Re: RFID Skimming

1

The real crime is pronouncing "literally" without the second syllable.


Posted by: Mister Smearcase | Link to this comment | 12- 7-10 3:42 PM
horizontal rule
2

swiping their butt.

Actually, I'm rather attached to my butt.


Posted by: JP Stormcrow | Link to this comment | 12- 7-10 3:47 PM
horizontal rule
3

Yawn.

It's much cheaper and easier to get credit card numbers from working a restaurant point-of-sale system or finding a hackable online retailer, or buying them from someone who has already done this. That gets you numbers in bulk with no personal exposure.

I'd say this is pretty much a reminder that numbers you have to give to people are not good at doubling as authentication (see also: social security numbers).
You can have smarter/somewhat more secure RFID systems, but they cost more to manufacture and deploy, and it's far from being the low-hanging fruit of credit card theft.


Posted by: Nathan Williams | Link to this comment | 12- 7-10 3:49 PM
horizontal rule
4

You should consider trading yours in. It's got a big crack down the middle.


Posted by: heebie-geebie | Link to this comment | 12- 7-10 3:49 PM
horizontal rule
5

4: And that's not the worst of it!


Posted by: JP Stormcrow | Link to this comment | 12- 7-10 3:59 PM
horizontal rule
6

5: Don't tell me you've been using those credit-card cheeks they sent you.


Posted by: Stanley | Link to this comment | 12- 7-10 4:03 PM
horizontal rule
7

My sister convinced me to get a ray-blocking wallet a few years ago. The downside is that I have to take my metro card out of it to swipe, but at least I'm safe from all the nefarious buttswipers wandering around.


Posted by: E. Messily | Link to this comment | 12- 7-10 4:23 PM
horizontal rule
8

Is that what Will claims he's been doing?


Posted by: asilon | Link to this comment | 12- 7-10 4:31 PM
horizontal rule
9

Cardipygians beware!


Posted by: Turgid Jacobian | Link to this comment | 12- 7-10 4:35 PM
horizontal rule
10

Obviously we all need to get lower-back tattoos that read SWIPER, NO SWIPING! and that should solve the problem.


Posted by: Thorn | Link to this comment | 12- 7-10 4:43 PM
horizontal rule
11

10: Such ink could be issued by the Fraud Reduction Agency of Modern Protection. Naturally, it will be known as FRAMP Stamp.


Posted by: Stanley | Link to this comment | 12- 7-10 4:49 PM
horizontal rule
12

Theft Reduction And Monetary Protection agency.


Posted by: Turgid Jacobian | Link to this comment | 12- 7-10 4:56 PM
horizontal rule
13

Theft Reduction Ass Marking Provider


Posted by: Turgid Jacobian | Link to this comment | 12- 7-10 5:02 PM
horizontal rule
14

10: Someone is spending a lot of time with a 3-year old!


Posted by: peep | Link to this comment | 12- 7-10 5:22 PM
horizontal rule
15

I thought for sure you were referring to this definition of "credit carding":
http://www.urbandictionary.com/define.php?term=credit+carding

I have a friend who does this (a bit less aggressively than the definition would imply) whenever you bend over in front of her. She's also drunk a lot.


Posted by: wrenae | Link to this comment | 12- 7-10 5:53 PM
horizontal rule
16

15: To strangers?


Posted by: Moby Hick | Link to this comment | 12- 7-10 6:20 PM
horizontal rule
17

I just got a new credit card that has no embossed letters or numbers. Is it RFIDing stuff? I almost threw it away thinking it was a fake card from a solicitation. It looks really different.


Posted by: Moby Hick | Link to this comment | 12- 7-10 7:48 PM
horizontal rule
18

17: I'll check for you. What's your date of birth, Social Security number, mother's maiden name, and the name of your high school mascot?


Posted by: Stanley | Link to this comment | 12- 7-10 8:26 PM
horizontal rule
19

16: No, mostly friends. And coworkers. I was her manager at the time. But complete strangers? No. That would be weird.


Posted by: wrenae | Link to this comment | 12- 8-10 7:55 AM
horizontal rule
20

OT:

So, the rape charges against Julian Assange. I don't really need to have an opinion about these, but it's annoying me that after having read a fair amount of coverage of them, I can't quite get a clear grasp of what, assuming the truth of all allegations made against him, he's alleged to have done, exactly. Sex without a condom, and without consent for condomless sex from the other participant, but what does that mean in terms of a narrative of events -- the linked page says 'murky' rather than giving the details of the dueling stories. And there's some allegation I saw on a BBC page linked from CT that he held one of the women down against her will, but it's not in any of the narratives I've seen -- where does that fit in?


Posted by: LizardBreath | Link to this comment | 12- 8-10 10:15 AM
horizontal rule
21

20: I've been trying to follow them as well. Very confusing and the "correct" narrative has evolved (which is not to say that later ones are necessarily compromised or wrong). And it is such a minefield that that is probably all I'll say about that.

Because I'm a feminist coward.


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 11:33 AM
horizontal rule
22

They sound like utter bullshit to me, but what do I know?


Posted by: apostropher | Link to this comment | 12- 8-10 11:41 AM
horizontal rule
23

The prosecution, rather than the allegations themselves, sounds politically motivated to me -- whatever the truth or falsity of the allegations themselves, they don't sound like you'd have high enough odds of a conviction that most prosecutors would bother with them without more going on. Trying to think about the allegations themselves is annoying me because of the no-narrative issue: there's nothing particularly incredible about Assange having raped someone, but it's kind of driving me nuts that I can't tell if the actual allegations are of something that seems unequivocally criminal to me, or of something less clear.


Posted by: LizardBreath | Link to this comment | 12- 8-10 11:55 AM
horizontal rule
24

such a minefield

Indeed. I'm trying to express my confusion about and irritation with the whole story without expressing disbelief in what the accusers have said; what's annoying me is that I don't know what they've said. But it's hard not to sound as if you're falling into calling rape allegations generally presumptive bullshit.


Posted by: LizardBreath | Link to this comment | 12- 8-10 11:57 AM
horizontal rule
25

The one eyebrow-raising thing I heard (and this was from one of Assange's lawyers, so, you know, grain of salt or whatever) is that the investigation was dropped as a non-starter by one prosecutor and then picked back up by another. But! Who knows?


Posted by: Stanley | Link to this comment | 12- 8-10 12:01 PM
horizontal rule
26

It is confusing, but it sounds like it's going to stay that way outside the courtroom:

So, what exactly is Assange accused of doing? Sweden prohibits prosecutors from releasing any details about sexual assault allegations, so it's impossible to know for sure.


Posted by: Nathan Williams | Link to this comment | 12- 8-10 12:04 PM
horizontal rule
27

It seems also that he's just wanted for interrogation by the prosecutor, and hasn't been formally charged. And that there's purportedly "new evidence" (but what could this be? It's got to be too late for any physical evidence) supporting the new prosecution. The whole thing really does, based on the current reports, look almost ludicrously weak.


Posted by: Robert Halford | Link to this comment | 12- 8-10 12:09 PM
horizontal rule
28

I think the best thing all around is for the public conversation not to be about Assange the person. Ideally Wikileaks can function without him, and other orgainzations doing the same or similar work will be formed. This needs to be a movement, not a cult of personality. Along with that there needs to be a reasonable discussion of what limits whisleblowing organizations should observe.

The "movement" part of this is certainly going to happen. The "rational conversation" part is more doubtful.


Posted by: rob helpy-chalk | Link to this comment | 12- 8-10 12:09 PM
horizontal rule
29

25: Yeah, I was thinking that there was news that he was accused weeks ago, followed by reports that the charges had been dropped. So the story is that they were dropped, and then reinstated?


Posted by: essear | Link to this comment | 12- 8-10 12:13 PM
horizontal rule
30

Seeing a headline saying he's not being charged with rape, but "sex by surprise", made me assume it would be pointless to expect any sort of coherency. It seems like too much of a circus to be able to take seriously. If the charge was rape, you'd call it rape, right?


Posted by: persistently visible | Link to this comment | 12- 8-10 12:16 PM
horizontal rule
31

30: That, I think, is bad-media confusion. My understanding is that at least one of the charges is rape, and that 'sex by surprise' is horrible Swedish slang rather than a legal term.


