Sunday, September 23, 2018

The presumption of innocence

There's currently a debate about whether Kavanaugh ought to enjoy the presumption of innocence.

1. The presumption of innocence is an artificial legal standard. In our system of justice, it's better for a guilty man to go free than for an innocent man to be convicted. That's a good legal standard. For one thing, a defendant has so much to lose in a criminal trial. In addition, the state has resources that most defendants don't. 

2. However, I wouldn't say there's an abstract or general presumption of innocence outside the courtroom. Rather, it depends on the evidence. If there's insufficient evidence one way or the other, the responsible attitude is to suspend judgment.

3. The mentality of secular progressives, exemplified by affirmative consent and campus kangaroo courts, is that when a woman accuses a man of sexual harassment, assault, or rape, the woman is presumptively innocent and trustworthy while the man is presumptively guilty and untrustworthy. 

That's a sexist attitude, and it disregards reality. Sometimes men lie, sometimes women lie. When you throw alcohol into the mix, the accuser or the accused can sincerely misremember. 

There's no justified general presumption, no presumption in the abstract, that a female accuser is the innocent victim, is telling the truth, while the accused is the perp. That can only be assessed on a case by case basis. It depends on specific evidence, or lack thereof. 

4. At this point I support Kavanaugh's confirmation, not based on the presumption of innocence, but because I haven't seen any convincing evidence that he's guilty. I make allowance for the possibility that her story is true. The fact that Kavanaugh hung around Mark Judge makes it likely that he attended some of the same drinking parties. 

But that doesn't make the allegation true or even probably true. What if she was under the influence? What if they were both under the influence? That clouds judgment. 

5. The closest thing to independent evidence is the polygraph. But that's dicey:

i) From what I've read, polygraph results are just slightly better than chance.

ii) We don't know what questions she was asked.

5. In addition, there are holes in her story. 

6. It's important that we not let Democrats win using these tactics. 


  1. 1. In essence, a polygraph test measures one's physical reactions to a series of questions (e.g. heart rate, respiratory rate, blood pressure, sweating).

    These reactions are in turn argued to be correlated with lying. Whether or not that's the case is highly debatable.

    And, of course, correlation isn't necessarily causation.

    2. However, there are a host of issues. For example, take blood pressure. There's a known phenomenon known as white coat syndrome. This is when a person has a significantly higher blood pressure (often >10 mmHg) measure when they're taking their blood pressure in a hospital, doctor's office, or similar environment, even though their blood pressure is normally much lower in non-clinical settings. This could likewise be happening to a person in the context of a polygraph test.

    Other factors as simple as wearing tight-fitting clothing, being extremely tired, being extremely alert, being a nervous person in general, being an extremely calm or emotionless person in general, and so on can affect the results of a polygraph test.

    3. This is largely why many if not most states consider polygraph test results are inadmissible as evidence. To my knowledge, some states do allow it, but only if both parties agree to it.

    4. As far as Ford is concerned, didn't she take a polygraph test administered by someone she herself chose? Not to mention under conditions she hasn't made public? If so, that doesn't seem like a fair and objective way to take a polygraph test!

  2. When I was 17 I worked at a retail store and was accused by management of stealing from the til. So I consented to a polygraph. I was innocent, but the question posed by a court official who looked very imposing scared me, was intimidating, so when he asked "Did you steal between $6 and $8?" I was stunned because the amounts were specific, and that alarmed me. So my reaction was heightened nervousness, so the polygraph said I was lying. I vowed that day to always decline a polygraph if asked.

    (And the white coat syndrome is something I also experience from too many hospital tests with needles at a young age. I can't see a DR without reliving those memories, so my BP shoots up no matter what.) O life is so FUN!