Should Juries Be Allowed to Ask Questions During a Case? [Archive]

Kevin_Lowe

26th February 2009, 11:08 PM

I just got off of serving as a juror on a case. (I didn't mention this, earlier, because I didn't want anyone to start asking questions that I would not be allowed to answer.) And, during the trial, I and several other jurors, had questions we would have loved to hear both the plaintiff and the defendant address, and never did.
However, in the United States, it is strictly prohibited for jurors to communicate with either party, in any way, at least until the case is over.

So, my questions for all of you is:
1. Why?

Because the adversarial system is set up to maximise the opportunities of the lawyers to control the flow of information to the jury, and so justify their existence and salaries.

Letting juries ask obvious questions takes control of the proceedings away from the lawyers, and makes the lawyer's role less valuable (and hence less worth paying money for).

Also courts like to keep relevant information from juries by ruling certain kinds of evidence inadmissible, and hoping the juries don't think to ask about it. Juries might be prone to asking awkward questions about such excluded evidence, whereas lawyers are required to collude not to bring up any gaps in the prosecution or defence stories caused by such evidence being excluded.

2. Do you agree or disagree that juries should be able to ask questions, somehow?

Of course they should. The very idea that the people whose responsibility it is to decide the facts of the matter should be denied any relevant information is an absurdity.

3. If you do agree, what would be an appropriate system for doing so?

I think a system where we could submit anonymous, written questions would be nice. The judge would rule if each question was legally appropriate, before submitting them to the parties. And, of course, each party would be given a fair and reasonable amount of time to prepare their answers.

I doubt that having a system where we can "raise our hands" anytime we wanted, would work very well. That would be prone to abuse and triviality and such, and would only prolong the time we serve.

The existing system is prone to abuse and triviality anyway, at least if the jury is doing it they have a vested interest in getting the whole thing over with. I say give them a crack at each witness after the prosecution and defence, and a crack at the prosecution and defence after their summing-up.

Soapy Sam

27th February 2009, 02:33 AM

A friend on jury duty was told he could not take notes.
Can anyone explain the thinking here?

Kevin_Lowe

27th February 2009, 02:39 AM

A friend on jury duty was told he could not take notes.
Can anyone explain the thinking here?

Juries would take notes wrong and so confuse themselves. It's much better for reaching the correct outcome if they rely solely on what the lawyers say in their summing-up. Or so they say.

Again I tend to suspect that this is a system for maximising the importance of the prosecution and defence lawyers at the expense of maximising the chance that the jury reach a verdict based on the evidence.

sphenisc

27th February 2009, 02:42 AM

A friend on jury duty was told he could not take notes.
Can anyone explain the thinking here?

I've taken notes on jury duty in a Scottish court. No-one made any comment on it. Was it a case which might be of particular interest to the media?

Springfork

27th February 2009, 03:54 AM

I think I'd trust my notes more than I would my poor memory. Perhaps that's what the lawyers are counting on. A small digital recorder hidden in your front pocket might be useful. Shhh!:covereyes

Paul W

27th February 2009, 04:59 AM

As far as I am aware, jurors in Britain can ask questions. I have seen it suggested that the lawyers involved like this because it gives them a feel for how the jury is thinking.

joobz

27th February 2009, 05:28 AM

Also courts like to keep relevant information from juries by ruling certain kinds of evidence inadmissible, and hoping the juries don't think to ask about it. Juries might be prone to asking awkward questions about such excluded evidence, whereas lawyers are required to collude not to bring up any gaps in the prosecution or defence stories caused by such evidence being excluded.

Of course they should. The very idea that the people whose responsibility it is to decide the facts of the matter should be denied any relevant information is an absurdity.

I think you just exposed one of the best reasons for controlling information. Something being inadmissable isn't an absurdity it's a byproduct of defendant rights.

Disbelief

27th February 2009, 05:51 AM

Juries would take notes wrong and so confuse themselves. It's much better for reaching the correct outcome if they rely solely on what the lawyers say in their summing-up. Or so they say.

