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I join Mr. King's foray into this minefield below the fleur-de-kos, with the hope I can avoid stepping on the many mines.

While King has both feet in his mouth, there is a problem with the analysis in the Salon piece: burden of proof.

The burden of proof is always on the accuser whether the accused is Woody Allen or the Republican Governor of New Jersey, whether the accusation is homicide or littering. That is so in court and it should be so in the court of public opinion.

The two differences in the court of public opinion are that there are no rules of evidence and the burden of proof may be as heavy or as light as any individual wishes. Therefore, individuals tend to go off on how they feel in the abstract about either the type of accusation or the person accused.

It's entirely appropriate that some people may stand convicted in the court of public opinion who could never be convicted in a real court. But, even taking that into account, if there is any burden of proof at all then it rests on the accuser and to presume innocence is not to presume that the accuser is a "liar," because there are any number of ways to account for untrue accusations that do not involve lying, and I would argue that those ways are more common than out and out lies.

Most of the ways adults wind up giving factually incorrect testimony affect children more than adults.

There are cases of people going to prison on the uncorroborated word of a three year old.  I am actually OK with this in the court of public opinion.  If an individual is willing to defend that quantum of proof, then they get to weigh in on their reasons, and the public can either agree or not.

As a judge, I have a problem with the "beyond a reasonable doubt" standard in "swearing match" cases between adults and even when one of the swearers is a law enforcement officer. Because cross examination is such an excellent tool in skilled hands, I am seldom put to that decision.

Public opinion is a different animal, granted.

Still, as long as any burden of proof exists, it must rest on the accuser.  Application of that rule does not entitle the accusing to say "you called me a liar!"  You've done nothing of the kind. What you have done, if you find the evidence insufficient, is said that the accuser's credible statement did not overcome a credible denial because there was no cross examination or no other evidence or anything else to break the tie.

That's what burden of proof does.  That's how it operates.  Burden of proof does not even figure in unless you believe the accuser, at least to say "I believe you because I have no reason to disbelieve you."  It's only after that wicket you even look around on the other side and ask what weighs in for the accused and whether it's heavy enough.

It hard to see what character assassination adds to the discussion, and that's why Mr. King is standing....or rather sitting...awkwardly.  You can't stand with both feet in your mouth.

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Comment Preferences

  •  Tip Jar (3+ / 0-)
    Recommended by:
    Jay C, dov12348, coquiero
  •  It isn't just the word of the child, though (11+ / 0-)

    Multiple adults saw behavior by Allen towards Dylan prior to discovery of his sexual relationship with Dylan's sister (and the ensuing break up and custody battle) that seemed inappropriate. He was in therapy about it.

    The warning signs were there, in blinking neon.

  •  Michele Bachmann has the same effect. n/t (0+ / 0-)

    I'm not always political, but when I am I vote Democratic. Stay Democratic, my friends. -The Most Interesting Man in the World

    by boran2 on Tue Feb 04, 2014 at 12:18:07 PM PST

  •  I'm not sure about this ... (1+ / 0-)
    Recommended by:
    The burden of proof is always on the accuser  [...] That is so in court and it should be so in the court of public opinion.
    The thing is, that's the rule in court because the court has immense power which needs to be held in tight rein.  That's why we have such strict, narrow, formal rules about when and how somebody can be found guilty.

    Public opinion has no such rules because it needs no such rules.  Public opinion isn't the organized monolith that the court system ostensibly is; public opinion is nothing but a bunch of individuals each having an opinion, and ultimately has no power and no authority.  It doesn't work the way the court system does because it shouldn't, and because it can't.

    "Innocent until proven guilty" is only a necessary principle when "proven guilty" means one can be punished.

  •  Question (0+ / 0-)

    You state:

    Burden of proof does not even figure in unless you believe the accuser, at least to say "I believe you because I have no reason to disbelieve you."  It's only after that wicket you even look around on the other side and ask what weighs in for the accused and whether it's heavy enough.
    So if the accuser is credible because we don't know that person to lie, then the burden of proof that the accused didn't do it turns to the accused? I must be misreading this.

    Best Scientist Ever Predicts Bacon Will Be Element 119 On The Periodic Table

    by dov12348 on Tue Feb 04, 2014 at 12:47:14 PM PST

    •  yes, you misread it (0+ / 0-)

      And I can't see how.

