Law Society supports claim of right review

April 13th, 2010 at 9:00 am by David Farrar

The Herald reports:

The New Zealand Law Society is welcoming a Government review of the defence used in the spy base case, where three activists were acquitted of damaging property because their actions were based on a belief that what they did was lawful.

Yesterday Justice Minister announced the review of the “” defence, including looking at whether there needed to be a “reasonableness element” to it. …

The Law Society’s convener of the criminal law subcommittee, Jonathan Krebs, said a review was timely.

“The defence of a ‘claim of right’ certainly has a place, and it’s an important and fundamental defence to have.

“But if the defence allows someone to be acquitted where there was criminal intent, however well-principled they thought it to be, then there is something wrong with the criminal law and it may need to be adjusted slightly.

If the Government does not change the law, I suspect we will have a rash of property vandalism against various government buildings and embassies, with vandals using the same defence.

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45 Responses to “Law Society supports claim of right review”

  1. CJD (334 comments) says:

    The judge was entirely wrong in this case in the first place. Of course people have a right to protest, but how can this level of vandalism be contrued to be legitimate protest? How could any reasonable person begin to argue that “their actions were based on a belief that what they did was lawful.” Review the legal position-close the loophole now…before I blow up the entire Greens caucus based on a belief that what I am doing is lawful. At least a reasonable person could argue in favour of the latter.

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  2. Brian Smaller (4,017 comments) says:

    If the Government does not change the law, I suspect we will have a rash of property vandalism against various government buildings and embassies, with vandals using the same defence.

    Not to mention private companies, farms and so on targetted by those looney animal rights people.

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  3. RRM (9,606 comments) says:

    [CJD]:The judge was entirely wrong in this case in the first place. [/quote]

    ROFL – Clearly the schools are on holiday.

    [CJD]: Review the legal position-close the loophole now…before I blow up the entire Greens caucus based on a belief that what I am doing is lawful. At least a reasonable person could argue in favour of the latter.[/quote]

    SERIOUS THREATS – QUOTED FOR FUTURE REFERENCE.

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  4. toad (3,672 comments) says:

    @RRM

    Go easy on CJD – his/her blogname is obviously an abbreviation for Creutzfeldt–Jakob Disease.

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  5. dave (985 comments) says:

    I suspect we will have a rash of property vandalism against various government buildings and embassies, with vandals using the same defence.
    I suspect we won’t. This case does not set a precedent, and anyone who successfully used it will have to have a pretty strong defence.

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  6. petal (705 comments) says:

    “Axe accused bailed on sedition charge – NZ Herald News
    The man accused of an axe attack on Helen Clark’s electorate office says…”

    Someone didn’t have the right lawyer at the time…

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  7. F E Smith (3,309 comments) says:

    I just worry that the Government is changing the law in a reactionary manner every time a high profile case occurs that gets some bad press, and each time it is taking away a defence from the public of NZ. That makes it easier for the government to prosecute you and I.

    Surely it is better to wait and see if there is an appeal, and if there isn’t then to write it off as a perverse jury or a poor decision by the judge to allow it to go to the jury. It does happen, after all.

    I don’t think we should be supporting the Government in making it easier to prosecute the people. After all, those are our defences it is taking away. This is bad law-making and the Law Society should not be supporting it.

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  8. menace (407 comments) says:

    F E Smith. agree totally, our current legal system is the making of hundreds of years.

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  9. CJD (334 comments) says:

    The problem with you Greenie whackjobs it that you have no sense of humour…and the pseudo-intellectial angle doen’t suite you iether Toad

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  10. David Farrar (1,869 comments) says:

    FES – your proposition is based on that the availability of a defence is a good thing. If the availability of that defence encourages people to commit a crime deliberately, hoping they can use it to avoid consequences, then I am not sure it is a good thing.

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  11. CJD (334 comments) says:

    And RPM “SERIOUS THREATS – QUOTED FOR FUTURE REFERENCE” am I now to expect a knock on my door when someone does us all a favour and gets rid of all the Greenies? Give me a break!!

