From David Friedman’s Legal Systems Very Different from Ours: Athenian Law: The Work of a Mad Economist … Most law cases were either public or private. A public case corresponded roughly to our criminal cases; it was supposed to be for an offense that injured not merely a single person but the whole community. At one time such cases may have been prosecuted by magistrates but by our period that was possible only for minor charges. The ordinary procedure was for the case to be privately prosecuted by any male citizen who chose to do so. The prosecutor would, for many but not all sorts of cases, receive a substantial fraction of any resulting fine, sometimes as much as half, as his reward. If the case was based on the claim that the defendant was holding property that properly belonged to the state, a successful prosecution would result in half of the property forfeiting to the state, half to the prosecutor.
I don't think this is correct. I see it more as Not Proven is we think you did it but we can't be sure beyond a reasonable doubt. Then Not Guilty from there's reasonable doubt through not sure either way to we think you're innocent.
Scotland actually has a three verdict system, 'guilty', 'not guilty' and 'not proven'. In this system, 'not guilty' corresponds roughly to the jury actively believing the defendant is innocent. It seems like this is pointing to a similar idea to your categories. But I don't think there are any penalties to the prosecutor for a 'not guilty' verdict.
In terms of balancing the punishment, an easy approach is to have a fine (tied to the severity of the crime) from the DA's office that is split between the defendant and the public defender's office.
What is the advantage of using a large penalty when the accused is found to be provably innocent vs a small penalty whenever the accused is found not guilty?
How far into the process should a prosecutor be able to go before they cannot drop it without penalty?
I want to back off a bit on the above: It’s more accurate to say that I haven’t heard a good reason why we should diverge from the usual criminal standard of proof for this kind of charge.
I think that as with the original charge, a person should not be declared guilty of the charge of knowingly prosecuting the innocent if this has not been established beyond a reasonable doubt.
I didn't mean to suggest requiring proof what prosecutors knew when. Yes, in criminal proceedings when beyond reasonable doubt is the standard for showing guilt, failing to show a preponderance of evidence does seem a good threshold standard for sanctions.
1. What would be the burden for finding the prosecutor prosecuted the innocent knowingly? Beyond any reasonable doubt too? By a preponderence of the evidence?
2. Who needs to have the required mens rea? Prosecutors usually act as teams or at least under the supervision of their office. It's not clear who the knowingly should apply to.
3. Proving that the prosecutor knew they were prosecuting the innocent seems like it would require separate fact-finding. How would that be handled? It seems like it would require access to things like internal memos by the prosecutor which might be legitimately good to keep private. Also, that fact-finding process seems like it would interfere with the trial.
I'd like to propose an alternative that seems easier to implement:1. The jury decides whether the defendent is guilty or not guilty beyond a reasonable doubt.
2. The jury then re-examines all the charges for which the defendent was not found guilty beyond any reasonable doubt and decides if the defendent is guilty by a preponderence of the evidence.
3. For every charge where the defendent cannot be found guilty by a preponderence of the evidence, the prosecutor is sanctioned. (At the very least, the prosecutor's office reimburses the defense for its costs.)
The advantage of this approach is that it does not require any additional facts to be brought to the attention of the jury.
I don't think this is correct. I see it more as Not Proven is we think you did it but we can't be sure beyond a reasonable doubt. Then Not Guilty from there's reasonable doubt through not sure either way to we think you're innocent.
Scotland actually has a three verdict system, 'guilty', 'not guilty' and 'not proven'. In this system, 'not guilty' corresponds roughly to the jury actively believing the defendant is innocent. It seems like this is pointing to a similar idea to your categories. But I don't think there are any penalties to the prosecutor for a 'not guilty' verdict.
In terms of balancing the punishment, an easy approach is to have a fine (tied to the severity of the crime) from the DA's office that is split between the defendant and the public defender's office.
What is the advantage of using a large penalty when the accused is found to be provably innocent vs a small penalty whenever the accused is found not guilty?
How far into the process should a prosecutor be able to go before they cannot drop it without penalty?
I want to back off a bit on the above: It’s more accurate to say that I haven’t heard a good reason why we should diverge from the usual criminal standard of proof for this kind of charge.
I think that as with the original charge, a person should not be declared guilty of the charge of knowingly prosecuting the innocent if this has not been established beyond a reasonable doubt.
I didn't mean to suggest requiring proof what prosecutors knew when. Yes, in criminal proceedings when beyond reasonable doubt is the standard for showing guilt, failing to show a preponderance of evidence does seem a good threshold standard for sanctions.
1. What would be the burden for finding the prosecutor prosecuted the innocent knowingly? Beyond any reasonable doubt too? By a preponderence of the evidence?
2. Who needs to have the required mens rea? Prosecutors usually act as teams or at least under the supervision of their office. It's not clear who the knowingly should apply to.
3. Proving that the prosecutor knew they were prosecuting the innocent seems like it would require separate fact-finding. How would that be handled? It seems like it would require access to things like internal memos by the prosecutor which might be legitimately good to keep private. Also, that fact-finding process seems like it would interfere with the trial.
I'd like to propose an alternative that seems easier to implement:1. The jury decides whether the defendent is guilty or not guilty beyond a reasonable doubt.
2. The jury then re-examines all the charges for which the defendent was not found guilty beyond any reasonable doubt and decides if the defendent is guilty by a preponderence of the evidence.
3. For every charge where the defendent cannot be found guilty by a preponderence of the evidence, the prosecutor is sanctioned. (At the very least, the prosecutor's office reimburses the defense for its costs.)
The advantage of this approach is that it does not require any additional facts to be brought to the attention of the jury.