Posted by: LizardBreath | Link to this comment | 12- 8-10 12:20 PM
horizontal rule
32

You know, Sweden is a civilized country and not a US vassal state. It is entirely possible that in due time prosecutors will present the evidence and a plausible narrative before an impartial jury. We don't have to form an opinion about this now. Or ever, really.


Posted by: rob helpy-chalk | Link to this comment | 12- 8-10 12:36 PM
horizontal rule
33

31: This BBC report is about the clearest I have found so far. Describes the 3 "categories" of rape under Swedish law.


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 12:37 PM
horizontal rule
34

32: Curiosity about the charges doesn't imply any belief that Sweden should be subservient to the US. You're right that none of us have to have an opinion about this, of course -- really, no one ever has to have an opinion about anything.


Posted by: LizardBreath | Link to this comment | 12- 8-10 12:40 PM
horizontal rule
35

32: Correct. But I find I want to push back against things like Matt Lauer announcing that "the international manhunt for Julian Assange is over." Many layers to the onion on this one.


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 12:40 PM
horizontal rule
36

I'd initailly just assumed that this was a honeytrap operation, but reading some of the articles it seems quite implausible to me that one of the accusers (Miss A in that BBC article) is a CIA plant willing to make a false accusation. Of course the other accuser could be a spy, but it's a harder operation to pull off if you only have one plant rather than two.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 12- 8-10 12:47 PM
horizontal rule
37

We don't have to form an opinion about this now. Or ever, really.

But this is the internet! Where is your spirit of uninformed speculation?

33- Seems fairly clear on its own, but clearly "Unlawful coercion" would be the sensible term to use, rather than that terrible Swedish slang the media's picked up instead.


Posted by: persistently visible | Link to this comment | 12- 8-10 12:48 PM
horizontal rule
38

but it's a harder operation to pull off if you only have one plant rather than two.

Maybe, but you'd need less power for the grow light.



Posted by: Moby Hick | Link to this comment | 12- 8-10 12:51 PM
horizontal rule
39

Can you distinguish between unlawful coercion and rape for my limited, non-legal, brain, please?

I suppose it's possible that Sweden has degrees of rape in the way that America has degrees of murder, but nobody here knows, so either we shouldn't form an opinion or we should perform some arcane ritual to conjure up Weman to tell us.


Posted by: chris y | Link to this comment | 12- 8-10 12:55 PM
horizontal rule
40

At certain periods on Unfogged, I'm pretty sure this one would have been a rip-roaring 1000-commenter.

36: I have seen nothing credible that there was any real possibility of entrapment or CIA plantishness upfront*. That is part of what makes this situation so fraught.

*I know, I know, that's what they *want* me to believe.


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 12:55 PM
horizontal rule
41

36: I don't have an opinion in the absence of a clearer sense of the allegations. If I did have a clearer sense of the allegations, and if they were puzzlingly minor (that is, if I were left thinking that Swedish sexual assault law criminalized behavior that I wouldn't have called criminal), I'd be speculating that the accusers were telling the truth, but that they went to the police (as some of the stories suggest) looking to pressure him into getting STD tests rather than believing that he should be prosecuted, and that a politicized prosecutorial apparatus looked at the allegations and decided that if you looked at them right, you could construe them as sexual assault under Swedish law, and prosecuted on that basis. Or maybe not a politicized prosecutorial apparatus, but a particular decisionmaker with strongly anti-Assange views.

OTOH, if the actual allegations were clearly something I would regard as criminal, then I don't really have speculations. A honeytrap seems implausible, both because of the two accusers and it just seems unlikely. So I'd be falling back on my general 'no reason to prejudge a criminal case in the absence of all the evidence, but no reason to see the allegations as implausible.'


Posted by: LizardBreath | Link to this comment | 12- 8-10 1:02 PM
horizontal rule
42

39.1: Well, there's this from the BBC report linked above:

And below that there is the idea of 'unlawful coercion'. Talking generally, and not about the Assange case, this might involve putting emotional pressure on someone.

That's literally all I know about the Swedish law in this area, but it sounds as if there might be room for an unsettling amount of prosecutorial discretion.


Posted by: LizardBreath | Link to this comment | 12- 8-10 1:05 PM
horizontal rule
43

41.1 is the assumption I've been working under based on what I've read.


Posted by: apostropher | Link to this comment | 12- 8-10 1:05 PM
horizontal rule
44

but reading some of the articles it seems quite implausible to me that one of the accusers (Miss A in that BBC article) is a CIA plant willing to make a false accusation

The article that that charge is based on rests on a six degrees of separation type logic - she has written a couple articles for a magazine, the magazine is run by a foundation, that foundation has been involved in joint events with another foundation, which in turn has ties to CIA agents. Furthermore, it is written by a guy who thinks that the Church pedophilia scandal is part of a plot by the Elders of Zion as part of their eternal war on the Church and their current plans for a Judaic planet. In any case, if you didn't instantly run screaming to the police, you can't credibly claim rape (he'll allow 24hrs for 'extreme' cases). Or in other words, put the same trust in this as you would in a Pam Geller article on Assange's ties to Iran.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 1:11 PM
horizontal rule
45

41: Linsday Beyerstein argues that even if the accusers just wen to the police to get an Assange to take an STD test, Assange still could be a rapist. She draws an analogy to someone who is looking to get their money back from their stock broker whom the think is incompetent, goes to the police, and finds out that they have actually been the victim of a full blown Ponzi scheme. They might realize a far worse wrong has been done to them, and want more action than they did originally.


Posted by: rob helpy-chalk | Link to this comment | 12- 8-10 1:15 PM
horizontal rule
46

but it sounds as if there might be room for an unsettling amount of prosecutorial discretion.

Without wanting to seem unduly cynical, if it's not a bit more defined than that it sounds like a pension plan for criminal lawyers.


Posted by: chris y | Link to this comment | 12- 8-10 1:16 PM
horizontal rule
47

43: I'd been leaning that way, but the new charges in the extradition hearing that he "Used his body weight to hold down Miss A in a sexual manner," sound incompatible with that reading unless the charge is phrased really equivocally.


Posted by: LizardBreath | Link to this comment | 12- 8-10 1:19 PM
horizontal rule
48

45: Sure. What would sway my opinion along the lines of 41.1 is if I had a clear understanding of the factual allegations, and believed myself that the facts alleged did or did not constitute criminal behavior. Whether the women involved thought he'd committed criminal behavior at the time they went to the police on the basis of their first-hand knowledge of the facts isn't controlling: you're right that people often underrate the severity of crimes committed against them.


Posted by: LizardBreath | Link to this comment | 12- 8-10 1:24 PM
horizontal rule
49

I've seen two versions of the Miss A complaint. One says that she claims that she had made sex conditional on condom use and then the next morning he didn't use one and she said nothing but was very upset by it afterwards The question there would be if she only became aware of the lack of a condom after the fact or knew beforehand but didn't say anything. The other account says that she became aware that he wasn't wearing a condom and told him to stop, but he refused and kept on fucking. IMO version 1B is assholish, but shouldn't be a crime, 2 is plain old rape, and 1A should be a crime, but one of lesser degree than 2.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 1:30 PM
horizontal rule
50

1B or not 1B. That is the question.


Posted by: Moby Hick | Link to this comment | 12- 8-10 1:32 PM
horizontal rule
51

Also, the 'using his body' doesn't seem relevant to me except if there was an explicit withdrawal of consent. Otherwise, we seem to be suggesting that missionary or cowgirl are potentially criminal acts.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 1:32 PM
horizontal rule
52

51: Well, that's what I meant by "really equivocally" -- it's a weird way of saying "raped her by using his body weight to prevent her from resisting him from having sex with her without her consent". But if it doesn't mean that, I don't know what it means that is criminal.

Your 49, I've lost track of what's 1A and 1B. But continuing to have sex with someone after they've withdrawn consent should absolutely be treated as rape -- if that's the allegation, that's rape. Sex with someone without a condom when they have said in the past that they will only have sex with you with a condom? People change their minds: I think that's rape if she was non-consenting at the time of the unprotected sex, but not criminal at all if she was consenting at that time, whether or not she was upset later. Again, without knowing what the allegations are, it's hard to have an opinion.