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  12. menace (407 comments) says:

    speeking of green, Good to see them up in poles

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  13. Gooner (995 comments) says:

    DPF, there are a number of “defences” that can apply to what you have just said – necessity and automatism are a couple. But even with both of these the legal tests have to match the facts. I recall a case many years ago where a man robbed a jewelers store and shot the shopkeeper dead. He argued the shooting was a nervous reaction – he was an automaton. The jury didn’t buy it. In the Waihopai case, the jury did buy it. What do we do – dispense with juries because sometimes they get things wrong?

    F E Smith is spot on. This appears to be a knee-jerk response to a non-problem. I agree with Keith Locke.

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  14. menace (407 comments) says:

    What other cases has this defence used in that provided an outcome that didn’t taste good to the public?

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  15. garethw (205 comments) says:

    If the Government does not change the law, I suspect we will have a rash of property vandalism against various government buildings and embassies, with vandals using the same defence.
    Unlikely – the very coverage of this case has ensured that nobody will be able to claim they genuinely believed vandalism was legal, and they absolutely won’t be able to use this case as justification because of that. This has been stated by a number of legal observers.

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  16. RRM (9,606 comments) says:

    National voters think beneficiaries and poor people are coming in the night to bash them and steal their car/TV.

    Therefore appearing to be “getting tough on crime” is good groundwork for the next election. A trio of marginalised peace & love cranks are a gift as collateral damage (= votes lost as a consequence of disapproval) will be minimal. It’s almost as good for the polls as beneficiary bashing. And it’s free!

    Labour paid for their pledge cards with your tax dollars. Nats want to pay for their pledge card with another little piece of your freedom. That’s the real story now.

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  17. F E Smith (3,309 comments) says:

    I don’t think I agree with you there, David. From my reading of the case, the defendants had not planned to use this defence at all- it was an alternative that their lawyers used when their original public welfare defence was rejected by the judge.

    Not many may recall this, but one of those lawyers was Michael Knowles, who was active in the legal challenges to the Springbok tour and, I think, possibly in the defence of some of those protesters. He is an experienced brief in this area of law. I suspect this is one defence that the prosecution hadn’t bargained for, and when they got everything they wanted out of the protestors they thought they had it in the bag. I also suspect this was a case won in the closing addresses, rather than in the main part of the case.

    I could be wrong on that, however!

    I do think the availability of the defence is a good thing, because it can only be used by people who have a genuine and reasonable belief. That means that none of the outlandish proposals in this thread or previous ones would work because a jury would see straight through them. On this occasion, however, the prosecution was meet with defendants who passionately believed in what they were doing, which is an extremely unusual thing to occur. This was a fortuitous coincidence for the defendants, not a planned use of that particular defence.

    Hence it would be wrong to get rid of it in order to ensure that future protesters cannot use it. It is mostly there to be used by well meaning but mistaken people who are trying to do some good, rather than events like we saw at Waihopai.

    Edit: Plus what Gooner said!

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  18. CJD (334 comments) says:

    RPM “National voters think beneficiaries and poor people are coming in the night to bash them and steal their car/TV” what absolute purile rubbish!

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  19. Hagues (711 comments) says:

    “If the Government does not change the law, I suspect we will have a rash of property vandalism against various government buildings and embassies, with vandals using the same defence.”

    Maybe a good reason to go ahead with the civil case. Show that even if you don’t get a criminal conviction you still have to face the consequences of your behaviour.

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  20. Graeme Edgeler (3,274 comments) says:

    1. If anything, the Waihopai case means it is less likely that someone will succeed in a claim of right defence in a political vandalism case than before. They got off because they believed the law allowed what they did, they were wrong and the judge made clear that the law does not allow it. So now everyone knows that it’s illegal, they won’t be able to reasonably claim they thought it was lawful.

    2. The police are by far the greatest beneficiaries of the “It was illegal, but it was in the greater good” defence. The use it every time they illegally obtain evidence after committing trespass, or illegally searching people etc. “Yes, we broke the law to get this evidence, but we should be able to use the evidence anyway”… Most criminals would be quite happy to see this “greater good” proposition gone from the law.

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  21. Graeme Edgeler (3,274 comments) says:

    Not many may recall this, but one of those lawyers was Michael Knowles, who was active in the legal challenges to the Springbok tour…

    And the other one was Antony Shaw, who was, I believe, involved in Finnigan v NZRFU, which effectively succeeded in stopping the 1985 All Black tour of South Africa (although maybe I have my Springbok tour cases mixed up).

