Nice oxymoron. At best the processes of the law sometimes help us defend ourselves from its substance.

The fact that a law requires a reversal of the persuasive burden is a reliable signal that there shouldn’t be such a law. The examples you give bear this out. There shouldn’t be a law against the possession of some drugs, and accommodating victors’ show trials is a poor justification for abandoning the presumption of innocence.

(1) They’re meant to keep less probative evidence out of court. This was the rationale for the rule against hearsay. Although exposed to considerable modification over time (in Australia, mainly by the judges, in the UK by both judges and statutorily, in the US by judges), it existed - in its purest form - as an anti-rumour prophylactic.

(2) They’re meant to discourage the state from obtaining evidence that is both relevant and probative by nefarious means (planting listening devices without a warrant, entrapment, torture).

The overarching rationale is always to keep the powers of the state in check, and it is wise to remember that almost all ‘victims’ rights’ movements - even the feminist one, which probably has the most powerful arguments for weakening the accused’s rights at law - inevitably seek a more powerful state.

Welsh’s quotation, however, is a reference to the traditional requirement that the state - with a few, very minor exceptions - bears the persuasive burden of proof (beyond reasonable doubt in a criminal trial). To impose a persuasive burden on the accused - even at the lesser, civil standard (balance of probabilities) is to force him to do a great deal of proving, especially - as Kodjo points out above - in strict liability situations.

Part of the libertarian irritation with strict liability regimes in terms of speeding, minor drug possession and drink driving is the vast power it places in the hands of the state - not everyone who drives over the speed limit does so dangerously. This argument, of course, is ancillary to the ‘revenue-raising’ objection, which is a separate issue.

On smuggling #2—I think the dangers go the other way, as you suggest in #14.

The problem with possession laws is that all that needs to be proven is the stuff was in your possession. It matters not if you didn’t put it there, didn’t know it was there, & indeed couldn’t and wouldn’t have imagined in your wildest fancies that it was there.

This not only opens the door to innocent being exposed to great risk by criminals, but also provides the authorities with the capacity to frame & ultimately jail anyone.

Moreover, if someone I know v well who was a police detective in Victoria back in the late 70s and early 80s was telling the truth, and I have not reason to think otherwise, then this actually happened then.

In any case, I have little doubt it happens today in jurisdictions across the world.

No, strength and weakness have nothing to do with it. Usually, there has not been due process whereby in the courts opinion, to allow the evidence would create a bigger wrong. This why so often matters are held over while time is taken to consider the submissions as to why certain evidence should or shouldn’t be allowed. The courts tend to get it right most of the time but the court process itself is mind boggling at the best of times and certain decisions to a lay person can seem totally unreasonable. But we are talking about a process that has been refined since the Magna Carta.

It is an argument against a bill of rights as such a document will freeze rights in such a manner as to render the state incapable or severely handicapped in dealing with altered circumstance. The American Founding Fathers did not conceive of the Mafia in 1776, nor did they conceive of automatic weapons and kids who commit mass murder for the purpose of obtaining fame.

Excluding weak evidence, after all, is the exact purpose of those rules.

What you are referring to ‘due process of law’, the cornerstone of the judicial system.

To understand it simply, if the rights of the guilty are not protected to the fullest extent the rights of innocent are lost. Taking for example the Woolmington case cited above, the House of Lords quashed the conviction even though they could have decided that although the trial Judge have erred in his direction to the jury there was no substantial miscarriage of justice. They rightly decided that they couldn’t “say that if the jury had been properly directed they would have inevitably come to the same conclusion” [of guilt]. An observer would note that the evidence did suggest that the original guilty verdict was correct but the directions given to the jury had undermined the defendant’s rights.

This is the reason why although the lawyer Brendan Keilar was undoubtedly shot by Christopher Wayne Hudson (why do killers always have a middle name?), he will be represented by one of the victim’s peers because as officers of the court lawyers have a duty to the court and the judicial system to ensure that any defendant receives due process of law no matter whether they believe their client innocent or guilty. SL’s quote notwithstanding, (‘throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt’) the prosecutor has a first duty to the court to ensure that the defendant receives due process of law.

Hence why in the interest of due process, although “the State has very strong evidence of guilt but is prevented, by (for example) the rules of evidence from presenting that evidence to the jury”

Shouldn’t the burden of proof be on you in this case anyway?