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BURDEN of PROOF

  
PUNISHMENT  in our Criminal Justice System requires PROOF BEYOND A REASONABLE DOUBT.

BUT we have ASSUMPTIONS regarding the MENTAL ELEMENT of the CRIME --- CRIMINAL INTENT --- which don't appear to be true.
  • Most people with some form of Significant Cognitive Disability/Difference --- are NOT PSYCHOTIC.
  • Further, most of these Significant Cognitive Disabilities/Differences involve INNATE & ADAPTIVE IMMUNITY that's affecting DECISION-MAKING, EMOTIONAL EXPRESSION & ACTIONS.
  • Interestingly, these WRONG ASSUMPTIONS regarding INTENT are affecting NOT JUST Criminal Justice and the Society at large --- those WRONG ASSUMPTIONS are affecting CLINICIANS and EVALUATORS as well.
 
  • Now in Mental Health,  constructs had been developed in an attempt to understand "Mental Illness" and "Personality Disorders" BUT those constructs weren't tied to the UNDERLYING BIOLOGY --- because that UNDERLYING BIOLOGY wasn't available --- think the DSM Series and the current DSM 5.
 
  • Now in the 21st Century with even greater TECHNOLOGY and building on what so many generations had done before ----- THE RESEARCH ISN'T LINING UP WITH THE DSM 5.   
 
  • Most concerning from a Criminal Justice perspective ---- most psychiatric disorders are starting out as DEVELOPMENTAL DIFFERENCES.
 
  • That appears to include --- "Anti-Social Personality Disorder."
 
  • Surprisingly, it also appears to include Substance Issues.
 
  • Evolutionary Biologist Graham Rook at University College London cites a statistic that approximately 90% of Americans have LOW GRADE INFLAMMATION.
    • ​LOW GRADE INFLAMMATION is associated with "INTELLIGENCE."
      • Conjecture:  I think most people with Brain Injury, Mental Illness, Substance Issues and Developmental Disabilities have MEDIUM to HIGH GRADE INFLAMMATION.
      • The Higher Up that INFLAMMATION GRADE one goes --- the further one gets from a NOTION of TRADITIONAL AVERAGE.
      • When we say we're EMPATHETIC to PEOPLE, often what we mean is we UNDERSTAND them because the ASSUMPTIONS we have about them seem to PROVE TRUE.
      • ​When those ASSUMPTIONS don't prove true --- it's generally a problem with them NOT OUR ASSUMPTIONS.

Where are we at regarding LEVELS of PROOF?
  • If we say Criminal Offenses should be proven BEYOND A REASONABLE DOUBT
  • What level of proof and rationales do we need to FURTHER MODIFY the CRIMINAL JUSTICE SYSTEM to a PUBLIC HEALTH APPROACH to CRIMINAL JUSTICE
    • ​Recognizing that the Democratic Process can do largely what it pleases if it has a RATIONAL BASIS --- but our current Criminal Justice System IS NOT RATIONAL.

Preponderance of the Evidence

Preponderance of the evidence is one type of evidentiary standard used in a burden of proof analysis.

Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.

preponderance of the evidence | Wex | US Law | LII / Legal ...https://www.law.cornell.edu › Wex
Opinion -- Visual Stories


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Proof Beyond a Reasonable Doubt

In Criminal Cases, what has to be proven BEYOND A REASONABLE DOUBT?
  • Each & Every Element of the Crime
  • That Includes the "Mental Element" --- the actions were committed "intentionally," "willfully"  --- whatever

What's the PROBLEM?
  • Most Crimes are committed with some type of BAD INTENT
  • The PROBLEM is NOT with the ELEMENT itself BUT the ASSUMPTION BEHIND IT --- BAD INTENT is the expression of UNFETTERED FREE WILL or at least UNFETTERED ENOUGH.
  • BUT what if --- that BAD INTENT is more indicative of a BRAIN INJURY, DEVELOPMENTAL DISABILITY, MENTAL ILLNESS or SUBSTANCE ISSUE.
  • And a note about Substance Issues --- they often go hand in hand with Brain Injury, Developmental Disability and/or Mental Illness.

  • So the PROBLEM is we don't have the BASIS for PUNISHMENT Beyond a Reasonable Doubt --- but we probably do have a BASIS for CIVIL COMMITMENT or "SOMETHING" under a CLEAR & CONVINCING EVIDENCE STANDARD with respect to SERIOUS FELONIES.

  • A number of people with SERIOUS COGNITIVE DISABILIES are on the Restraining Order Dockets and Misdemeanor Dockets --- and at least a few of them were put there by their own MENTAL HEALTH CENTERS.

  • This is a HUGE FAILURE of those MENTAL HEALTH CENTERS & the STATE in FAILING to provide for the HIGH END OF THE CONTINUUM OF CARE.

  • We need HOUSING, SERVICES & PLACEMENTS TO SCALE.  
Slide Share
Due Process generally requires some type of CLEAR & CONVINCING STANDARD of PROOF for Civil Commitment.

​CLEAR and CONVINCING is MORE THAN PROPONDERANCE OF THE EVIDENCE because it may involve significant DEPRIVATION OF LIBERTY.

But it is NOT PROOF BEYOND A REASONABLE DOUBT because it does not involve PUNISHMENT.

See "Due Process in Civil Commitments," Alexander Tsesis, Loyola Law Review (2011) 

According to the Supreme Court in Colorado v. New Mexico, 467 U.S. 310 (1984), "clear and convincing” means that the evidence is highly and substantially more likely to be true than untrue; the fact finder must be convinced that the contention is highly probable.

Clear and Convincing Evidence
| Wex | US Law | LII / Legal ...https://www.law.cornell.edu › Wex