Posted by: LizardBreath | Link to this comment | 12- 8-10 1:42 PM
horizontal rule
53

49 -- Having alternate versions floating around would make this more difficult to prosecute here. Assuming that the complainant is the ultimate source of both, but that they have slightly different channels from her to us.

I predict that this gets resolved in a plea deal: a fine, no jail time.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 1:45 PM
horizontal rule
54

53.2 Prediction withdrawn.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 1:49 PM
horizontal rule
55

Did a new fact come in, or what happened in the four minutes between 53 and 54?


Posted by: LizardBreath | Link to this comment | 12- 8-10 1:50 PM
horizontal rule
56

There's also a question of proof. Assuming that the allegation is straightforward rape, if there's no actual evidence for that beyond a one person's sworn statement, that clearly shouldn't be 'beyond a reasonable doubt'.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 1:56 PM
horizontal rule
57

Assuming that the allegation is straightforward rape, if there's no actual evidence for that beyond a one person's sworn statement, that clearly shouldn't be 'beyond a reasonable doubt'.

Bullshit. There are plenty of situations where a crime can be proven by one person's word against another -- think of any mugging where the victim is the only witness. If a jury believes her story and disbelieves his, that's all the necessary proof.


Posted by: LizardBreath | Link to this comment | 12- 8-10 1:58 PM
horizontal rule
58

55 -- Two minutes of reflection.

56 -- Whoa, there. Want to take a couple minutes to reflect?


Posted by: CharleyCarp | Link to this comment | 12- 8-10 2:00 PM
horizontal rule
59

Seriously, think about that. That'd mean that you could never get a rape conviction under circumstances where consent was a real possibility, unless there were physical injuries; what kind of evidence would a woman ever have that she hadn't consented to sex other than her testimony?


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:00 PM
horizontal rule
60

59 to 56. (and your being confused on this point doesn't make you a bad person, you just don't seem to have thought clearly about it.)


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:01 PM
horizontal rule
61

Really? You can get a conviction even if there isn't any actual evidence a mugging took place - no stolen property, no signs of violence, no witnesses, nada? If so, then it shouldn't be. I really dislike the idea that someone can be sentenced to jail on nothing more than one persons statement.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 2:02 PM
horizontal rule
62

Seriously, think about that. That'd mean that you could never get a rape conviction under circumstances where consent was a real possibility, unless there were physical injuries; what kind of evidence would a woman ever have that she hadn't consented to sex other than her testimony?

This is why I hope to never have to serve on a jury for that kind of trial because I am pretty sure I would find for the defendant even if I thought they probably did commit the rape. I just don't see how to get past the presumption of innocence at that point.


Posted by: CJB | Link to this comment | 12- 8-10 2:03 PM
horizontal rule
63

62: although LB and Charley are of course exactly right about the law, this is (one reason) why cases are often not prosecuted if there is literally no evidence other than he-said/she-said.


Posted by: urple | Link to this comment | 12- 8-10 2:06 PM
horizontal rule
64

59 Actually I have thought about that. And what I have concluded is that the criminal justice system isn't particularly well suited to dealing with acquaintance rape. Perhaps it's just because I have no trust in my ability to conclusively determine whether someone is lying.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 2:07 PM
horizontal rule
65

And what I have concluded is that the criminal justice system isn't particularly well suited to dealing with acquaintance rape.

This makes perfect sense read in light of 61--i.e., if you thought that it wasn't possible to get a conviction in the absence of non-testimonial evidence, then the criminal justice system wouldn't be particularly well suited to dealing with acquaintance rape.

And, in fact, in light of 62/63, as a practical matter it can be very difficult to obtain a conviction in the absence of non-testimonial evidence, so I suppose it's fair to say that in fact the criminal justice system isn't actually particularly well suited to dealing with acquaintance rape.

Read in light of 56, though, with the "shouldn't" in there, this looks like a less sympathetic statement--it looks as if you think the fact that the criminal justice system isn't actually particularly well suited to dealing with acquaintance rape is a good thing. How exactly do you think acquaintance rape should be dealt with, if not through the criminal justice system?


Posted by: urple | Link to this comment | 12- 8-10 2:18 PM
horizontal rule
66

52
Your 49, I've lost track of what's 1A and 1B

It looks to me like 1A is "she had made sex conditional on condom use and then the next morning he didn't use one and she said nothing but was very upset by it afterwards [and] she... knew beforehand but didn't say anything", and 1B is "she had made sex conditional on condom use and then the next morning he didn't use one and... she only became aware of the lack of a condom after the fact".

I'd agree with teraz about these - 2 is rape, 1B is assholish but probably, generally, not actually a crime, and 1A is a crime but not as bad as 2. A lesser degree of rape, if such a thing exists? Mere assault, odd as that might sound?

I'd agree with teraz about this ranking, although to be clear, probably not about the rest of what he's saying here.


Posted by: Cyrus | Link to this comment | 12- 8-10 2:19 PM
horizontal rule
67

The first paragraph of 65 should refer only to the first full sentence of 61. The last half of 61 is like 56, and falls into the third paragraph of 65.

(Sorry if that was confusing.)


Posted by: urple | Link to this comment | 12- 8-10 2:21 PM
horizontal rule
68

Or a mugging where the guy just gets cash from your wallet. Or a carjacking where they abandon the car a few blocks away. Or a theft of your gold watch where the defendant says you gave it to him. Or fraud, as when a fast talking salesman gets you to buy something with fake information.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 2:24 PM
horizontal rule
69

62 -- The judge would instruct you on reasonable doubt; it's not 'beyond all conceivable doubt.'


Posted by: CharleyCarp | Link to this comment | 12- 8-10 2:30 PM
horizontal rule
70

Read in light of 56, though, with the "shouldn't" in there, this looks like a less sympathetic statement--it looks as if you think the fact that the criminal justice system isn't actually particularly well suited to dealing with acquaintance rape is a good thing.

The shouldn't comes from my belief that nobody should be convicted of a crime when the only evidence that the crime took place is one person's uncorroborated statement. I assumed that it was generally true, and have even used the mugging scenario as an analogy in discussions with those who argued that this shouldn't be the case in acquaintance rape scenarios. The idea that it can goes against a gut level sense of justice. Not every serious problem of people acting horribly and harming others is amenable to be solved by the criminal justice system.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 2:30 PM
horizontal rule
71

Really? You can get a conviction even if there isn't any actual evidence a mugging took place - no stolen property, no signs of violence, no witnesses, nada? If so, then it shouldn't be. I really dislike the idea that someone can be sentenced to jail on nothing more than one persons statement.

Whether or not there's stolen property depends on one person's testimony, doesn't it?


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:31 PM
horizontal rule
72

If it's cash yes, if it's a phone, or a watch, or jewelery or a wallet it's different.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 2:35 PM
horizontal rule
73

Because nobody but me has a Swiss Army watch.


Posted by: Moby Hick | Link to this comment | 12- 8-10 2:35 PM
horizontal rule
74

66: 1B is "she had made sex conditional on condom use and then the next morning he didn't use one and... she only became aware of the lack of a condom after the fact".

That's not rape? Less rape-like than not objecting when she was aware he was violating their agreement to use a condom? I can't fathom that. Seems exactly backwards to me. If she doesn't know then she can't object, so the previous agreement is still in force. If she's aware of the lack of condom she can object and her failure to do so might be taken as implied consent. She consented to sex with a condom. No condom, no consent, unless she indicates she's willing to change the conditions. Not objecting isn't the same as agreeing to change the conditions, but it's more like agreeing to change them than being unable to object due to not having the required information.

I think you are getting distracted by "upset afterwards," which applies in both cases or she wouldn't have gone to the police, but is only present in 1B of the examples as given.


Posted by: togolosh | Link to this comment | 12- 8-10 2:36 PM
horizontal rule
75

72: But you don't necessarily recover the stolen property when you apprehend the thief. I can say "I had a Swiss Army Watch and that man took it from me, I remember his face and the distinctive set of tattoos on his neck", but unless they find the watch in his possession, it's just my testimony that anything was stolen.


