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Rickards, Nicholas and Flaws in the Adversarial System

November 14th, 2008 by Madeleine

As someone who intends to share the same career as Clint Rickards I have to say I am uncomfortable hearing that the NZ Law Society has granted Rickards a certificate of character to practice law. I am uncomfortable because the legal system forces us into an absurd position that everyone knows is farcical and yet it must be maintained in the name of justice. Let me explain.

We know that:

1. A person is innocent of a crime until proven guilty.
2. Rickards was not proven guilty of rape.
3. Nicholas claimed that Rickards did rape her.
4. Perjury is a crime.
5. Nicholas has not been found guilty of perjury (or even tried).

The problem is that if you accept 1. then you are required (by 2.) to conclude that Rickards is innocent and therefore the allegation made in 3. is false.

However, if you accept 1. then you are required (by 4. and 5.) to assume that Nicholas is innocent and therefore the allegation made in 3. is true.

Therefore, acceptance of the presumption of innocence requires us to believe both that Rickards did and did not rape Nicholas and it requires us to believe both that Nicholas did and did not commit perjury.

Obviously this is rationally impossible. We know that it cannot be true that both parties are innocent or that both parties are guilty.

The presumption of innocence requires us to believe such nonsense. Given we are talking about serious things such as rape and false allegations thereof, we are extremely uncomfortable adopting positions we know are false (and we know it is false that he both raped and did not rape and she perjured and did not perjure).

So I am right to not feel comfortable about accepting Rickards’ innocence even though legally I know I must and I am uncomfortable about branding Nicholas a liar because at least with Rickards he was tried, Nicholas has not been, (despite what some idiots think).

The problems with the presumption of innocence do not stop at logical absurdities. Another problem is that to claim someone is innocent under the adversarial system, simply means they have not been proved guilty. This is not the same thing as saying they have been proved innocent. “Not guilty” means that the high evidential standard was not met; it is possible to reasonably doubt the accusation. Of course the accusation could be more probable than not, it could be highly probable, it could be completely ridiculous to entertain but it is not certain. Basically a “not guilty” verdict under the adversarial system simply tells us where the benefit of the doubt should lie; it does not remove the doubt.

Related Posts: Labour Erodes More Human Rights: The Criminal Procedure Bill

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8 responses so far ↓

  • There are four things I would say about that argument.

    1. The presumption of innocence has no particular connection with the adversarial system. Either can exist without the other.

    2. The principle should more accurately and completely stated as: “For the purposes of punishment, the state should presume a person is innocent unless they are proven guilty beyond reasonable doubt.”.

    The key additions being that the presumption applies only to the state, not private citizens (eg employers) and only for the purpose of punishment.

    For fitness to be a lawyer or teacher, or in any other non-punishment context, the beyond reasonable doubt standard need not apply and a balance of probabilities or other standard may be used instead.

    3. People have been admitted to the bar in the past after having being convicted of fairly serious crimes. So there is a precedent for this.

    4. The test is forward looking not backward looking, and the likelihood of Rickards offending in future may not be high.

  • Whilst there is a precedent and I am not denying 3. and 4. that does not mean I am happy about it. Lawyers, like politicians, should be ethical people of high character. Instead the professions are the butts of jokes. I would prefer to see standards raised and the precedent re-set.

    I really liked your comments on 2.

    As for 1. I started out going somewhere else with that post, more focussed on the adversarial system, and then changed my tack. I did make a mental note to make sure I was not tying the adversarial system to the presumption of truth, as you are quite right the two are not tied, the Inquisitorial system uses it too, but then I got distracted and forgot until you mentioned it – now I feel like an egg. LOL!

    Thanks for your comments 🙂

  • There are four things I would say about that argument.

    1. The presumption of innocence has no particular connection with the adversarial system. Either can exist without the other.

    2. The principle should more accurately and completely stated as: "For the purposes of punishment, the state should presume a person is innocent unless they are proven guilty beyond reasonable doubt.".

    The key additions being that the presumption applies only to the state, not private citizens (eg employers) and only for the purpose of punishment.

    For fitness to be a lawyer or teacher, or in any other non-punishment context, the beyond reasonable doubt standard need not apply and a balance of probabilities or other standard may be used instead.

    3. People have been admitted to the bar in the past after having being convicted of fairly serious crimes. So there is a precedent for this.

    4. The test is forward looking not backward looking, and the likelihood of Rickards offending in future may not be high.

    Whilst there is a precedent and I am not denying 3. and 4. that does not mean I am happy about it. Lawyers, like politicians, should be ethical people of high character. Instead the professions are the butts of jokes. I would prefer to see standards raised and the precedent re-set.

    I really liked your comments on 2.

    As for 1. I started out going somewhere else with that post, more focussed on the adversarial system, and then changed my tack. I did make a mental note to make sure I was not tying the adversarial system to the presumption of truth, as you are quite right the two are not tied, the Inquisitorial system uses it too, but then I got distracted and forgot until you mentioned it – now I feel like an egg. LOL!

    Thanks for your comments 🙂

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