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Mr. Clement said the law required the prosecution to prove that the offense was intentional and not accidental and that video makers could protect their customers with a written disclaimer that gave the performers' age.
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The rationale for eliminating the mens rea requirement in such offenses is that to require the prosecution to establish the defendant's intent, or even negligence, would render such regulatory legislation largely ineffective and unenforceable.
In cases like this one, the law does not require the prosecution to prove motive.
Federal law requires the prosecution to turn over exculpatory evidence to the defense.
Brady v. Maryland, a landmark 1963 case, held that theConstitution requires the prosecution to turn overfavorable evidence to the defense.
Perjury is hard to prove: it requires the prosecution to demonstrate that the defendant not only lied, but did so knowingly.
Assault occasioning actual bodily harm would require the prosecution to prove that the alleged assault on Mr Tomlinson caused him actual bodily harm.
In its brief supporting the Virginia prosecutors, the federal government argued that this procedure was more efficient than requiring the prosecution to present analysts during its case, pointing to the experience in Washington, which used Virginia's system until 2006.
This ignores that the presumption of innocence (dismissed by Moses as "no more than superstition") means that the defence must be entitled to take a position of simply requiring the prosecution to prove their case.
One way to minimise this ill effect would be for the new law to require the prosecution to prove that the defendant did not act in good faith, rather than requiring the defendant to show that he did a matter on which the Nolan Committee has so far kept an open mind.
Only by requiring the prosecution to believe its case beyond a reasonable doubt can we revive the notion expressed by a former United States solicitor general, Frederick William Lehmann, that "the United States wins its point whenever justice is done its citizens in the courts" — not when the jury says "guilty".
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com