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:42 PM
horizontal rule
76

74: This sounds right to me, except that I'd be even laxer about this:

Not objecting isn't the same as agreeing to change the conditions, but it's more like agreeing to change them than being unable to object due to not having the required information.

If she's aware that he doesn't have a condom on, and consents to sex, she's agreed to change the conditions. If she doesn't consent to sex, it's rape regardless of the condom status.


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:45 PM
horizontal rule
77

If he hadn't have taken my watch, I could tell you when he took my watch, if my watch had a battery.


Posted by: Moby Hick | Link to this comment | 12- 8-10 2:45 PM
horizontal rule
78

You're just confusing things, Moby. Battery is an entirely different crime.


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:47 PM
horizontal rule
79

I'm not sure I'm actually in favor of teraz's proposed rule, but I'm not sure it's as radical as 68 or 71 would suggest. Does anyone who's worked in the criminal justice system (not me) have a sense for what percentage of convictions are based exclusively on the uncorroborated statement of a single witness? I'd guess the percentage is miniscule.


Posted by: urple | Link to this comment | 12- 8-10 2:48 PM
horizontal rule
80

70: I'm curious about your position here. Are you drawing a distinction between a situation where the only evidence of the identity of the criminal is one person's uncorroborated evidence, and a situation where the only evidence that a crime took place at all is one person's uncorroborated evidence? If you are, why is that?


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:49 PM
horizontal rule
81

66 I'd agree with teraz about these - 2 is rape, 1B is assholish but probably, generally, not actually a crime, and 1A is a crime but not as bad as 2.

You swapped 1B and 1A in this sentence, right?


Posted by: essear | Link to this comment | 12- 8-10 2:49 PM
horizontal rule
82

Does anyone who's worked in the criminal justice system (not me) have a sense for what percentage of convictions are based exclusively on the uncorroborated statement of a single witness? I'd guess the percentage is miniscule.

I'd guess not if we include cops as 'a single witness'.


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:49 PM
horizontal rule
83

Zwei Kabeljaus vere valking down ze Stra├če, und vun of zem vas a battered! Kabeljau.


Posted by: nosflow | Link to this comment | 12- 8-10 2:54 PM
horizontal rule
84

82: really? I'm just guessing, but that would surprise me.


Posted by: urple | Link to this comment | 12- 8-10 2:55 PM
horizontal rule
85

Well, come to think I'm not sure how often cops are on their own rather than with another cop. I was thinking of resisting arrest, under circumstances where a cop was alone with a defendant, as a paradigmatic case.


Posted by: LizardBreath | Link to this comment | 12- 8-10 2:59 PM
horizontal rule
86

And I would guess not if you're including guilty pleas in 'convictions.'

Then, I'm also not sure what you really mean. Suppose it does go to trial, and the victim takes the stand. Testifies yes, he did it, points to the defendant. Explains facts of crime in a calm and steady manner, but apparently sincere. Defense counsel cross-examines, but doesn't get anything really: no contradictions, no admission (either explicit or can be implied through body language) of doubt as to identification, or any of the facts of the crime. 'So it's just your word, isn't that right?' is answered with 'I was there and that's what happened.'

Defendant sits impassively, and doesn't take the stand.

This is what you mean in 79?


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:03 PM
horizontal rule
87

84 -- That would surprise me, too, even when cops are the only witnesses.

And I suspect Teraz wasn't thinking about cops, but about completely uncorroborated accusations from non-police, and my guess is that prosecutions based solely on an accusation made by a non-police officer, with no corroborating evidence whatsoever, are almost nonexistent. (It also seems to me that pretty rare to have no corroborating evidence whatsoever that a crime was committed aside from a single person's contested testimony.).


Posted by: Robert Halford | Link to this comment | 12- 8-10 3:04 PM
horizontal rule
88

Not to speak for his urpleness, but I assume he means that prosecutors are extremely reluctant to take cases where the only evidence is completely uncorroborated testimony from a victim. Note that the bar for "corroborating" evidence is pretty low.


Posted by: Robert Halford | Link to this comment | 12- 8-10 3:07 PM
horizontal rule
89

87.2: Child molestation? Some cases will have physical evidence, but plenty won't. Lots of rape cases will have physical evidence of sex, but not physical evidence that the sex was non-consensual: if someone shows up at a hospital upset and asks for a rape kit to be done, but doesn't have injuries inconsistent with consensual sex, there's nothing but her testimony that any crime took place.

I think you're underrating muggings not leading to injury and without recovery of the stolen property, or with only cash stolen as well.


Posted by: LizardBreath | Link to this comment | 12- 8-10 3:10 PM
horizontal rule
90

87, 88 -- If the testimony is 'contested' then you have another potential source of corroboration: the credibility and demeanor of the defendant. I wouldn't be surprised if there are arrests made on a single person's say so, and, if the crime is serious enough, pleas struck.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:11 PM
horizontal rule
91

89 cont.: Now, I've got no criminal law experience, so I've got no sense at all of how common such situations are as a percentage of all crimes. But none of them sound particularly unusual to me.


Posted by: LizardBreath | Link to this comment | 12- 8-10 3:11 PM
horizontal rule
92

Muggings usually have corroborating evidence in that, if the perpetrator is caught at all, he's caught in the immediate aftermath of the crime and running away, or the like. That's what happened in the case where I was mugged (they also found a weapon on the guy). I'd suspect that the vanishingly rare case where victim goes into the police station, tells the police that "Joe Blank, who lives at 1504 Main Street, mugged me yesterday" and there is no evidence of the mugging other than your word that it took place (i.e., no cash is found on Joe Blank, and Joe Blank's story about what he was doing that day seems reasonably probable) never gets prosecuted.

Child molestation cases are [putting aside how many of them are pure due process nightmares] usually prosecuted on the basis of at least some supporting evidence of access, multiple victims, physical evidence, contemporaneous reports by the victim, etc.

I also doubt that a rape case without any physical or other evidence whatsoever that a rape took place, and a plausible story from the alleged perpetrator about what happened, gets prosecuted ordinarily. Again, these are just guesses.

Obviously, the defendant's demeanor or actions could be a form of corroborating evidence; the "no corroborating evidence" would require a situation in which there's no particular reason to suspect that the purported criminal isn't credible, and the prosecutor really is relying exclusively on the word of the victim. Again, I suspect that such cases are rare and are very rarely prosecuted.


Posted by: Robert Halford | Link to this comment | 12- 8-10 3:22 PM
horizontal rule
93

Are you drawing a distinction between a situation where the only evidence of the identity of the criminal is one person's uncorroborated evidence, and a situation where the only evidence that a crime took place at all is one person's uncorroborated evidence? If you are, why is that?

I think I am. Not sure why, I'd have to think about it and whether it makes sense.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 3:22 PM
horizontal rule
94

Last winter, my son had his snowboard stolen at a resort several hours from here. He was looking for it, while I went down to the office to report the theft (in case the board turned up somewhere). He was near the top of a lift, and saw a guy get off with what appeared to be his board. He approached the guy, and told him he'd better give it back.

The guy unhooked my son's board, and ran to the rack, grabbed another (obviously at random) and took off with it. I went back to the office, and gave them my son's description of the guy, in case someone else missed their board.

An hour or two later, they called and asked my son to come id the guy. He did, and a citation was issued. The sheriff called me, and asked if we wanted to press charges. I told him that it was his jurisdiction, and we were only visitors for the day, but that if he wanted to do it, we'd support him. I thought it would be educational, and my son would be testifying (if it came to that) in the very courtroom where my wife and I were married lo those many years ago. And I thought both the sheriff and the ski area would like to deter this activity.

I have no reason to believe that this sort of thing doesn't happen all the time. Anyway, I'm sure the guy decided not to contest the matter, and paid a fine of some sort. At least, there hasn't been a summons or anything.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:25 PM
horizontal rule
95

I strongly doubt that the only evidence the cops had that this guy had stolen a snowboard was your son's word.


Posted by: Robert Halford | Link to this comment | 12- 8-10 3:27 PM
horizontal rule
96

I've got no sense at all of how common such situations are as a percentage of all crimes. But none of them sound particularly unusual to me.

