07 Dec 15
The post that was quoted here has been removedWhat I find interesting is the difference between S.African criminal law and that of the US. Apparently, double jeopardy is not disallowed in SA. In the US, once convicted, or acquitted, the prosecution doesn't get a second bite of the apple.
I think overall, I prefer the American system, where some guilty persons may escape punishment, but it is less likely that an innocent person gets punished.
07 Dec 15
Originally posted by normbenignYou could achieve the same goal by simply acquitting 20% of all cases at random. Would you prefer that too?
I think overall, I prefer the American system, where some guilty persons may escape punishment, but it is less likely that an innocent person gets punished.
07 Dec 15
Originally posted by twhiteheadNo, I prefer that each person gets the opportunity to oppose his accusers in court, and be judged on the evidence by a jury.
You could achieve the same goal by simply acquitting 20% of all cases at random. Would you prefer that too?
Random acquittal would not achieve the same goal. There is no set percentage of acquittals, and the defense has to create some level of doubt about the guilt of the accused.
07 Dec 15
Originally posted by normbenignYes, actually it would. It is your contention that rather than retrying cases that may have been misstried, the accused parties should be allowed to go free. One would hope that mistried cases are random although I suspect they are strongly biased towards the rich (for cases where an accused is set free).
Random acquittal would not achieve the same goal.
07 Dec 15
Originally posted by normbenignIt's not a second trial - it's an appeal and as such it is part of the first trial.
What I find interesting is the difference between S.African criminal law and that of the US. Apparently, double jeopardy is not disallowed in SA. In the US, once convicted, or acquitted, the prosecution doesn't get a second bite of the apple.
I think overall, I prefer the American system, where some guilty persons may escape punishment, but it is less likely that an innocent person gets punished.
07 Dec 15
Originally posted by twhiteheadNot so at all. A mistrial simply indicates that a jury is hung, or the judge for some reason believes evidence presented is tainted and denies the accused a fair hearing. The State may then, go ahead and retry the case, if it feels confident in proceeding minus the tainted evidence.
Yes, actually it would. It is your contention that rather than retrying cases that may have been misstried, the accused parties should be allowed to go free. One would hope that mistried cases are random although I suspect they are strongly biased towards the rich (for cases where an accused is set free).
An acquittal is entirely different. Once charged, tried and acquitted, the accused is free. Remember the OJ Simpson trial.
I don't know if the general assumption that the rich get preferential treatment at trial is true or not. It is true, that they generally get better representation. Quite often indigent defendants get young and ambitious lawyers, looking to make a name for themselves, instead of stodgy old farts, who just charge large fees.
07 Dec 15
Originally posted by KazetNagorraIt still differs from the American system. Once convicted and sentenced in America, the prosecution can't come back and try the case with a more serious charge. It is quite common in America to charge the most serious offense, and include lesser charged offenses, for example: Homicide in the 1st degree, 2nd degree, Manslaughter 1, 2, and 3. This leave the jury with the option of selecting the charge to convict on, or the defense with the option of plea bargaining.
It's not a second trial - it's an appeal and as such it is part of the first trial.
I'll leave the final word to the barristers on the forum, sh76 and no1marauder, they may have a more clear explanation of the differing legal standards.
08 Dec 15
Originally posted by normbenignThey might know American law but that doesn't automatically mean they know SA law.
It still differs from the American system. Once convicted and sentenced in America, the prosecution can't come back and try the case with a more serious charge. It is quite common in America to charge the most serious offense, and include lesser charged offenses, for example: Homicide in the 1st degree, 2nd degree, Manslaughter 1, 2, and 3. This leave ...[text shortened]... , sh76 and no1marauder, they may have a more clear explanation of the differing legal standards.
Pistorius has not been convicted, so far, the motion in court is for murder so that has yet to be decided.
He is not considered a flight risk, for obvious reasons and now wears a leg bracelet to track his movements, confined to his own home, allowed to go out under strict supervision and that only within 20 Km of his home.
08 Dec 15
1 edit
Originally posted by normbenignNorm is correct.
It still differs from the American system. Once convicted and sentenced in America, the prosecution can't come back and try the case with a more serious charge. It is quite common in America to charge the most serious offense, and include lesser charged offenses, for example: Homicide in the 1st degree, 2nd degree, Manslaughter 1, 2, and 3. This leave ...[text shortened]... , sh76 and no1marauder, they may have a more clear explanation of the differing legal standards.
Under American law, a judge cannot increase a charge of which a person was convicted by jury. If the jury finds the person guilty of manslaughter, the judge cannot change it to murder. This is not so much an issue of double jeopardy as it is a violation of the right to trial by jury. A judge can increase a sentence based on aggravating factors, but only to the maximum statutory sentence for the crime that the person was convicted of.
I don't know anything about South African law, but we can still debate whether a judge increasing a conviction or throwing out an acquittal violates a defendant's natural rights. No1marauder once stated on this forum his opinion that a right to trial by jury is a natural right (can't find the thread... he can correct me if I'm wrong). I'm not entirely convinced that's correct, but assuming it is, the question becomes whether Pistorius' natural rights were violated, moving the discussion away from SA law.
08 Dec 15
Originally posted by sh76If the 'natural rights' idea is violated, how does that help Pistorius in this case? Can't the judge just ignore it?
Norm is correct.
Under American law, a judge cannot increase a charge of which a person was convicted by jury. If the jury finds the person guilty of manslaughter, the judge cannot change it to murder. This is not so much an issue of double jeopardy as it is a violation of the right to trial by jury. A judge can increase a sentence based on aggravating facto ...[text shortened]... becomes whether Pistorius' natural rights were violated, moving the discussion away from SA law.
08 Dec 15
Originally posted by sonhouseThat someone's rights are violated does not mean they don't exist.
If the 'natural rights' idea is violated, how does that help Pistorius in this case? Can't the judge just ignore it?
On this forum, we're not going to impact anything, but the fact that the judge can do what he pleases doesn't prevent us from debating whether Pistorius' rights were violated.
08 Dec 15
1 edit
Originally posted by sh76As he sits out his new 12 year jail sentence, 4 years off for time served.....
That someone's rights are violated does not mean they don't exist.
On this forum, we're not going to impact anything, but the fact that the judge can do what he pleases doesn't prevent us from debating whether Pistorius' rights were violated.
Hey, have you ever dealt with patent law? Have question.