Again I tend to suspect that this is a system for maximising the importance of the prosecution and defence lawyers at the expense of maximising the chance that the jury reach a verdict based on the evidence.

Why would you need to when all of the proceedings are recorded anyway? All a juror has to do is ask for the information.

BPSCG

27th February 2009, 05:53 AM

I think you just exposed one of the best reasons for controlling information. Something being inadmissable isn't an absurdity it's a byproduct of defendant rights.Okay, but why shouldn't jurors be allowed to hear both sides present their arguments, then submit written questions to the judge, who could then ask them or deny them as inadmissible?

I understand the US system is adversarial, but the adversary system is a means to an end, not the end in itself. The end is better justice for everyone; why should jurors not be allowed to ask questions, if so doing will enable them to arrive at a more just verdict?

Wowbagger

27th February 2009, 07:26 AM

Most states allow this. It's up to the judge.
(snip)
article on jury questions in Florida. (http://www.sptimes.com/2008/01/04/State/Change_lets_jurors_su.shtml)
Some states and judges allow jurors to submit questions. See this article for a good treatment of the issue:
http://lawreview.kentlaw.edu/articles/78-3/mott.pdf
I was not aware it was allowed in some cases. Thanks!

Isn't it that the system in the US (and Australia, the UK and many other countries) is adversarial rather than inquisitorial? It's up to the lawyers to ask questions and make arguments and the jury to decide the merits of the respective cases. That is what the judge said, when I asked him these questions.

A friend on jury duty was told he could not take notes.
Can anyone explain the thinking here? I was allowed to take notes. In fact, I had written good questions I would have liked to have had answered, in my notes. In addition to the actual notes.

Why would you need to when all of the proceedings are recorded anyway? All a juror has to do is ask for the information. The act of writing down stuff helps you remember key points.

Also: As I discovered, sometimes it takes a while for them to "prepare" the evidence, after you ask for it. And, we were never given a copy of the transcript. When we wanted to look at someone's testimony, we had to sit through a complete read-through of the transcript of the testimony, by the stenographer, instead.

I suppose, in some cases, the judge will allow juries to read the transcripts, themselves, though.

fuelair

27th February 2009, 07:35 AM

I think you just exposed one of the best reasons for controlling information. Something being inadmissable isn't an absurdity it's a byproduct of defendant rights.My problem is that if any real evidence (evidence that demonstrates conclusively that the defendant is guilty)is available it should always be admissable - even required to be presented. Fruit of the poisoned tree my rectum.

VulcanWay

27th February 2009, 07:42 AM

I've been on a jury myself and disagree that it's a good idea to allow jurors to ask questions.

It's not the job of the jury to investigate - what information is allowable and what is not has been decided prior to the case even being presented or gets ruled on as they go. It's the job of the attorneys on each side to present the information that gives them the best strategy to win and the job of the judge to decide what belongs in the courtroom. To say that not allowing a jury to ask questions in order to keep attorneys valuable is BS.

The jury that I served on had the opportunity to speak to the defendant's attorney after all was said and done (at the attorney's request) and he answered all of our questions. As it turns out, when we stepped back to look at the answers in a non-biased fashion, there was good reason for those answers not to have been brought to the courtroom. A good number of our questions would have given us answers that would have biased us one way or another without any real relevance to the case at hand. The court did its job just fine.

You don't serve on a jury to satisfy your curiosity - you're there to make a final ruling on the evidence as it is presented to you, no more and no less.

VulcanWay

27th February 2009, 07:47 AM

My problem is that if any real evidence (evidence that demonstrates conclusively that the defendant is guilty) should always be admissable - even required to be presented. Fruit of the poisoned tree my rectum.
If such a thing were allowed, I'd be looking at emmigrating again. If a few guilty go free because police abused their powers, I'm willing to accept that over losing my (and your) rights of due process, protection from unreasonable search and seizure, etc.

Kevin_Lowe

27th February 2009, 09:07 AM

I think you just exposed one of the best reasons for controlling information. Something being inadmissable isn't an absurdity it's a byproduct of defendant rights.

It's both, but primarily it's an absurdity.

