Probable Cause
Posted by Sappho on November 12th, 2020 filed in News and Commentary
Suppose the police come to your house to question you. It’s quickly apparent that they suspect you of sexual assault. You say “Lawyer,” and refuse to answer any more questions. Does your reticence in cooperating with the police investigation mean that you are guilty?
Suppose some anonymous troll on the Internet accuses you of molesting children. Another anonymous troll suggests that the local DA should impanel a grand jury to investigate. If you don’t want that grand jury impaneled, does that suggest that you know at heart that you are guilty, because a truly innocent person would want to be investigated and cleared.
On the other hand, suppose you report to the police that you have been sexually assaulted. Should police not even investigate your report unless you can prove beyond reasonable doubt, right from the start and without any assistance, that you were indeed sexually assaulted?
A common mental trick is to shift the standard that should be applied to open an investigation, depending on whether you like or mistrust the person who would be investigated, whether you’re a fan of the person making the accusation or of the person accused, and what would be convenient for you to believe. And we can’t, any of us, guarantee that we’re immune to such bias. But we can at least take this as a starting point:
Being investigated has a cost. Guilty people don’t want to be investigated, but neither do innocent people. Before anyone is investigated, there should be at least some evidence that there’s cause for investigation (that could include even one witness, whether victim or bystander – but not if you quickly discover contrary evidence such as multiple witnesses saying otherwise or the accused being hundreds of miles away). At the same time, nothing can be proven until it’s investigated, so “beyond reasonable doubt” can’t be the standard for anyone bringing forth an allegation to be investigated. Sometimes you have to emphasize one of these points, sometimes another, depending on which error someone is making.
This standard applies whatever the substance of the allegation someone wants investigated. Investigations should surely not require proof, but should still require evidence, not just bald assertions.