      No defendant has to say a word.

      If the accuser is not credible, that's a not guilty WHEN NO DEFENSE IS OFFERED.

      If the accuser is credible, that testimony is sufficient to convict.  Why would it not be?

  •  when it comes to rape (7+ / 0-)

    i'll believe the accuser over the accused until I'm proven wrong. Woody Allen is a predator. Comedy has been making edgy jokes about it since 1994!

    Stephen King shoulda just not said anything at all.

    Dawkins is to atheism as Rand is to personal responsibility

    by terrypinder on Tue Feb 04, 2014 at 01:03:42 PM PST

    •  King should stick to what he does best-- (2+ / 0-)
      Recommended by:
      crose, coquiero

      namely writing good horror novels. He should not have weighed in on Allen.

      So many books--so little time. Economic Left/Right -7.88 Social Libertarian/Authoritarian -6.97

      by Louisiana 1976 on Tue Feb 04, 2014 at 01:57:39 PM PST

      [ Parent ]

    •  Correct me if my memory is wrong... (0+ / 0-)

      but it's telling me that 25% of the rape cases where the Innocence Project was able to get DNA tests post-conviction excluded the "convicted rapists" as the donors.  There was, of course, usually a rape....but the wrong person was accused.

      The major challenges for eyewitnesses include (1) stress (I've never been raped, but I imagine it's stressful) and (2) ID across races.

      When rape carried the death penalty, most of the executed were black men accused of raping white women.

      Maybe most of them were guilty.

      I have no confidence in the quality of those trials, conducted under procedures flawed in oh so many ways.

      I presume most Kossacks would agree those were the bad old days.

      Where I probably differ is when I say I would not trust my life to the quality of trials in much of the country in the year 2014.  But I'm picky.

      •  I'm absolutely certain (0+ / 0-)

        that mistaken identity is not a valid defense for Woody Allen.

        •  you make my point nicely (0+ / 0-)

          Which was, that when determining what the rules ought to be, you have to pry yourself loose from any particular case.

          Notice I haven't given my opinion about this case.

          That would be because I don't have one.

          I would certainly not be persuaded by the quotation from Stephen King one way or the other.

          I would mention that I did not read the "palpable bitchery" comment to refer to the child, but rather the mother.  I could be wrong, and there's no way to make it a sensible comment, not matter to whom he refers.

          •  I was, frankly, mystified (0+ / 0-)

            about why you brought up the Innocent Project and the subject of false ID's, in the context of a diary about the alleged molestation of a child by her own father.  Sometimes, rape victims do make incorrect identifications of strangers. Yes, this is true.

            But that doesn't have anything at all to do, in my mind, with a child's accusations about someone she clearly knows.

            I would certainly hope no one would be persuaded by anything Stephen King has to say about this, or anything else, about which he has no personal knowledge.

            It seems a strain to try to construe his comment to refer to Mia Farrow, rather than to Dylan Farrow. He was commenting on Dylan Farrow's very specific account of how Woody Allen abused her when she was a child.

            •  Because (0+ / 0-)

              In my mind I was not talking about the Woody Allen case.

              I was talking about the criminal burden of proof and the differences between a court and a public expression of opinion.

              The relevance of the Woody Allen case is that either because of the type of crime or because of opinions about the individual, people seem to wander off into the weeds re how we deal with misconduct, officially or unofficially.

              It just can't be the case that an accusation is all that is necessary.  That is as preposterous as "a police officer has no motive to fabricate and therefore is always more credible than a civilian," an argument that used to be the bane of my existence.

      •  that's why I say "prove me wrong" (0+ / 0-)

        most rapes are never reported because the assaulted have a tough time being believed.

        Dawkins is to atheism as Rand is to personal responsibility

        by terrypinder on Wed Feb 05, 2014 at 12:17:34 PM PST

        [ Parent ]

        •  Huh? (0+ / 0-)

          That cannot, by its nature, be proven one way or the other.  There's a substantial body of research that says rape is underreported, and I find it persuasive, but "most?"  I'm not sure how we would know that?  I can make an argument that it's probable based on, for example, the reporting rate in a situation much more amenable to reporting than the US.  

          You can't do a straight up comparison between the UCR and the NCVS because they don't use the same definitions.

  •  this comes closest to my position (0+ / 0-)

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