Posted by Petra on November 17, 1997 at 18:18:34:
In Reply to: English Law posted by Neuromancer on November 17, 1997 at 15:52:03:
HOWEVER, in England, and France and most other European countries.....the accused is
: : presumed GUILTY unless proven innocent. It is the defense attorney's job to DISPROVE the case against his client, not the
: : duty of the state to PROVE the case. Therein lies the difference.
: As a law student in the England, take it from me that the existance of English Common Law means that in England, the Commonwealth and some former colonies (esp. the USA) Law is very similar. Here in England, it is innocent until proven guilty, whereas in most of the rest of Europe (as you quite rightly said) it is guilty until proven innocent - a bit unfortunate for us Crown Prosecution guys. Oh well.
Guys, what are you talking about?? Sorry, but you are somewhat mistaken there, continental Europe does not consider the accused guilty until proven innocent, no way! As for German criminal law, the court must be "convinced" that the accused committed the crime, Section 261 of the German Rules of Criminal Procedure (Strafprozessordnung, or StPO). There is no set percentage of probability for the standard of proof (as you may know, in American law, the standard of proof in civil cases - "by a preponderance of the evidence" - is interpreted as a probability of more than 50% while the standard for criminal cases - "beyond a reasonable doubt" - is considered as being somewhere around 90%), but a high probability is definitely required. The German criminal law, just like American law, distinguishes between defenses and elements of the crime (every punishable crime is defined in the criminal code, outside of those definitions there can be no crime). Contrary to American courts, German courts will look into all possible defenses even when the defense (as in cases of poor lawyering) overlooked one.
Well, I'm tempted to go on, but I think I've made my point as to the fairness of trials in continental Europe (I believe, other European countries take similar approaches). So, please don't spread those misperceptions any more.
Petra