They don't sound particularly unusual to me, either, and I have no reason to doubt they're a measurable percentage of all crimes, but I'd be willing to bet that, if there's no evidence other than the uncorroborated statement of a single witness, they're an almost nonexistent* percentage of all convictions.

*And honestly, I'd bet that I'd be pretty unhappy about many of those convictions that do exist, if I looked at them closely, since I suspect there would be reason to think they were often based on racism or other similar prejudices.


Posted by: urple | Link to this comment | 12- 8-10 3:28 PM
horizontal rule
97

My local ski area has a poster just inside the bar that's a picture of a bunch of skiers holding a guy while one among their number is throwing a noose over a tree branch. Caption: ski thief, you might get away with it, or you might just face some Western justice.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:30 PM
horizontal rule
98

For example: they found a whole bunch of snowboards in his car, and he couldn't explain where they came from. He had in his possession another snowboard that someone else had reported missing. Two other people reported the guy running around the area with a snowboard. When interrogated, the guy had no other reasonable explanation for what he was doing in the resort area. Etc. etc.


Posted by: Robert Halford | Link to this comment | 12- 8-10 3:30 PM
horizontal rule
99

I'd agree that a one witness, no physical evidence case is often going to be very weak, and probably often won't be prosecuted for that reason. I'm just not sure that 'vanishingly small percentage' is going to be accurate.


Posted by: LizardBreath | Link to this comment | 12- 8-10 3:33 PM
horizontal rule
100

95 -- The guy had a lift ticket, and was not in possession of any stolen property at the time he was brought to the security office. He mostly quietly, but told them he'd borrowed a snowboard to help some friend with something.

But this gets to the first problem with the Urple hypothesis: it's always going to be very rare that there is absolutely nothing else. But as to the theft of the particular board, or any board, only one witness.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:35 PM
horizontal rule
101

Anyway, I'm sure the guy decided not to contest the matter, and paid a fine of some sort. At least, there hasn't been a summons or anything.

Either 95, or the reason you haven't gotten a summons is that there was no other evidence, so they decided not to press charges.


Posted by: urple | Link to this comment | 12- 8-10 3:36 PM
horizontal rule
102

the first problem with the Urple hypothesis: it's always going to be very rare that there is absolutely nothing else

I'm not sure in what sense this is supposed to be a problem with my hypothesis. I don't disagree with it.


Posted by: urple | Link to this comment | 12- 8-10 3:38 PM
horizontal rule
103

Madison County Montana is not Los Angeles.

And the sheriff had an incentive to charge the crime.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:38 PM
horizontal rule
104

101 -- Oh, they collected a fine, you can be sure of that.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:40 PM
horizontal rule
105

Does this also apply to civil law? Can you claim to have had a verbal agreement with someone and get a case heard without any evidence at all other than your say so?


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 3:41 PM
horizontal rule
106

102 -- It's not that big a leap from (a) crimes with only one witness and no corroborating evidence are exceedingly rare to (b) convictions with only one witness and no corroborating evidence are exceedingly rare.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:42 PM
horizontal rule
107

105 -- Unless the statute of frauds applies to the contract, sure you can.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:43 PM
horizontal rule
108

Obviously, the defendant's demeanor or actions could be a form of corroborating evidence; the "no corroborating evidence" would require a situation in which there's no particular reason to suspect that the purported criminal isn't credible, and the prosecutor really is relying exclusively on the word of the victim.

This seems to me to include situations that I'd call 'no corroborating evidence'. If the only positive evidence of the defendant's guilt is one witnesses testimony, how is the fact that the defendant lacks credibility additional evidence? It's a lack of credible contradictory evidence -- it means that defendant's denials are worthless -- but not anything I'd call corroborating positive evidence of guilt.


Posted by: LizardBreath | Link to this comment | 12- 8-10 3:43 PM
horizontal rule
109

105 -- The defendant in 86, after being convicted, might have a malpractice claim against his lawyer claiming that the lawyer didn't tell him how risky the strategy was, or that in that context, the prosecutions offer of a small fine and no time was a pretty good deal. Only the convicted client's word about what was or was not said. He'll need an expert witness on the duty of care, but I presume that's not what you're talking about.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:48 PM
horizontal rule
110

I don't really understand 108. If the victim has one story about what happened, and the defendant denies it and says that something else happened, but the defendant's denial is totally implausible or unbelievable, that suggests (a) that the defendant may be a liar (b) who is trying to cover something up and (c) that there's no reason to accept the defendant's competing version of events over the victim's. Whether you call that "corroborating positive evidence" of guilt or not, it is a lot more to go on than simply a statement of the victim standing on its own without any other support whatsoever.


Posted by: Robert Halford | Link to this comment | 12- 8-10 3:49 PM
horizontal rule
111

108 -- If the jury feels sure that the defendant is lying about his alibi, then they won't use it to form reasonable doubt. If all he had was the alibi, then they may well draw from that the inference that his general denials aren't credible either. That may not be "corroborating" but I think it moves the case from 'no evidence other than the victim's statement.'

Unless it doesn't: I didn't invent the terms here.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:53 PM
horizontal rule
112

Obviously, I should have previewed that.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:54 PM
horizontal rule
113

To go back to the case that sparked this discussion, I'm curious what LB and CC think should happen. Let's say the complaint says that she said no when she realized Assange wasn't using a condom, but he refused to stop. He says she didn't say a thing and knew he wasn't using a condom and there is no other evidence whatsoever for what happened between them. What do you think should determine whether or not Assange gets sent to jail or not?


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 3:58 PM
horizontal rule
114

And really, LB, suppose you have a civil case, and show the defendant the contract he signed, and he says 'that's not my signature.' You show him 5 other documents he's signed, with identical signatures, which he admits, and then have a witness testify to having seen him sign all six times.

It's not just his denial of the signature that's worthless in the view of a rational factfinder.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 3:59 PM
horizontal rule
115

113 -- Which side am I on?

Or if I'm the factfinder, I have to hear them say it. And be cross-examined. And get more context. Why should I doubt her? Because otherwise he goes to jail is not 'reasonable doubt.' Why should I doubt him? Because otherwise I'm not a feminist isn't 'reasonable doubt' either.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 4:04 PM
horizontal rule
116

113 -- If it went to trial (in the USA) the case would hinge on the jury's assessment of the relative credibility of Assange and the victim, after both sides got the chance to tell their story through direct and cross-examination. And both sides would try to introduce corroborating evidence of the circumstances and aftermath of the event to support their position.


Posted by: Robert Halford | Link to this comment | 12- 8-10 4:05 PM
horizontal rule
117

It's fortunate that we had that other thread a while back, else people might begin to think that Halford and I are a single balding 47 year old writing from some basement in the tri-state area.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 4:15 PM
horizontal rule
118

Why do these voices in my head keep telling me I have an idyllic life of living in Montana and litigating important civil liberties cases??? GET OUT OF MY HEAD VOICES.


Posted by: Robert Halford | Link to this comment | 12- 8-10 4:26 PM
horizontal rule
119

Why do these voices in my head keep telling me I have an idyllic life of living in Montana and litigating important civil liberties cases???

You're on their party line?


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 4:28 PM
horizontal rule
120

Halford is a naked 19-year-old woman writing from a penthouse in Miami.


Posted by: apostropher | Link to this comment | 12- 8-10 4:29 PM
horizontal rule
121

In fact, this entire blog is one naked 19-year-old woman in a penthouse in Miami. The basement guy got a job doing lights for Widespread Panic.


Posted by: apostropher | Link to this comment | 12- 8-10 4:32 PM
horizontal rule
122

120: so, Halford, would you like to come see my etchings?


Posted by: Turgid Jacobian | Link to this comment | 12- 8-10 4:36 PM
horizontal rule
123

The basement guy got a job doing lights

Boy howdy!


Posted by: lights | Link to this comment | 12- 8-10 5:19 PM
horizontal rule
124

She's your problem now, basement guy. See ya.