The legal pretense is that the only way the law can possibly stop police from infringing on criminals' rights (and yes, I chose the word criminal carefully) in order to acquire evidence that will convict them is to throw such evidence out. As opposed to vigorously prosecuting both of the criminals involved, the one in uniform and the one out of uniform, a solution which is rejected for no adequately explained reason. Personally I'd far rather an outcome where the two lawbreakers get to share a cell rather than an outcome where the two lawbreakers both get to walk away, but obviously I'm far too naive to fall for understand the deep legal thoughts involved.

Why would you need to when all of the proceedings are recorded anyway? All a juror has to do is ask for the information.

Note-taking aids memory, and more importantly you can write down questions or notes about thoughts which strike you which will not necessarily be part of the court transcript. I might write down in my notes "Where was Professor Plum on the night of the murder, and did he know about the candlestick?", for example.

Suddenly

27th February 2009, 11:49 AM

It's both, but primarily it's an absurdity.

The legal pretense is that the only way the law can possibly stop police from infringing on criminals' rights (and yes, I chose the word criminal carefully) in order to acquire evidence that will convict them is to throw such evidence out. As opposed to vigorously prosecuting both of the criminals involved, the one in uniform and the one out of uniform, a solution which is rejected for no adequately explained reason. Personally I'd far rather an outcome where the two lawbreakers get to share a cell rather than an outcome where the two lawbreakers both get to walk away, but obviously I'm far too naive to fall for understand the deep legal thoughts involved.

No... you are just totally ignorant as to history and practical reality. The adequately explained reasons aren't exactly obscure or hard to find.

That more or less used to be the remedy until relatively recently. Why used to be? It didn't work. First off, nobody really wants to prosecute cops, especially when the accused is convicted.

Second, it is making police mistakes criminal. In that case you are either going to throw cops in jail for not being up on the most recent points of law or you are going to have to legalize violations from ignorance. The former is hardly a police recruitment tool, the latter promotes ignorance.

Sure, the suspect could sue... good luck with that from a jail cell, a crack dealer suing a career cop for crashing his house without a warrant.

Excluding the evidence is a practical solution. It gives the officer no reason to break the law as the price is heavy, and he's likely to be demoted / fired for screwing up really badly because it hurts the governmental interest. Letting the rare criminal go free (and this is rare due to things like the harmless error rule... most paranoia over this is anecdotal driven for the most part) is small potatoes to prevent a government from having an interest in breaking its own laws.

I forgot... I'm part of a sooper sekrit cartel out to restrict the flow of information to jurors for personal gain so I'm not to be listened to.

Nevermind.

Suddenly

27th February 2009, 12:04 PM

I was not aware it was allowed in some cases. Thanks!

That is what the judge said, when I asked him these questions.

I was allowed to take notes. In fact, I had written good questions I would have liked to have had answered, in my notes. In addition to the actual notes.

The act of writing down stuff helps you remember key points.

Also: As I discovered, sometimes it takes a while for them to "prepare" the evidence, after you ask for it. And, we were never given a copy of the transcript. When we wanted to look at someone's testimony, we had to sit through a complete read-through of the transcript of the testimony, by the stenographer, instead.

I suppose, in some cases, the judge will allow juries to read the transcripts, themselves, though.

The system as it stands is a largely an anachronism based on trial by combat and ran by century old assumptions as to human behavior from days where life was far less complex and diverse than it is now.

There is a standard jury instruction here that tells the jury to consider the confidence shown by a witness when considering the credibility of eyewitness identification. No matter that the level of confidence has been shown by studies to be almost completely independant as to the level of accuracy as to eyewitness testimony.

Showing an eyewitness an array of pictures or a line up of suspects is almost never double blind.

Same with those processing criminal evidence. I've seen evidence submissions to the (police run) crime lab that not only specified the suspect sample, but included his criminal record. No chance for predjudice there...

The idea that a juror has some magical ability to look at a stranger in an unusual and stressful situation talking and tell if he is lying or not.

I could go on...

The irony is that we are locked into some of these things by the same constitution that protect the rights of the accused...

