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>You have a right to not proclaim your guilt, but you exercise that right by not speaking. Your point is well received, and I am going to be a little pedantic

>You have a right to not proclaim your guilt, but you exercise that right by not speaking. Your point is well received, and I am going to be a little pedantic only because I find the topic so interesting to flush out... Defendants have an absolute right to plead "Not Guilty" in a court of law to charges against them (e.g. they can't remain silent as to how they plead to the charges). So let me just acknowledge I am being pedantic, because you are referencing testifying which is separate from a defendant's plea which I am referencing. But it is still an open expression of Not Guilty in the Court, but it just doesn't waive ones right to not testify or otherwise open up a defendant for cross-examination. Further, it goes without saying we don't tack on additional charges of perjury/obstruction of justice when a defendant pleads Not Guilty to a crime for which they are later found guilty. Separately, a Defendant charged with a crime can 100% maintain their right not to testify(right against self-incrimination) with investigators and in the courts...all while simultaneously defending themselves in public without giving up those rights (though those statements could be used in the case). I think Stewart's speech was somewhat limited more than a typical shareholder/officer/director of a company facing a criminal charge. Normally being in such a corporate capacity still wouldn't trigger securities fraud for public deceleration of innocence against criminal charges. I just think in her case, as someone else mentioned, Stewart the individual is essentially the brand/value of the company. For example, Stewart likely was shareholder/board member in a number of corporations at that time but her public comments only triggered securities charges as to the one corporation synonymous with Martha Stewart when her statements of innocence really were entirely unrelated to the company (it's not like she said don't sell stock in the Martha Stewart company because I am innocent). You said it best, "this just isn't so clear".

mindslight 10y ago
It's pretty clear to me. Legality isn't equivalent to morality, and that principle stands whether discussing something direct like drug persecution or emergent like this particular contradiction. If such a case were decided in a way that constrained the government, the government would simply try again later with a slightly modified argument. Eventually, they would get a judge that wrote them a justification. Given the government's propensity to gradually erode rights in this manner, the Bill of Rights is best thought of as a bunch of unit tests to help determine whether the government is still legitimate. I personally think it jumped the shark a while ago, but it's your job to come to your own decision. Unfortunately, precedent-based law purports that its precedents carry the status of universal truths, rather than just the somewhat arbitrary decisions they were. So after the current contradictory system has fallen apart, many of the justifications that broke it will soon find themselves adopted by its fresh replacement.
- will_brown 10y ago
  >Unfortunately, precedent-based law purports that its precedents carry the status of universal truths, rather than just the somewhat arbitrary decisions they were. No doubt it is far from perfect in practice, but which one(s) is(are) and why? For example, I don't know if Common Law is any better or worse in practice (not even sure how that would really be measured) than the Civil Law system, but I always thought it is a little overly ambitious to think we could codify a rule to be applied to every possible factual situation before they occur in a statute, whereas the Common Law system assumes that we can't do that, so it acknowledges there will be cases of first impression (sets of facts we haven't applied to the law before) which will create new law (precedent) to be applied to future cases with similar facts. I do know Louisiana is the only State to have a hybrid of Common/Civil Law (due to French influence), honestly I don't know a thing about it in practice, but no other State has been convinced to adopt it and they haven't been convinced to drop it either. >So after the current contradictory system has fallen apart Our Common Law system is based on the old English Common Law system, so it goes back to the Norman Viking Conquests (~1100). Since the start, we have obviously developed an extensive body of case law and for the most part we rarely cite the old English Common Law cases any more, but it is still a 1,000 year old legal system. It is another very interesting question, can a legal system even change from Civil Law to something else without a full change in Government? For example, could Louisiana even drop its Common Law/Civil Law hybrid and join the 49 other States, or could another State drop their Common Law system for Louisiana's hybrid, and if so what does that transition look like? Just reading your sentence, I have to say it sounds ominous, as in system fall apart doesn't mean Common Law legal system but the entire rule of law (US Government, Bill of Rights, etc...), admittedly I am reading into what you meant and maybe it would be no difficult task to just move away from Common Law and maintain continuity of everything else.

mindslight 10y ago

It's pretty clear to me. Legality isn't equivalent to morality, and that principle stands whether discussing something direct like drug persecution or emergent like this particular contradiction. If such a case were decided in a way that constrained the government, the government would simply try again later with a slightly modified argument. Eventually, they would get a judge that wrote them a justification. Given the government's propensity to gradually erode rights in this manner, the Bill of Rights is best thought of as a bunch of unit tests to help determine whether the government is still legitimate. I personally think it jumped the shark a while ago, but it's your job to come to your own decision. Unfortunately, precedent-based law purports that its precedents carry the status of universal truths, rather than just the somewhat arbitrary decisions they were. So after the current contradictory system has fallen apart, many of the justifications that broke it will soon find themselves adopted by its fresh replacement.

will_brown 10y ago
>Unfortunately, precedent-based law purports that its precedents carry the status of universal truths, rather than just the somewhat arbitrary decisions they were. No doubt it is far from perfect in practice, but which one(s) is(are) and why? For example, I don't know if Common Law is any better or worse in practice (not even sure how that would really be measured) than the Civil Law system, but I always thought it is a little overly ambitious to think we could codify a rule to be applied to every possible factual situation before they occur in a statute, whereas the Common Law system assumes that we can't do that, so it acknowledges there will be cases of first impression (sets of facts we haven't applied to the law before) which will create new law (precedent) to be applied to future cases with similar facts. I do know Louisiana is the only State to have a hybrid of Common/Civil Law (due to French influence), honestly I don't know a thing about it in practice, but no other State has been convinced to adopt it and they haven't been convinced to drop it either. >So after the current contradictory system has fallen apart Our Common Law system is based on the old English Common Law system, so it goes back to the Norman Viking Conquests (~1100). Since the start, we have obviously developed an extensive body of case law and for the most part we rarely cite the old English Common Law cases any more, but it is still a 1,000 year old legal system. It is another very interesting question, can a legal system even change from Civil Law to something else without a full change in Government? For example, could Louisiana even drop its Common Law/Civil Law hybrid and join the 49 other States, or could another State drop their Common Law system for Louisiana's hybrid, and if so what does that transition look like? Just reading your sentence, I have to say it sounds ominous, as in system fall apart doesn't mean Common Law legal system but the entire rule of law (US Government, Bill of Rights, etc...), admittedly I am reading into what you meant and maybe it would be no difficult task to just move away from Common Law and maintain continuity of everything else.