Posted by: Widespread Panic | Link to this comment | 12- 8-10 5:27 PM
horizontal rule
125

Urple, our former foster son Rowan's dad was convicted with Rowan's testimony as the only evidence, though obviously this is the child abuse scenario LB suggested. I think it was a crazy way to structure things and neither the prosecutor nor the victims' advocate had known of such a trial before. But Rowan obviously knew his dad and was testifying about a series of incidents over a certain period of time. I do absolutely believe (for many reasons outside what happened in court, but also based on his testimony) that he was abused by his dad and the conviction was just. But as people here probably remember, I was totally freaked out at the time by the worry that his dad would be acquitted simply because of the weird one-sided story.


Posted by: Thorn | Link to this comment | 12- 8-10 5:30 PM
horizontal rule
126

To clarify, there's a separate trial about other aspects of the abuse and other absuers but also including the dad, and that's one reason a lot of things were off-limits and that put some strange restrictions on the trial too, so there was more evidence but it was being withheld because it implicated other people who couldn't be discussed and so on. The whole thing was weird, but as far as I know the big verdict is pushing the others to settle so that Rowan won't have to testify again, which is the part I care about most as someone who cares for him.


Posted by: Thorn | Link to this comment | 12- 8-10 5:34 PM
horizontal rule
127

116

If it went to trial (in the USA) the case would hinge on the jury's assessment of the relative credibility of Assange and the victim, after both sides got the chance to tell their story through direct and cross-examination. And both sides would try to introduce corroborating evidence of the circumstances and aftermath of the event to support their position.

This could be taken as suggesting Assange would be obligated to testify which he isn't.


Posted by: James B. Shearer | Link to this comment | 12- 8-10 6:20 PM
horizontal rule
128

108, 110: This is probably just a definitional issue. But if your position is that one person's uncorroborated story is by definition insufficient to justify a conviction (as tkm's is), I can't see one witness's uncorroborated story plus an unconvincing denial from a defendant is more evidence against the defendant than the uncorroborated story alone without a denial (beyond the implicit denial in a not guilty plea). If the latter is by definition insufficient, the former doesn't add new evidence to it.

113: Depends who I believe (as a juror). With the stories as you describe them, I'd probably believe she was more likely than not telling the truth, but vote to acquit because I wasn't all the way to no reasonable doubt. But I'd have to hear the stories.


Posted by: LizardBreath | Link to this comment | 12- 8-10 6:23 PM
horizontal rule
129

if your position is that one person's uncorroborated story is by definition insufficient to justify a conviction

It's not. I just suspect such cases are rarely prosecuted, because tey are weak and unlikely to lead to a conviction.

I can't see one witness's uncorroborated story plus an unconvincing denial from a defendant is more evidence against the defendant than the uncorroborated story alone without a denial

Still don't understand. "Without a denial" means a confession, or at least an odd reluctance to take up a defense.


Posted by: Robert Halford | Link to this comment | 12- 8-10 6:29 PM
horizontal rule
130

129.1: Look in the paren -- we've been talking about tkm's position that it's just wrong to convict someone based on one witness's uncorroborated story. If you can't convict based on an uncorroborated story, I don't think that finding the defendant's denial unconvincing counts as corroboration.

Now, I agree with you here -- that there are circumstances where the one witness for the prosecution is very convincing, and the defendant's denials are absolutely unconvincing, where I'd convict on that basis. But regardless of how unconvincing the defendant's denials are, they're not positive evidence for the prosecution: the only positive evidence is the uncorroborated story. Enough for you, and for me, but not for tkm.

129.2: Again, look in the paren, I'm talking about someone who pleaded not guilty and then didn't put on a defense. If you (like tkm) won't convict on the basis of an uncorroborated story, and that's all the prosecution has is one witness, you have to acquit.


Posted by: LizardBreath | Link to this comment | 12- 8-10 6:36 PM
horizontal rule
131

128

... I can't see one witness's uncorroborated story plus an unconvincing denial from a defendant is more evidence against the defendant than the uncorroborated story alone without a denial ...

I don't see this at all. If the defendent takes the stand and testifies that he knew the woman really wanted it although she kept saying no because all women find him irresistable I think that is more evidence.


Posted by: James B. Shearer | Link to this comment | 12- 8-10 6:38 PM
horizontal rule
132

That's not so much an unconvincing denial as a partial admission of guilt, and as such it looks like positive evidence for the prosecution. He's admitting some facts that tend to support his guilt (her protests), which is the positive evidence, even though he's denying that he had the necessary mens rea to commit the crime.


Posted by: LizardBreath | Link to this comment | 12- 8-10 6:42 PM
horizontal rule
133

The judge would instruct you on reasonable doubt; it's not 'beyond all conceivable doubt.

IME, courts are less than receptive to attempts to define reasonable doubt.

Also, 82 is right, at least from my reading of many a drug conviction transcript. And I would disagree that corroboration by a cop's partner is significantly different qualitatively than "only one witness."


Posted by: DK | Link to this comment | 12- 8-10 6:44 PM
horizontal rule
134

ski thief, you might get away with it, or you might just face some Western justice.

Hopefully none of which will come to be known as the "ox-board incident."


Posted by: fake accent | Link to this comment | 12- 8-10 6:45 PM
horizontal rule
135

I'm not sure what TKM's position is, but I'm not sure why a total lack of credibility in the defendant's story cannot be corroboration of the prosecution's case. But maybe there's some definition of "positive" evidence that you have in mind?

I also don't think that TKM was thinking of someone who pleaded not guilty and then didn't put on a defense. He was thinking of a case -- like, perhaps, the Assange case -- where the defendant contests the prosecution's case and has a reasonably plausible and credible story, and the prosecution has the word of the victim and no other evidence whatsoever. And his thought was that such a case shouldn't be prosecuted.


Posted by: Robert Halford | Link to this comment | 12- 8-10 6:48 PM
horizontal rule
136

132

That's not so much an unconvincing denial as a partial admission of guilt, and as such it looks like positive evidence for the prosecution. He's admitting some facts that tend to support his guilt (her protests), which is the positive evidence, even though he's denying that he had the necessary mens rea to commit the crime.

Whatever you want to call it, it is often inadvisable for the defendent to take the stand because their testimony ends up helping the prosecution. I recall jurors saying as much after convictions (that they were going to acquit before the defendent took the stand).


Posted by: James B. Shearer | Link to this comment | 12- 8-10 6:52 PM
horizontal rule
137

RH: I'm not sure what TKM's position is,

Tkm: my belief that nobody should be convicted of a crime when the only evidence that the crime took place is one person's uncorroborated statement.

That's what I've been arguing against. He's not saying that nobody should be convicted of a crime when the defense has "a reasonably plausible and credible story, and the prosecution has the word of the victim and no other evidence whatsoever." He's saying that it's just wrong to convict if there's no evidence for the prosecution other than the victim's story, full stop.

But maybe there's some definition of "positive" evidence that you have in mind?

Huh. I thought that was standard usage. Evidence that the prosecution could put on as part of its case: testimony or physical evidence tending to show the defendant's guilt. Testimony explicitly tending to show the defendant's innocence, like a denial, doesn't directly tend to show the defendant's guilt even if it's really unconvincing.


Posted by: LizardBreath | Link to this comment | 12- 8-10 6:57 PM
horizontal rule
138

135

I also don't think that TKM was thinking of someone who pleaded not guilty and then didn't put on a defense. He was thinking of a case -- like, perhaps, the Assange case -- where the defendant contests the prosecution's case and has a reasonably plausible and credible story, and the prosecution has the word of the victim and no other evidence whatsoever. And his thought was that such a case shouldn't be prosecuted.

No case should be prosecuted if the prosecutor isn't convinced of the defendent's guilt. But if the prosecutor is convinced and thinks they can obtain a conviction (and the crime is sufficiently serious) I don't see why they shouldn't prosecute.


Posted by: James B. Shearer | Link to this comment | 12- 8-10 7:00 PM
horizontal rule
139

136: Absolutely true.