Ashles

27th February 2009, 12:16 PM

Why would you need to when all of the proceedings are recorded anyway? All a juror has to do is ask for the information.
I thought that proceedings are not recorded unless one of the party specifically requests (and pays for) a transcriber.

At least that was my understanding for UK cases.

A friend on jury duty was told he could not take notes.
Can anyone explain the thinking here?
The article fishbait linked to (http://www.sptimes.com/2008/01/04/State/Change_lets_jurors_su.shtml) has a reason. One that appears to me to be incredibly stupid.

Juror note-taking also causes uneasiness for Fleischer, who has never allowed it in her 23 years on the bench. She worries it will distract jurors from watching a witness' demeanor on the stand.
"They have to judge the credibility of these witnesses," she said. "It's really crucial that they're observing them."

So it's less important to be able to ensure you remember actual answers and facts about the case as it is to reach a conclusion based on their demenour and body language???

I can understand wanting the jurors to pay attention to how the accused responds, but at the specifically prohibited expense of taking notes?
That seems ridiculous to me.

Do they forbid policemen taking notes when interviewing people at crime scenes in case they miss any vital body language?

Drudgewire

27th February 2009, 12:43 PM

Like with everything, children's television provides the answer to why this would be a terrible idea.

Raf95qZ0HqU

:D

Suddenly

27th February 2009, 12:47 PM

I thought that proceedings are not recorded unless one of the party specifically requests (and pays for) a transcriber.

At least that was my understanding for UK cases.

Here it is required that everything that happens in court be transcribed. In a criminal case it can be grounds for vacating a trial if a transcription does not take place.

The article fishbait linked to (http://www.sptimes.com/2008/01/04/State/Change_lets_jurors_su.shtml) has a reason. One that appears to me to be incredibly stupid.

So it's less important to be able to ensure you remember actual answers and facts about the case as it is to reach a conclusion based on their demenour and body language???
It is even more stupid to assume a juror can decode such demenour and body language, being able to seperate someone lying and someone just totally uncomfortable with speaking in public, that sort of thing.

However, forced to apply this assumption, the ban makes sense except for...

I can understand wanting the jurors to pay attention to how the accused responds, but at the specifically prohibited expense of taking notes?
That seems ridiculous to me.

Do they forbid policemen taking notes when interviewing people at crime scenes in case they miss any vital body language?

...that. Most people can walk and chew bubblegum at the same time.

Another reason is that they worry about jurors emphesizing one fact over another when they go to deliberate, or one juror's recollections trumping another just because one wrote it down. When testimony is taken the jurors have yet to be instructed in the law so they really don't know what is important (which in and of itself is somewhat insane). Taking note of what a juror thinks is important is dangerous because they haven't been told what is important to the case, and so these notes reflect ignorance and so on.

The fallacy is that the jurors, without such tools, will hear all the evidence evenly and then later recall it to apply facts... to allow some of the evidence to be repeated via transcript or notes will emphesize some evidence over other evidence or one juror over another or some crap like that.

This is, of course, silly. Maybe when most trials took maybe a day or two it was at least reasonable, but to expect this in a two week trial? Please.

JWideman

27th February 2009, 01:15 PM

As a juror, always remember that the defendant is innocent until proven guilty. If you cannot conclude, based on the evidence presented, that they are guilty beyond a reasonable doubt, then you must aquit.
I was a juror once, and in that trial there was much that we weren't told. And the only evidence was the victim's own testimony, as well as the statement he had made to the cops about who had shot him. In the end, it didn't matter whether the shooter was the neighborhood bully who shoots people he doesn't know, or the neighborhood drug dealer who shoots people who don't pay him. Someone got shot and survived to tell who did it. And the idiot prosecutor caused a mistrial. :P

gumboot

27th February 2009, 03:35 PM

As far as I am aware, under the NZ system the Jury cannot directly question any witnesses, however they can ask for clarifications, and before or while they debate the facts they can return to ask any question they wish to clarify matters or confirm things.