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  22. F E Smith (3,309 comments) says:

    “The police are by far the greatest beneficiaries of the “It was illegal, but it was in the greater good” defence. The use it every time they illegally obtain evidence after committing trespass, or illegally searching people etc. “Yes, we broke the law to get this evidence, but we should be able to use the evidence anyway”… Most criminals would be quite happy to see this “greater good” proposition gone from the law.”

    Oh, well said Mr Edgeler. Yes, I hadn’t thought of that, but it is the most frustrating thing to argue in front of a trial judge, only to have them agree with you but admit the evidence anyway. The police can get away with the most egregious offending against civil liberties by virtue of their offending having caught a criminal offender. I have had judges say, in open court, that we mustn’t punish the police by the dismissal of charges against a defendant simply because the right to unreasonable search and seizure, or the inviolability of the human person, has been breached, no matter how outrageously. And, of course, the greater the offending discovered by the breach, the greater the breach can be.

    Somehow I think that if that defence were abolished it would be retained for the police.

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  23. F E Smith (3,309 comments) says:

    That makes sense, Graeme. Get the old guard out when the case needs it.

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  24. MT_Tinman (3,033 comments) says:

    # menace (355) Says:
    April 13th, 2010 at 9:47 am

    speeking of green, Good to see them up in poles

    My interpreters tell me you mean up on poles.

    I agree.

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  25. Kris K (3,570 comments) says:

    F E Smith 9:54 am,

    I agree.
    If this law were to be removed it would obviously be unavailable in cases where it were a genuine defence.
    More knee-jerk reactions based on the outcome of one case.

    This has the same smell as did the response to remove the Defence of Provocation subsequent to the Clayton Weatherston case.

    Does anyone sense an overarching agenda to rewrite New Zealand laws at every opportunity, and, thereby, systemayically remove the freedoms of its citizens?

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  26. davidp (3,551 comments) says:

    Go easy on Toad – his/her blogname is obviously an abbreviation for Toad of Toad Hall:

    [after crashing his second car]

    Mole: You know, I really am worried about Toad.
    Rat: Oh, don’t you worry. It’s just another one of his passions. He’ll grow out of it.
    Toad: [off in the distance] Poop-poop!
    Rat: I hope.

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  27. virtualmark (1,512 comments) says:

    I’d quite like to see the “Claim of Right” defence tied to situations where the defendant had reasonable grounds to believe there was imminent harm to a specific person.

    It should be a valid defence if, to use an example discussed here a few weeks ago, someone burst into a house upon hearing a woman’s screams for help, only to find it was a scary movie with the sound up to 11.

    But it shouldn’t be a valid defence if, to use an example employed by the Waihopai 3, there’s a tenuous connection in logic to some cloudy possible risk to an undefined broad group of people.

    People acting to avert specific others from immediate harm merit a legal defence that they acted with good intentions. That should not be removed. But to my mind woolly-thinkers protesting about some vague possible threat to some broad category of unknown people do not merit this defence.

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  28. Graeme Edgeler (3,274 comments) says:

    I’d quite like to see the “Claim of Right” defence tied to situations where the defendant had reasonable grounds to believe there was imminent harm to a specific person.

    Claim of right is also needed as a defence when there is actually imminent harm to a person (or thing). Claim of right, for example, is the bit of the law which allows someone to break into a car to rescue a dog in obvious distress on a hot day.

    Oh, well said Mr Edgeler.

    My words, but I borrowed the sentiment from Robert Lithgow.

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  29. Bevan (3,965 comments) says:

    What other cases has this defence used in that provided an outcome that didn’t taste good to the public?

    Delusion is thinking you speak for everyone..

    DOnt tell me you are deluded enough to think the public support these plough shares vandals?

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  30. Ryan Sproull (7,056 comments) says:

    This has the same smell as did the response to remove the Defence of Provocation subsequent to the Clayton Weatherston case.

    Does anyone sense an overarching agenda to rewrite New Zealand laws at every opportunity, and, thereby, systemayically remove the freedoms of its citizens?

    The significant difference is that in this case, the defence was successful when most people think it shouldn’t have been. With provocation, the defence was unsuccessful and people freaked out thinking that it could have been.

