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Dear Members and Advocates,

“Proof” is a term commonly heard inside a courtroom. You must prove your case. Which side has the ‘burden of proof’? And then to what standard must your proof meet? Is it a preponderance of the evidence? Is it beyond a reasonable doubt?

It would seem obvious that in order to win a court case you’d have to present your proof and the trier of fact (a Judge or a jury) would have to evaluate the quality of your evidence and make their decision. It would seem that the highest court in the land, the Supreme Court of the United States, would have that point nailed. But not so. As Law Professor, Ira Ellman exposed in his article about the SCOTUS’ “Frightening and High” mistake (about sex crime statistics), it is possible to walk into a courtroom and say whatever you want, no matter how baseless, and it can be accepted as fact.

This past week two state decisions fought back on that notion and said ‘enough with the “sex offender” rhetoric, prove this is effective.’  In State v Griffin – NC, a North Carolina appellate court demanded evidence to prove GPS tracking made the public safer before they saddled someone with a GPS monitor for 30 years. Ultimately their conclusion was the State had no proof. The second case was Noe/Doe v. Sex Offender Registry Board a case out of Massachusetts where the Court ruled the State cannot just arbitrarily assign someone to a risk level or determine that they must remain on the sex offender registry for any period of time they determine, without the State proving they still present that level of risk or are a risk at all.

In Massachusetts… “Procedural due process requires that the burden of proof remain with the board to demonstrate the continued appropriateness of the offender’s duty to register, by clear and convincing evidence.” In other words, the Board can’t just walk in and say ‘we feel Mr. X should stay on the registry for 25 years’, but they have to prove, by clear and convincing evidence, that Mr. X is a risk and warrants being on the list for 25 years.

In North Carolina… “The memorandum, however, cited only other court decisions, not evidence, and it did not attach empirical or statistical reports [as to the effectiveness of GPS monitoring]” “The State tries to overcome its lack of data, social science or   scientific   research,   legislative   findings,   or   other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” But neither anecdote,   common   sense,   nor   logic,   in   a   vacuum,   is sufficient to carry the State’s burden of proof.”

These two cases are extremely positive. Not just in their outcomes, but because they reflect a shifting trend in the courts to not just buy in to unsupported claims, but to demand proof that the burdensome requirements imposed on individuals in the name of public safety are proven to actually benefit public safety. It’s a position that the SCOTUS will hopefully take next time they are presented with a sex offender case.

Sincerely,

The Florida Action Committee

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SOME HEADLINES FROM THIS WEEK

 

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