June 24th, 2019

earl watt mugL&T Publisher Earl Watt


The most known reference to common law probably comes from the idea of a common law marriage, but that is just the tip of the iceberg when it comes to how our society functions under the premise of common law.

The idea is that if a couple has lived together long enough, whether they have had a ceremony or not, the law sees them as a married couple.

But that is just one of many bricks in the wall of our legal system in America, and it stems back to English tradition.

Take, for example, the idea of possession being nine tenths of the law.

The English believed in ownership disputes, the person actually in possession of an item is presumed to own the item unless evidence is presented ot refute that claim.

The feud between the Hatfields and McCoys stemmed from the disagreement about which family owned a pig. Since one family had the pig, and ate it, there was no way to prove the pig did not belong to them, and the court case was dismissed.

That’s not the case in every country. Ownership must be proven despite possession.

But our traditions are very unique and important, and they can’t be overlooked unless we remove the cornerstones of our entire legal system and our concept of justice under the law.

Another key common law practice that exists in the United States but not in Mexico is the idea of habeas corpus. The Latin term refers to the right of anyone who has been arrested to be presented with charges or to be released. No one can be detained without being connected to criminal activity, and those charges must be outlined when a writ of habeas corpus is presented.

In countries like Mexico, a prisoner can sit in jail indefinitely without ever being charged or being told why they were arrested.

We also have the common law concept of a trial by jury.

Our ideas of the common law go beyond the courtroom, mush like the possession and marriage examples. These become societal practices.

Another key English principle is the idea of innocent until proven guilty.

We heard many statement from our own lawmakers during the recent confirmation hearing that this idea only holds true in a court of law, and that a confirmation hearing doesn’t apply such concepts.

That is simply not true.

Let’s take a workplace situation, for example. If a male employee is accused by a female employee of sexual assault, and the male is fired by his boss because of the accusation, and yet there is no evidence to substantiate her claim of assault, the company will certainly lose the case because of presumed innocence.

Presumed innocence is a cornerstone of everything we hold dear.

Go back to the Salem witch trials and see what harm false accusations can do.

More importantly, it might be a good idea to re-read “To Kill a Mockingbird.”

In Harper Lee’s classic, a white lawyer in Alabama defends a black man accused of rape during the Great Depression.

Atticus Finch is the white lawyer, and he presents compelling evidence that shows it was the father of the white woman who beat his daughter, and not the black man being accused of rape.

But in the racists South with an all-white jury, the Black man is convicted, anyway.

This would be the norm if we did not follow the premise of innocent until proven guilty.

This is not a matter of believing women who have been sexually assaulted simply because they say it.

And it is not just a matter for court.

Every day, we all have to practice the idea of innocent until proven guilty, or else we can fall into the trap of punishing those who are not guilty.

These common law principles are also referred to as common sense principles. We don’t just take anyone’s word that accuses another of a crime without evidence.

It doesn’t matter what the accusation may be, whether it is sexual assault, murder or petty theft.

Common principles still apply, and when we no longer apply those principles, we have lost the pillars that uphold our entire nation.

Does it mean that sometimes a guilty person gets away with a crime?

Sometimes, yes.

But we have to decide which is worse, a guilty person getting away with a crime or an innocent person being punished for a crime they didn’t commit.

Neither is preferred, but we have chosen as a society to do everything possible from punishing the innocent, placing the burden of proof on the government to prove a crime has indeed been committed.

But that burden also falls onto each one of us. It’s not enough to face an accusation by one person. We require evidence that makes sure we know that someone has done something wrong.

Too often, we have seen minorities go to jail because we have not presumed innocence first, and that is a miscarriage of justice.

We have to make sure that everyone has the benefit of being innocent until proven guilty.

That’s why in many cases it is not admissible to even talk about someone’s past history when being accused of a new crime. It can bias us to believe that a past crime can lead to a new crime.

But that is not evidence of the current charge.

These ideals override our quest for punishment or our zeal for revenge against someone — anyone — for a crime.

Justice in a just society must come from these cornerstones of common law. 

Some may ask, where is the justice for the victim of a crime?

It’s a fair concern. 

But handing out punishment isn’t about providing comfort to the victim. It is about holding the guilty accountable.

To make sure we are doing that, we have to presume the accused to be innocent until proven guilty. When we abandon that principle, we have lost our sense of justice for all.

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