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  31. virtualmark (1,512 comments) says:

    Graeme, happy to see Claim of Right connected to actions made to avert imminent harm to a person or thing, or imminent damage to some object. Just very unclear of the merits of allowing Claim of Right to be applied to broad-brush “maybe, might be, could of” type woolly thinking.

    If one of the Waihopai 3 was to say to me “thousands of Iraqis and Afghanis are dying because of this” my immediate response would be “Name one”. If they can name a specific individual under current or imminent threat then fair enough. But if they can’t then to my mind they’re talking about a general protest rather than a Claim of Right type “acting in the greater good”.

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  32. alex Masterley (1,495 comments) says:

    The way Power was talking this morning suggested that the review will be nothing more than that.
    The jury decision was wrong. Sometimes that happens. It does not mean the law needs to be changed.
    Most of the time juries get it right.
    I agree with what Gooner and FES said.

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  33. menace (407 comments) says:

    Don’t tell me your so fucken think in the head bevan that you didnt understand what i wrote this time, again, you’ve got to be the dumbest fuck on here, you really are waste of breath mate.

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  34. Kris K (3,570 comments) says:

    Ryan Sproull 10:58 am,

    The significant difference is that in this case, the defence was successful when most people think it shouldn’t have been. With provocation, the defence was unsuccessful and people freaked out thinking that it could have been.

    But either way, Ryan, if as a result of the Waihopai trial the defence of Claim of Right is removed, as was the Defence of Provocation subsequent to the Weatherston trial, then two important means of defence have been (or will be) removed from NZ law. And as a result, as per my earlier assertion, the freedom of the average New Zealand citizen has been further reduced.

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  35. Ryan Sproull (7,056 comments) says:

    But either way, Ryan, if as a result of the Waihopai trial the defence of Claim of Right is removed, as was the Defence of Provocation subsequent to the Weatherston trial, then two important means of defence have been (or will be) removed from NZ law. And as a result, as per my earlier assertion, the freedom of the average New Zealand citizen has been further reduced.

    Yeah, I agree. What’s next to go?

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  36. Kris K (3,570 comments) says:

    Ryan Sproull 11:40 am,

    Yeah, I agree. What’s next to go?

    Which comes back to my earlier question:

    Does anyone sense an overarching agenda to rewrite New Zealand laws at every opportunity, and, thereby, systematically remove the freedoms of its citizens?

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  37. davidp (3,551 comments) says:

    Kris K>Does anyone sense an overarching agenda to rewrite New Zealand laws at every opportunity, and, thereby, systematically remove the freedoms of its citizens?

    I’m not much concerned with the freedom to harm others or the freedom to damage property. If we close some loopholes in the law that potentially allow criminals to escape punishment, then I think that is a good thing. This applies whether the loophole has been there for a long time (eg. provocation being an allowable defence so that people who murdered gay people who had propositioned them wouldn’t be imprisoned); or whether the loophole is due to a novel bit of judicial interpretation that would likely not have been the intention of the parliament who passed the law (eg Waihopai).

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  38. Weihana (4,496 comments) says:

    re: davidp

    “I’m not much concerned with the freedom to harm others or the freedom to damage property. If we close some loopholes in the law that potentially allow criminals to escape punishment, then I think that is a good thing. This applies whether the loophole has been there for a long time (eg. provocation being an allowable defence so that people who murdered gay people who had propositioned them wouldn’t be imprisoned); or whether the loophole is due to a novel bit of judicial interpretation that would likely not have been the intention of the parliament who passed the law (eg Waihopai).”

    You just argued against provocation on the basis of one case. Simply because you disagree with the jury verdict doesn’t mean the defence is flawed. If someone murders your family and he is running away and you shoot him in the back and kill him, what is your defence going to be?

    These defences are not “loop holes” they are valid defences which exist for a reason. Efforts to remove these defences are based solely on certain high profiles cases where the jury’s verdict has questionable merit. But that is what we accept with a jury system; it will fail on occasion. That doesn’t mean we need to remove legitimate defences and try to legislate on every single case that goes to court.

