he is just the guardian then it dosen't work. At any time someone can start a revendication action to have his title recognized. However it's much easier for someone who has possession to be protected in his possession since effective possession is easily proven. All this is private law and has little to do with criminal law.

The only link I can think of with criminal law is if someone is found with an illegal object at which point does he have effective possession on the said object. Ex: someone throws you a bag of drugs? Are you the guardian/do you have possession. Our penal system recognizes 3 types of possession: personal, innocent, and joint. (I might be doing a poor translation job)

Personal = The crown has to prove knowledge of the object and a certain control over it by the individual.
Innocent = (The example I gave about the bag of drugs being thrown at you)
Joint = Second person had a certain consent about having the objet and also has a certain control.

Attributed possession = The fact that you give your drugs to someone else does not mean you cease to own them.

Back to private law, do you have responsibility without fault over in the UK? (for a damage claim)

[Shroombuck]

A loss, injury or damage is compensable in law only if the person can show that another person was at fault. Negligence, for example, alone does not entitle a pursuer to damages in compensation for harm or loss. In addition to negligence (breach of a duty of care), the pursuer must show a direct causal connection between the breach of duty (the fault) and the injury suffered (the damage or harm). In the UK there is, therefore, no entitlement to compensation unless causation can be established.

[Picard]

It used to be like that here as well until our supreme court judged that (in one of our article (976 C.c.Q)) ''Neighbors shall suffer the normal neighborhood annoyances that are not beyond the limit of tolerance they owe each other, according the the nature or location of their land or local custom''.

They concluded that even if the neighbor has respected every law in place, the simple fact that his actions were beyond the normal limit of the neighborhood causes a fault. So there is now in Canada responsibility without fault. But for everything it's pretty much the same as you say. It takes a damage, fault and causality link to prove responsibility unless there is a irrefragable presumption on the shoulders of the defendant. I was curious because this has caused head aches to many people and I was wondering if there was something similar in the UK. I do believe you have in the UK something our criminal code does not have which is diminished responsibility. I don't know where you stand on the ''abuse of rights'' doctrine. But in several cases our courts have concluded that even if one fully respect the contract clauses it can constitute an abusive behavior and thus cause the nullity of the contract.