Posted by: LizardBreath | Link to this comment | 12- 8-10 7:00 PM
horizontal rule
140

"Without a denial" means a confession

Not in light of the Fifth Amendment, it doesn't. (I know, I know. In the 18th century the 5th Amendment probably had nothing to do with the right to remain silent... )


Posted by: DK | Link to this comment | 12- 8-10 7:02 PM
horizontal rule
141

I would have a really hard time ever convicting anyone on the basis of one person's testimony. Partly it's that I'm sort of acculturated to worry much more about false positives than about false negatives -- I've seen many, many two-sigma effects appear and then disappear as more data is gathered, so even being 95% confident that something is true is clearly not "beyond a reasonable doubt" for me. And partly it's that I am (or at least, was at one time) familiar with some research on just how bad people are at observing things and how shitty eyewitness testimony can be. The latter, of course, would be much more relevant for something like a mugging than for acquaintance rape where the victim knows perfectly well who they are claiming committed the crime.


Posted by: essear | Link to this comment | 12- 8-10 7:04 PM
horizontal rule
142

You're all so very clever and appealing.


Posted by: Pauly Shore | Link to this comment | 12- 8-10 7:04 PM
horizontal rule
143

And as I said way back in 23, I agree with you that generally, the sort of swearing contest that the Assange case looks like (inconsistent stories, no physical evidence) is weak enough that I wouldn't expect it to be prosecuted. Doesn't mean it didn't happen, but I wouldn't expect to get a conviction, and I'd expect most prosecutors wouldn't bother with it.

I've been arguing against the idea that there's something wrong with prosecuting on the basis of an uncorroborated witness statement as a matter of principle.


Posted by: LizardBreath | Link to this comment | 12- 8-10 7:06 PM
horizontal rule
144

In other news, my mother was diagnosed today with late-stage ovarian cancer, and without treatment is expected to have one to three months to live. With chemo a year or more is not impossible, but she'll be ill. I last saw her in July, when she seemed 100% healthy (and had no reason to think she wasn't 100% healthy). She wants to know if I want her dog when she dies. I really don't.


Posted by: urple | Link to this comment | 12- 8-10 7:23 PM
horizontal rule
145

Ouch. I'm sorry to hear that, urple.


Posted by: apostropher | Link to this comment | 12- 8-10 7:24 PM
horizontal rule
146

I'm so sorry. Is she nearby? Will arranging caretaking be a problem?


Posted by: LizardBreath | Link to this comment | 12- 8-10 7:25 PM
horizontal rule
147

146: about 886 miles.


Posted by: urple | Link to this comment | 12- 8-10 7:28 PM
horizontal rule
148

143

And as I said way back in 23, I agree with you that generally, the sort of swearing contest that the Assange case looks like (inconsistent stories, no physical evidence) is weak enough that I wouldn't expect it to be prosecuted. Doesn't mean it didn't happen, but I wouldn't expect to get a conviction, and I'd expect most prosecutors wouldn't bother with it.

If in fact there are two women with similar stories that would make the case considerably stronger.


Posted by: James B. Shearer | Link to this comment | 12- 8-10 7:32 PM
horizontal rule
149

135 is correct, mostly. That is I think that if the only evidence is the accuser's statement, then if you have some sort of denial that is credible on its own, without taking the the accuser's statement into account, then the case shouldn't go to trial regardless of how credible the accuser's statement is. It's partly a question of reasonable doubt, since I am uneasy with the notion of a reliable ability of judging someone's credibility based on things like demeanor or tone or anything like that, particularly of people in a high stress, high stakes situation. It's also that I find the idea that a person can say 'Joe mugged me' and if Joe claims he was asleep at home, but there is no evidence either way, he goes to jail based on the accusers statement alone to be rather disturbing given my lack of trust in the possibility of determining who is more credible.


On the other hand, the sort of case James cited doesn't qualify. 'She said no, but I knew she really wanted it' is a confession, not a denial.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 7:35 PM
horizontal rule
150

I'm sorry to hear that, urple.


Posted by: essear | Link to this comment | 12- 8-10 7:35 PM
horizontal rule
151

Shit, sorry urple.


Posted by: teraz kurwa my | Link to this comment | 12- 8-10 7:36 PM
horizontal rule
152

Di, as you know, the Fifth Amendment right against self-incrimination does not prevent the state from requiring that a defendant be compelled to either deny the validity of the prosecution's case (i.e., enter a not guilty plea) or enter a no contest or guilty plea, which are effectively either admissions of guilt or refusals to put on a defense. Hence my confusion at LB's hypothetical about a prosecution "without a denial" made as part of a discussion in which everyone has been using less than precise language. But feel free to continue with whatever weird resentment you have going on from some previous thread!


Posted by: Robert Halford | Link to this comment | 12- 8-10 7:37 PM
horizontal rule
153

Posted that last without seeing urple's post. Very, very sorry to hear that urple. What awful news. Hang in there yourself, and I'll keep you and your family in my thoughts.


Posted by: Robert Halford | Link to this comment | 12- 8-10 7:40 PM
horizontal rule
154

No need for the apology; I wasn't actually trying to kill the thread.


Posted by: | Link to this comment | 12- 8-10 7:50 PM
horizontal rule
155

He's not saying that nobody should be convicted of a crime when the defense has "a reasonably plausible and credible story, and the prosecution has the word of the victim and no other evidence whatsoever." He's saying that it's just wrong to convict if there's no evidence for the prosecution other than the victim's story, full stop.

My impression is that tkm is thinking that if you have the latter condition (under which tkm would hold it to be wrong to convict) then you automatically have the former. Because what he means by having no evidence for the prosecution other than the victim's story is that you have a situation where, if we leave out the fact of the accusation, the defendant's story wouldn't be ruled out as implausible/incredible. Equivalently, a situation where defendant's story is implausible or incredible just is a case where you have evidence for the prosecution other than the victim's story.

I don't have a clear opinion about the broader issues.


Posted by: One of Many | Link to this comment | 12- 8-10 8:04 PM
horizontal rule
156

144: Oh, Urple. Give yourself a little time to think about this, of course, but do think about how to try to support her and be with her as much as is feasible, and desirable -- I don't know what your relationship is like.


Posted by: parsimon | Link to this comment | 12- 8-10 8:11 PM
horizontal rule
157

Posted the above without reading the thread properly - sorry to hear that news, urple.

(Also, pwned by 135 and 149.)


Posted by: One of Many | Link to this comment | 12- 8-10 8:12 PM
horizontal rule
158

152

Di, as you know, the Fifth Amendment right against self-incrimination does not prevent the state from requiring that a defendant be compelled to either deny the validity of the prosecution's case (i.e., enter a not guilty plea) or enter a no contest or guilty plea, which are effectively either admissions of guilt or refusals to put on a defense. ...

What does deny the validity of the prosecution's case mean? That the defendent is actually innocent or that the prosecution cannot prove guilt beyond a reasonable doubt?


Posted by: James B. Shearer | Link to this comment | 12- 8-10 8:16 PM
horizontal rule
159

130: if you (like tkm) won't convict on the basis of an uncorroborated story, and that's all the prosecution has is one witness, you have to acquit.

If only one says it
You must acquit.


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 8:16 PM
horizontal rule
160

Urple, so, so sorry. Fuck cancer.


Posted by: Di Kotimy | Link to this comment | 12- 8-10 8:24 PM
horizontal rule
161

Ugh, urple, so sorry.


Posted by: emdash | Link to this comment | 12- 8-10 8:24 PM
horizontal rule
162

This takes us back to the old requirement that a person could not be convicted unless caught in the act [by whom?], or unless the person had confessed, or unless there were at least two witnesses against the person.


Posted by: md 20/400 | Link to this comment | 12- 8-10 8:28 PM
horizontal rule
163

urple, I'm sorry to hear that.


Posted by: md 20/400 | Link to this comment | 12- 8-10 8:29 PM
horizontal rule
164

152: It was a joke! You know, like "Ha ha, remember that other thread?"

Well, the parenthetical was a joke. The part about absence of a denial not being a "confession" was entirely serious as I thought we were discussing evidence presented to a fact-finder. As I had seen no discussion of pleas, the thought that a plea of "not guilty" constituting a "denial" never crossed my mind.


Posted by: Di Kotimy | Link to this comment | 12- 8-10 8:31 PM
horizontal rule
165

No one reads my parentheticals. I said right in 128 "beyond the implicit denial in a not guilty plea", and first Halford and now you didn't see it. I'm sad, and hurt.