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  39. Weihana (4,496 comments) says:

    DPF wrote: “FES – your proposition is based on that the availability of a defence is a good thing. If the availability of that defence encourages people to commit a crime deliberately, hoping they can use it to avoid consequences, then I am not sure it is a good thing.”

    Criminals commit crime all the time and try to get off on the defence of “I didn’t do it”. Should we remove that defence because juries sometimes get it wrong which encourages criminals to commit crime and try to claim they didn’t do it?
    :-)

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  40. davidp (3,551 comments) says:

    Weihana>That doesn’t mean we need to remove legitimate defences and try to legislate on every single case that goes to court.

    They aren’t legitimate defences. There is no reason to allow murder on the basis of provocation, including the example you gave where a criminal is executed fleeing the scene of a crime. And there is no reason to allow politically motivated vandalism. The fact that a specific case has highlighted the need to remove the loophole isn’t a reason not to. It just illustrates that action is required and the reason for that action, rather than trying to motivate a law change on the basis of a theoretical possibility.

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  41. Weihana (4,496 comments) says:

    davidp, I find it hard to believe that you would maintain your sense of rationality in the wake of finding your family butchered and the culprit trying to flee. I don’t think a person in such a situation deserves a murder conviction. I doubt most people would think such a person deserves a murder conviction, but such theoretical circumstances are not the focus of the public: one particular case is with one particular set of circumstances.

    To suggest that these high profile cases highlight any fundamental flaw in the law belies the reality that public sentiment is focused on the particular circumstances of such high profiles cases and not on how the law applies in general. Indeed you misrepresented provocation’s existence as being so murderers of gay men can get off, when the defence of provocation had no such implied purpose. You highlighted a jury failure, not a failure of the law.

    Juries always have the potential to fail. Criminals say they didn’t do it when they did, and unfortunately the jury finds in their favour. But the defence of “I didn’t do it” isn’t a loophole for that reason. People who didn’t do something shouldn’t be convicted for it. We agree on that at least. But I would also say that there are valid circumstances where a person should be able to claim provocation or claim of right. If the jury gets it wrong it doesn’t mean those defences are “loopholes”.

    Provocation for instance was where “in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control;”.

    Human beings do lose self control in certain situations. Having your family butchered is a pretty typical example that would induce such lose of self control. Such people shouldn’t face murder convictions in my view.

    Weihana.

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  42. davidp (3,551 comments) says:

    Weihana>I find it hard to believe that you would maintain your sense of rationality in the wake of finding your family butchered and the culprit trying to flee.

    That is why we have law… to try and stop people impulsively killing others. If society thinks that revenge killing is okay, then it shouldn’t muck around with ambiguous provocation defences. Instead, it should explicitly allow it in legislation. For instance… The penalty for murder would be listed as life imprisonment, unless a relative of the victims gets hold of the suspected murderer before the police do. In which case the penalty would be listed as death, and the standard of evidence required to establish the offender’s guilt before the execution is carried out is whatever the executioner feels it should be, rather than the normal “beyond reasonable doubt” as determined by a jury.

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  43. Weihana (4,496 comments) says:

    davidp – With respect, you keep misrepresenting what provocation is. I quoted the relevant test which is “in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control”.

    Provocation isn’t simply “revenge killing” as you have characterized it. It relates to a temporary loss of control, not simply a desire for revenge. It pertains to actions taken in a ‘heat of passion’ without reflection and it goes to an assessment of the offenders criminal intent. A person who, in the heat of the moment, kills the butcherer of his family has less of a guilty mind than the person who plans to butcher a family.

    Provocation is not ambiguous. It is clear what the test is, but it is not defined for every set of circumstances because it cannot be defined for every set of circumstances. The law simply cannot be written to account for every possible set of circumstances. That is why we have juries to consider where certain defences apply. If the jury gets it wrong it doesn’t make the defence flawed.

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  44. Gooner (995 comments) says:

    You seem new around here Weihana. Make sure you come back. Your arguments are excellent and correct.

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  45. scrubone (3,074 comments) says:

    “Criminals commit crime all the time and try to get off on the defence of “I didn’t do it”. Should we remove that defence because juries sometimes get it wrong which encourages criminals to commit crime and try to claim they didn’t do it?”

    A point that many of us made during the S59 debate – there are multiple possible defenses to any given charge, including that the person did not do the crime.

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