Absolutely everything is recorded in the court room by a professional scribe, and the jury can reference these notes to confirm facts.

Personally I believe the jury system is deeply flawed, because your average person is woefully ignorant of the legal process and generally incapable of skeptical objective reasoning.

A prime example occurred here with an infamous case - a youth was convicted of killing his five family members, however the defense team always argued that he was innocent and that the trial was fundamentally flawed. After years of appeals finally the Privy Council ruled the trial a miscarriage of justice - he's currently awaiting a new trial. The mistrial was ruled based on a number of key aspects of the case that were either not admitted to the court, or that were dishonestly presented by the prosecution.

Afterwards, a juror from the original trial wrote a lengthy piece to the national newspaper railing against the Privy Council judgment and declaring that it "made no difference to him" and that the guy was still guilty. The juror then listed the key evidence that had convinced him, and surprise surprise, some of it was the very evidence that was at the center of the Privy Council appeal. At that point I realised how woefully ill equipped the average citizen is to be a juror.

Here you can elect to be tried either by jury or by the judge.

Were I innocent of a crime, I would elect to be tried by a judge. If guilty, I would elect to be tried by jury.

Merko

27th February 2009, 03:57 PM

Here you can elect to be tried either by jury or by the judge.

Were I innocent of a crime, I would elect to be tried by a judge. If guilty, I would elect to be tried by jury.
Watch out for what you say. When you're tried by a jury, some hard-working prosecutor might dig this post up and use it against you!

gumboot

27th February 2009, 04:00 PM

Watch out for what you say. When you're tried by a jury, some hard-working prosecutor might dig this post up and use it against you!

Alternatively I could just never commit a crime... ;)

I Ratant

27th February 2009, 04:24 PM

Alternatively I could just never commit a crime... ;)
.
Criminals aren't the only people who get trials! :)

27th February 2009, 04:26 PM

Interestingly, in the excruciatingly long civil trial I had the joy to be on the jury for, we could ask questions. When each witness was done, you wrote down your question, gave it to the baliff, who gave it to the judge, who called a sidebar, and then if they all were willing, or if nobody convinced the judge not to allow it, the judge would read the question to the witness and ask for an answer.

Several "interesting" things did in fact come out of that, since the supe who started the ruckus in this case had stepped down from being supe, neither lawyer asked why he stepped down, and so we were curious. The question was "so, why did you step down as supervisor". The accuracy of that answer was disputed, but was somewhat revealing, I thought.

27th February 2009, 04:27 PM

Fredrik

27th February 2009, 04:29 PM

If such a thing were allowed, I'd be looking at emmigrating again. If a few guilty go free because police abused their powers, I'm willing to accept that over losing my (and your) rights of due process, protection from unreasonable search and seizure, etc.
You're not automatically losing your rights/protection if fuelair's suggestion gets implemented. The only way you can completely lose them is if it's made completely legal for law enforcement agencies to do these things. An option that seems reasonable to me is to make sure that all evidence is considered, and that any cop or whatever who violates a person's rights is punished for it, even if that person gets convicted later. For example: Someone kills a bunch of kids because he thinks it's fun and a cop finds the evidence by searching the guy's house without a warrant. It makes a lot more sense to me to send both of them to prison than to let them both go.

Edit: I didn't see #21 until after I posted this.

Kevin_Lowe

27th February 2009, 04:54 PM

No... you are just totally ignorant as to history and practical reality. The adequately explained reasons aren't exactly obscure or hard to find.

I don't know why you run this appeal to personal authority every time we disagree about legal procedures. It always turns out I've heard the argument you bring up before and I've already discarded it for good reasons.

That more or less used to be the remedy until relatively recently. Why used to be? It didn't work. First off, nobody really wants to prosecute cops, especially when the accused is convicted.

Second, it is making police mistakes criminal. In that case you are either going to throw cops in jail for not being up on the most recent points of law or you are going to have to legalize violations from ignorance. The former is hardly a police recruitment tool, the latter promotes ignorance.

The first is not a reason to throw out good evidence. It's a problem with unequal enforcement of the law, which is not solved by throwing out good evidence. The solution should be to vigorously prosecute police who break the law.

