Criminal law – especially the procedural part – has built-in an extensive set of checks and balances that aim to keep the process fair. One has to keep in mind that in a vast majority of criminal cases one of the parties is the state itself with all its repressive, political and other power. Two of the most important (and basic!) institutes that ensure a fair(er) trial are the burden of proof that is on the shoulders of the prosecutor (and not the accused/defending party) and the juridical standards of proof. And (at least) the latter have been attacked in the past few years. The aim of this short article is to argue why that is not only unacceptable but also unnecessary despite the alleged current global danger of terrorism.
First it might be wise to step back and review what the standards of proof actually are.
The most known and also highest standard of proof is "beyond reasonable doubt". It ensures that the court in a trial does not convict a person without being completely convinced in his/her guilt – if even a single, yet so small and unlikely, doubt arises to the court it has to acquit the accused. But there are also lower standards of proof for actions that are less intrusive then being condemned in the court – e.g. to arrest the suspect the police needs needs at least a good base for suspecting him of doing the crime (note: not just any crime! the exact one (s)he's being suspected of).
Since the so called "war on terror" there has been some quite notable lowering of these standards – at least, thankfully, more of the lower sort then the higher! This action is logical by the states since it broadens the spectrum of people the repressive organs like the police can suspect, arrest etc. The positive effect is that more actual criminals would be caught this way. But the serious downside is the intrusion in the already acquired human rights of the people (that are not criminals).
But even if we left that aside – I am not trying to say that we should thought! – I argue that the lowering of the standards of proof is unneeded in order to broaden the spectrum of suspects of terrorist crimes. One must keep in mind that definitions as "beyond reasonable doubt" and "based suspicion" are heavily dependand on how the person interpreting/judging it perceives the evidence and situation based on his own experience, knowledge, feelings etc. – and not only on bare rational facts. This is, I think, not a bug, but a feature (as one might say) since it allows adaptations of the standards of proof to the current social conditions already de natura. In a society that is endangered with terrorism (or any other crime for that matter) a person will automatically become suspicious sooner to commit that crime then in another society, because of the different psychological interpretation of the same facts.
Taking this into account one discovers that the harm done by the intimidated states by (legally) lowering the standards of proof is even higher then it seems at first. The harm is actually double: first because of the lower standards needed for starting a repressive act against the "suspect" and even further then because that (already lower) standard is interpreted even lower by the society – and maybe more importaintly the repressive organs of the state.