Auckland Clip 1: The Presumption of Innocence

I think actually that people are quite hard on themselves and, you know, this is one of the reasons that I believe that the presumption of innocence that characterizes our legal system is such an absolute bloody miracle. I cannot figure out how in the world that idea ever came about and developed universal acceptance. It's so unlikely, you know.

If you deal with people in a clinical setting and they're somewhat depressed, which is not uncommon, and they've done something that they are guilty about, independent of whether they've done something that they FEEL guilty about, independent of whether they're actually guilty, they tend to take themselves apart.

Now, that's especially true if you happen to be high in trait neuroticism, which is one of the big five traits. Extraversion, which is a positive emotion dimension; Neuroticism - a negative emotion dimension; agreeableness, which is compassion and politeness; Conscientiousness, which is orderliness and industrious; and openness, which is intellect and openness proper, something like creativity.

If you're higher than normal in neuroticism, it's very easy to take yourself apart if you're feeling guilty about something that you've done. And people, many people, will feel guilty about what they've done at the drop of a hat. I mean, first of all, they accuse themselves of their own shortcomings, and then if they are accused by someone else, it's often very, very difficult for them to mount their own defense. You know, to believe in their own innocence.

You know, because you'd think, well, you know, the police come to your door, or a mob comes for you, let's say, on Twitter, and you know you're a stalwart sort of person, and you pronounce your innocence, and you know, you're a brick wall; nothing gets through that. And that's just not how it goes, man. If the mob comes for you on Twitter, the probability that if you're a reasonably well-socialized person that you're going to be wondering what you did wrong and how you should apologize and what you should do to put yourself back in the good graces of the community is extraordinarily high.

You know because, well, you probably have done some things wrong in your life, and you probably are guilty about this and that, and perhaps you didn't conduct yourself perfectly. And so, it's very difficult for you to mount your own defense, to presume your own innocence, and mount your own defense.

Which, by the way, is why it's a very good reason to have a lawyer. One of the things I would say, I'm dead serious about this, I've worked with legal cases a lot and learned a lot about the limitations and lack thereof of police ability to question you, for example. If you're ever accused of something serious, then do not talk to the police until you have a lawyer. Because you will definitely get yourself in all sorts of trouble.

And so, you might think, well, if you're innocent, and the police will tell you this, too - then you have nothing to be afraid of. Of course, that's complete bloody rubbish because you always have something to be afraid of, and innocence and guilt are relative things, and they're not that easy to determine. So don't be so sure that you can defend yourself, especially for reasons we'll go into, but also don't be so sure that you don't need someone who's professional to stand sort of outside of you and to look at you like an individual among other individuals and to adjudicate your relative guilt or innocence in that manner.

You know, in our legal system, you're actually not required to be perfect. And thank God for that. What you're required to be is reasonable, and like a reasonable and let's say somewhat normative human being. You're not required to go above and beyond the duty with regards to heroism, for example.

I was involved in a court case; it was quite a terrible case where a woman was up on trial for murder, and she happened to be in the wrong place at the wrong time, shall we say. She was in a motorhome in a junkyard waiting for her boyfriend, and she happened to walk out of the motorhome just as a gang was killing an enemy, I guess an enemy gang member, very, very brutal. And they stripped her naked and told her that they would rape her and that they would kill her child; she had one child, unless she participated in the murder. And so, she did, and she ended up dropping a rock on the unfortunate gentleman's head.

Although by all appearances, he was well on the way to being dead at that point. And at that point in Canada, the law was there was no excuse for participating in homicide regardless of the... what would you call? Ameliorating preconditions. But they did decrease her culpability substantially because they believed there was genuine reason for her to believe that her life was threatened and that she was going to be subjected to sexual assault and that her child, I don't think they did threaten her child, but they did certainly threaten her child with no longer having a mother.

So... in any case, we can get involved in very terrible things, and it's very difficult for us to defend ourselves. You need a lawyer to do that, and so that's a good piece of practical advice, and I would strongly recommend that you follow it if you ever happen to find yourself in trouble.

It's also the case if you find yourself in trouble at work or on social media, you know. It's hard to sit and remind yourself that you deserve the benefit of the doubt and then to try to make a coherent case for that. One of the things I often did for my clients who were in trouble at work for one reason or another, often because, well, for a variety of reasons.

Sometimes because they hadn't done everything they should have at work, and so they carried some burden of responsibility for that. But sometimes because there were people who were genuinely malevolently predisposed towards them, bullying them in terrible ways. And they just weren't good at mounting their own defense, which was also one of the things, by the way, that made them prone to being bullied.

And so, we would work for hours on at least hypothetically outlining a story that involved the possibility that the person who is being accused, so that would be my client, was actually innocent of the charges. You know, and that's something that's useful to do for yourself if you ever run into trouble. You don't have to believe that you're innocent to begin with, but you could make the strongest case possible that you are.

Right? Because everyone's entitled to a strong defense. And then just see how that flies, you know, see if it's coherent. I mean, you could make the opposite case too - just so you know what you might be in for, but you know, we have an adversarial system for a reason, and part of the reason is that one of the easiest ways to get at the truth, insofar as that's possible, and that's not an easy thing, is to attack, you know, with a certain degree of intensity and viciousness and defend with a certain degree of intractability and coherence.

And you need both of those.