The second is a positively idiotic reason to throw out good evidence. Citizens are expected to know the law, and police should definitely be expected to know the law, particularly as it pertains to citizens rights. I really don't care if holding the police accountable to the law makes it harder to recruit police.

In fact the current system to a significant extent makes a mockery of citizens rights. You don't really have the right not to have a police officer, say, rifle through your personal possessions if they feel like it. You just have the right not to be convicted of a crime based on any evidence they find while rifling.

I forgot... I'm part of a sooper sekrit cartel out to restrict the flow of information to jurors for personal gain so I'm not to be listened to.

Nevermind.

Lawyers do have an extensive mythology they use to justify their takeover of the criminal courtroom. If you believed everything they say, there are very good, public-spirited reasons for absolutely every procedural rule that turns the adversarial court system into a game played for the profit of lawyers rather than a process designed to find the best evidence-based conclusions.

Unfortunately there's always the example of the Continental, inquisitorial model where the defence lawyers are mostly on the sidelines where they belong, the judge and jury act as investigators of fact, and (it's reasonable to assume) verdicts are more likely to be based on the facts that procedural maneuvering or professional spin.

The simple fact is a legal system doesn't need the elaborate array of defence escape hatches we are currently stuck with to work. That's just a fiction lawyers came up with to justify the existence and use of those escape hatches in exchange for money.

Professor Yaffle

27th February 2009, 05:11 PM

On the issue of note taking (which is allowed in the uk):

Mock juries were either permitted to take notes or not and provided with access to the trial transcript during deliberations or were not given access. Juries viewed a videotape of a complex trial involving multiple plaintiffs. Note-taking juries were able to distinguish among differentially worthy plaintiffs when assigning awards while non note takers did not distinguish among the plaintiffs and allocated higher overall compensation. Note-taking was significantly more effective than access to trial transcripts in increasing jury competence. Note-taking juries appeared better able to recognize probative evidence and reject false lures than were non note-taking juries. Limits and implications of the present study were discussed.
http://www.ingentaconnect.com/content/klu/lahu/2001/00000025/00000004/00341421?crawler=true

Uncayimmy

27th February 2009, 05:12 PM

For example: Someone kills a bunch of kids because he thinks it's fun and a cop finds the evidence by searching the guy's house without a warrant. It makes a lot more sense to me to send both of them to prison than to let them both go.

Edit: I didn't see #21 until after I posted this.

Send him to prison on what charge? Trespassing? What if he believed he was correct but was mistaken? What if the sheriff ordered the deputy to do it? Is it trespassing to think you are doing your job? Do we want law enforcement people and even judges issuing warrants to face prison because it to the Supreme Court to figure out if it was reasonable? It just won't work.

Besides, you're missing the bigger picture here. It's not about an individual (the cop) violating someone's property rights. It's the government violating the constitution. If you jail individuals, the government is getting off free and clear. You are in effect permitting the government to ignore its own rules.

Perhaps then we should make an addendum to the fourth amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Unless, of course, the person did something we later found to be illegal.

If you don't exclude the evidence, what's the point of having the amendment in the first place?

balrog666

27th February 2009, 05:25 PM

technoextreme

27th February 2009, 05:35 PM

How would asking questions of witnesses let you identify who hired the best lawyer?
Psstttt..... Pssstttt.... Lawyers hire witnesses.
Personally I believe the jury system is deeply flawed, because your average person is woefully ignorant of the legal process and generally incapable of skeptical objective reasoning.
No one exists that would fit that criteria. Im smart. I am skeptical but dam as hell I am not qualified to distinguish ******** in every single case that would arise. It also is an argument from ignorance because who says that those people are average assuming of course New Zealand operates in a manner similar to the United States.:)

Wowbagger

27th February 2009, 06:29 PM

Some of you are talking about criminal trials, and that is okay!

Does anyone think there would be a difference in the appropriateness of jury questions, between civil and criminal trials?