Posted by: LizardBreath | Link to this comment | 12- 8-10 8:40 PM
horizontal rule
166

162: No, it doesn't. There are all sorts of other types of evidence.


Posted by: essear | Link to this comment | 12- 8-10 8:49 PM
horizontal rule
167

Circumstantial evidence is often better. (Still have to trust someone's testimony about it.) Anyway, the medieval system had major problems with getting 2 witnesses and getting caught red handed was rare.


Posted by: md 20/400 | Link to this comment | 12- 8-10 8:52 PM
horizontal rule
168

165: I am deeply contrite. I've been too focused on the summary judgment motion I need to finish and didn't read closely. Thought, in fairness, my comment was totally consistent with your parenthetical in that you were explicitly excepting the implicit denial of "not guilty" pleas from the discussion.


Posted by: Di Kotimy | Link to this comment | 12- 8-10 8:57 PM
horizontal rule
169

Further to 168, it's past 10:00 and I am still working. What the fuck?


Posted by: Di Kotimy | Link to this comment | 12- 8-10 8:59 PM
horizontal rule
170

I'm at work too.


Posted by: apostropher | Link to this comment | 12- 8-10 8:59 PM
horizontal rule
171

No one reads my parentheticals.

Parentheticals are easy to ignore.


Posted by: Parenthetical | Link to this comment | 12- 8-10 9:01 PM
horizontal rule
172

Sorry to hear that, urple. My wife just got back from a three week stint of helping to care for her father in Florida. It's a bittersweet time.

On my side of the family, we find ourselves somewhat unsettled (in addition to the normal sadness) by the sudden death of my father's identical twin brother (apparently from heart failure after shoveling snow). They weren't particularly close--my wife and I had seen my uncle more recently than my folks had--and the linkage of genetics with longevity is fairly loose, but they did have pretty similar life trajectories and general states of health. My generally phlegmatic father appears to be the least ruffled, but everyone else is finding it a bit, well, unsettling. (And in my case unexpectedly so; I can't fathom why I hadn't ever thought the scenario through even once despite a lot of other observations and discussions of the nature of their twinness.)


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 9:31 PM
horizontal rule
173

Well, it would be no fun if we actually read the comments before arguing rudely with one another. I'm at a bowling alley drinking a beer!


Posted by: Robert Halford | Link to this comment | 12- 8-10 9:32 PM
horizontal rule
174

171: No they aren't.


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 9:33 PM
horizontal rule
175

173: Is it a league match?


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 9:34 PM
horizontal rule
176

175: Over the line!


Posted by: Stanley | Link to this comment | 12- 8-10 9:40 PM
horizontal rule
177

176: Stanley, my friend, you are entering a world of pain.


Posted by: JP Stormcrow | Link to this comment | 12- 8-10 9:44 PM
horizontal rule
178

174: I couldn't resist the joke. I, myself, tend to read the parentheticals first. But that's because for some reason I can't read a fucking paragraph in order.

Also, urple....really sorry to hear your news.


Posted by: Parenthetical | Link to this comment | 12- 8-10 10:30 PM
horizontal rule
179

I, myself, tend to read the parentheticals first.

And then you excuse my dear Aunt Sally?


Posted by: Stanley | Link to this comment | 12- 8-10 10:36 PM
horizontal rule
180

Sorry to hear that urple.

The notion that jurors can and must judge the credibility of witnesses is really a bedrock principle of our legal system. It's more or less what trials are about. Walk away from that and what have you got?

I'm sure that in every state there's a standard instruction on reasonable doubt. Here's the Ninth Circuit model instruction:

3.5 REASONABLE DOUBT--DEFINED

Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt.

A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.

If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.

Nobody says this is easy, but it is the whole point. The point is not to decide whether acquaintance rape ought to be a crime, or whether people who run activist organizations dedicated to revealing secrets ought not be stopped. Or whatever else you nullifiers think you want jurors to do.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 11:20 PM
horizontal rule
181

Or whether you think the rules of evidence should be changed, or that the burden of proof should be different.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 11:22 PM
horizontal rule
182

127 -- Shearer is right, of course, that the defendant doesn't have to testify. If he wants the jury to weigh his story, though, he's going to have to tell it. Sure his lawyer can suggest the elements of his story in his leading questions of the victim on cross-examination, but if she sticks to her guns, and does it well, they really have nothing upon which to base a reasonable doubt.

Other than inherent disbelief in what anyone says, which ought to get one excused from jury duty.


Posted by: CharleyCarp | Link to this comment | 12- 8-10 11:27 PM
horizontal rule
183

168: Not actually sad and hurt. I just thought it was funny, mostly because Halford had missed the same thing twice, once after I pointed it out. Happens to everyone.


Posted by: LizardBreath | Link to this comment | 12- 9-10 5:04 AM
horizontal rule
184

183: No worries, I'm also not all that deeply contrite. And I appreciated the opening to bitch about how fucking late I was up working on that summary judgment motion. (I was also up really fucking early. It's a good thing I'm having so much fun working this file, or I might really resent it.)


Posted by: DK | Link to this comment | 12- 9-10 5:59 AM
horizontal rule
185

80

I'm curious about your position here. Are you drawing a distinction between a situation where the only evidence of the identity of the criminal is one person's uncorroborated evidence, and a situation where the only evidence that a crime took place at all is one person's uncorroborated evidence? If you are, why is that?

Such a distinction seems reasonable to me. If you are falsely accused of a real crime you have various ways of supporting a denial. You can prove you were somewhere else at the time or you can identify the real criminal. These defenses are not available to someone in Assange's position.


Posted by: James B. Shearer | Link to this comment | 12- 9-10 6:47 AM
horizontal rule
186

182

Other than inherent disbelief in what anyone says, which ought to get one excused from jury duty.

I don't know what this means exactly but I think an unquestioned belief in what anyone says would be a more proper reason for excluding a juror.


Posted by: James B. Shearer | Link to this comment | 12- 9-10 6:50 AM
horizontal rule
187

Oh, urple, I'm sorry to hear this.


Posted by: heebie-geebie | Link to this comment | 12- 9-10 6:51 AM
horizontal rule
188

Sorry, urple. That's a particularly nasty cancer. I hope you're able to manage all you'll need to.


Posted by: Thorn | Link to this comment | 12- 9-10 6:58 AM
horizontal rule
189

182: In the trial where Rowan was the witness, apparently during voir dire everyone who said they'd be unable to convict on nothing but one person's testimony were dismissed. This was brought up a lot by the prosecutor in her closing arguments.


Posted by: Thorn | Link to this comment | 12- 9-10 7:01 AM
horizontal rule
190

186 -- I was referring to some statements above, none of which were yours.


Posted by: CharleyCarp | Link to this comment | 12- 9-10 7:26 AM
horizontal rule
191

For what it's worth. I rang the Swedish ministry of justice and spoke there to an expert on the law of rape. It turns out that the relevant concept is "violation of a person's sexual integrity". This goes all the way from masturbating in front of them to gang rape.

Assange is charged with two counts of "sexual molestation", which is the charge used against flashers; one charge of "unlawful coercion", which implies no sexual contact and is most often used in cases involving the intimidation of witnesses; and one charge of rape, which is in Swedish law defined as unwanted penetration (not necc, with a penis, though one seems to have been employed in this case) which is accompanied either by physical coercion, or a threat to do something illegal if not granted. The degree of coercion can be minimal -- that's where the "Holding her down with his body" bit seems to come in.

My guess is that he jerked off in front of both women, which would account for the charges of "sexual molestation" and fucked one of them without a condom when she didn't want him to. This would account for them both being disturbed by his behaviour.

I am absolutely certain that this isn't politically motivated, and that the dropping and resumption of the charges is quite common under the Swedish system. Several friends in Stockholm have described him as coming on to women in a reckless and unwanted fashion while he was there.

It's quite possible that his behaviour would not be criminal in lots of parts of the world. But it may well be in Sweden.


Posted by: Nworb Werdna | Link to this comment | 12-11-10 3:49 PM
horizontal rule
192

And, Urple, I'm sorry to hear about your mother. I posted the above without reading through the thread.


Posted by: Nworb Werdna | Link to this comment | 12-11-10 3:58 PM
horizontal rule