Free Impossible: The Case Against Lee Harvey Oswald by Barry Krusch Page A

history by no means confined to the United States.
    Maimonides, writing in the 12th century, codified 613 commandments in the Jewish Bible, and wrote the following about Commandment 290 (emphasis supplied): 1

The 290th commandment is the prohibition to carry out punishment on a high probability, even close to certainty . . . . Do not think this law unjust. The Almighty shut this door and commanded that no punishment be carried out except where there are witnesses who testify that the matter is established in certainty beyond any doubt . . . it is better and more desirable to free a thousand sinners, than ever to kill one innocent.

    Nor was this view by any means confined to Judaism. It is part of what might be considered “natural law.”
    According to Professor Sandy Zabell, Professor of Statistics at the University of Chicago, the earliest reference in non-religious legal literature was authored by Justinian: 2

The Divine Trajan stated in a Rescript to Assiduus (sic) Severus: “It is better to permit the crime of a guilty person to go unpunished than to condemn one who is innocent.”

    But, though the concept was an ancient one, America did provide a vehicle for formal recognition of this value in the Constitution of the United States of America, specifically, the Fifth and Fourteenth Amendments, which provide (respectively) in pertinent part as follows:

No person shall be . . . deprived of life, liberty, or property, without due process of law . . . 3
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . 4

    According to these Amendments, due process is the framework within which the mechanisms of criminal law operate. But what processes are “due?” There is an entire suite of these, and it is in the definition of these processes that we find the stipulation of the means by which the innocent shall be protected , and that means is through the creation of a high standard of proof .
    Here is the standard:

    In criminal law, innocence is presumed until guilt has been proven to the factfinder — a jury — beyond a reasonable doubt .

    Note that the standard specifically refers to being found guilty of a crime. In other areas of criminal law, and also throughout civil law (lawsuits between two parties involving negligence, defamation of character, etc.), there are other, lower, standards of proof. Two of these standards are “preponderance of the evidence” and “clear and convincing evidence,” as noted by Dorothy Kagehiro (Kagehiro, 1990, pp. 194-5; paragraph on separate pages combined by author):

    But these lower standards are also applied not only in civil law, but also in a different area of criminal law, pretrial detentions, as reported in 2010 in The Georgetown Law Journal Annual Review Of Criminal Procedure (footnotes omitted; emphasis supplied): 5

The Bail Reform Act allows courts to detain an arrestee pending trial if the government demonstrates by clear and convincing evidence after an adversarial hearing that no release conditions will reasonably ensure the safety of the community. In United States V. Salerno , the Supreme Court held that pretrial detention of a defendant based solely on the risk of danger to the community does not violate due process. Nor does pretrial detention on the ground of dangerousness constitute “excessive bail” under the Eighth Amendment; the prohibition against excessive bail applies only to cases where it is appropriate to grant bail.
A judicial officer may also detain a defendant if the government proves by a preponderance of the evidence that the defendant poses a risk of flight such that no condition or combination of conditions will reasonably assure the defendant’s presence at trial. In assessing risk of flight, courts consider a variety of factors, including the defendant’s ties to the