Were I innocent of a crime, I would elect to be tried by a judge. If guilty, I would elect to be tried by jury. That's good to know, if any of us ever find ourselves on your jury. ;)

How would asking questions of witnesses let you identify who hired the best lawyer?
It was possible incompetence by one of the lawyers that lead to one of my biggest questions. His answer could have potentially saved part of his own case.

linusrichard

27th February 2009, 07:31 PM

In fact the current system to a significant extent makes a mockery of citizens rights. You don't really have the right not to have a police officer, say, rifle through your personal possessions if they feel like it. You just have the right not to be convicted of a crime based on any evidence they find while rifling.
There are two problems here. First, that's how negative rights work. To say you don't have a right to be free from x, you only have a right to consequence y if x happens - how else could it work? Having the right to be free from unreasonable search doesn't mean it will never happen (although it normally doesn't happen, thanks to the Exclusionary Rule) - it means if it does happen, there is some remedy.

Second you absolutely do have a right to not have a police officer rifle through your personal possessions if they feel like it. You can vindicate your right in the way that persons normally vindicate their rights - by suing. The Exclusionary Rule does not supplant such a lawsuit (known as a Section 1983 suit). The Exclusionary Rule supplements the Section 1983 remedy, based in part on a recognition that Section 1983 suits are not sufficient deterrent to police misconduct.
Lawyers do have an extensive mythology they use to justify their takeover of the criminal courtroom. If you believed everything they say, there are very good, public-spirited reasons for absolutely every procedural rule that turns the adversarial court system into a game played for the profit of lawyers rather than a process designed to find the best evidence-based conclusions.
Not to take away from your criticism of the system, but I kind of think that if this had been engineered by money-grubbing lawyers, criminal prosecution and defense would be high-paying jobs, which they are, for the most part, not.

Puppycow

27th February 2009, 07:44 PM

I served on a jury in NY state once and we were allowed to submit questions to the judge afterwards (after both sides rested and we started deliberations). But the questions were dumb questions. I told them the answer, but there were some pretty dumb people who asked the judge anyway. They wanted to see evidence that hadn't been introduced in the trial. I said that if they didn't introduce it in the trial, we can't see it, and we don't need to see it (it was about a point that both sides stipulated was true).

gumboot

27th February 2009, 07:53 PM

.
Criminals aren't the only people who get trials! :)

I said I would only chose a trial by jury if I was guilty.

gumboot

27th February 2009, 07:57 PM

If I was an American I would be far more worried about rampant prosecution violations of due process than I would juries being able to ask questions.

Frankly I find it utterly astonishing that in the US most forensic crime labs are part of the police department, and staffed more often than not by police or former police!

Is it any surprise there have been so many shocking cases of grossly illegitimate forensic evidence and expert testimony?

I Ratant

27th February 2009, 08:32 PM

I said I would only chose a trial by jury if I was guilty.
.
One of Slippery Richard's Attorney Generals (Ed Meese) said that only guilty people get arrested. :)

Kevin_Lowe

28th February 2009, 01:54 AM

Send him to prison on what charge? Trespassing?

Trespassing and breaking and entering sound about right. If they falsely represented themselves as acting in their official capacity while doing so harsher penalties for acting under colour of authority should apply.

What if he believed he was correct but was mistaken? What if the sheriff ordered the deputy to do it? Is it trespassing to think you are doing your job? Do we want law enforcement people and even judges issuing warrants to face prison because it to the Supreme Court to figure out if it was reasonable? It just won't work.

You'll have to explain more clearly what you think the problem is, and why the usual legal rules about getting people to break the law on your behalf, or convincing a patsy to do so, shouldn't apply.

How hard it is it for people who are supposed to enforce the law not to break it?

Besides, you're missing the bigger picture here. It's not about an individual (the cop) violating someone's property rights. It's the government violating the constitution. If you jail individuals, the government is getting off free and clear. You are in effect permitting the government to ignore its own rules.

The government is just a collection of people, and we're just jailing the people who break the law. I don't see any problem.

If you don't exclude the evidence, what's the point of having the amendment in the first place?

So that the government can't pass laws to make it legal to do it, of course.

There are two problems here. First, that's how negative rights work. To say you don't have a right to be free from x, you only have a right to consequence y if x happens - how else could it work? Having the right to be free from unreasonable search doesn't mean it will never happen (although it normally doesn't happen, thanks to the Exclusionary Rule) - it means if it does happen, there is some remedy.

If "consequence Y" is just that they can't arrest you using evidence they found while invading your privacy, that's a really pathetic consequence. I don't own anything you could charge me over because I don't break the law, so if the police got bored one day and tore my house apart the fact that they couldn't use anything they found as evidence would make no damn difference to me.

Whereas if they could be jailed for a few years for trespassing, breaking and entering and whatnot, that's a pretty decent consequence. I'd say that I have a right not to have my stuff rifled through, if the consequence of anybody doing so is a year or three in the clink.

Second you absolutely do have a right to not have a police officer rifle through your personal possessions if they feel like it. You can vindicate your right in the way that persons normally vindicate their rights - by suing. The Exclusionary Rule does not supplant such a lawsuit (known as a Section 1983 suit). The Exclusionary Rule supplements the Section 1983 remedy, based in part on a recognition that Section 1983 suits are not sufficient deterrent to police misconduct.

Suing anyone with a union defence fund is not a useful recourse to anyone without tens of thousands of dollars they can afford to gamble on a lawsuit, so it's not a realistic deterrent. That's why criminal charges should apply.

Not to take away from your criticism of the system, but I kind of think that if this had been engineered by money-grubbing lawyers, criminal prosecution and defense would be high-paying jobs, which they are, for the most part, not.

They aren't high paying jobs, because there are limits to how much blood they can suck out of the system, but they are high volume jobs that support a ridiculous biomass of lawyers compared to the number of them that find a living in Continental countries. They are also the fast track to the cushy job of being a judge, where the real money is.

BPSCG

28th February 2009, 04:06 AM

.
One of Slippery Richard's Attorney Generals (Ed Meese) said that only guilty people get arrested. :)I would love to see a link to the evidence that Meese ever said anything like that, in its full context.

:bs:

Uncayimmy

28th February 2009, 08:46 AM

Trespassing and breaking and entering sound about right. If they falsely represented themselves as acting in their official capacity while doing so harsher penalties for acting under colour of authority should apply.
That's already a crime.

You'll have to explain more clearly what you think the problem is, and why the usual legal rules about getting people to break the law on your behalf, or convincing a patsy to do so, shouldn't apply.

How hard it is it for people who are supposed to enforce the law not to break it?
Go read some court rulings regarding search and seizure. You'll learn just how difficult it can be. More often than not you cannot get all of the justices to agree on what is reasonable.

The government is just a collection of people, and we're just jailing the people who break the law. I don't see any problem.
And yet you want to single out one person for punishment rather than the collection of people.

We have a punishment in place. The "penalty" for not following the constitution is that we make it harder to get a conviction. This encourages officers to act with proper diligence.

Besides, if an officer gets a warrant to search a home for a murder weapon and discovers a stack of child porn, what crime has the officer committed? None. However, according to US law, that evidence could not be used to charge the owner with a crime because the warrant. The only remedy is to not allow it to be used.

So that the government can't pass laws to make it legal to do it, of course.
And also that the government can't do it, period. You see, a "law" is already in place in the form of a constitution. The government can't do it. If they do, what's the remedy? Look at the other amendments for guidance. If the government houses a soldier in your home, who do you arrest and charge with a crime?

If "consequence Y" is just that they can't arrest you using evidence they found while invading your privacy, that's a really pathetic consequence.
It's been quite effective, actually.

I don't own anything you could charge me over because I don't break the law, so if the police got bored one day and tore my house apart the fact that they couldn't use anything they found as evidence would make no damn difference to me.
Fortunately, your willingness to not take advantage of the constitution doesn't mean anybody else has to. Let's just hope that your buddy from college who spent a weekend at your house didn't happen to leave a baggie of crack laying around or download some kiddie porn while he was checking his e-mail.

Whereas if they could be jailed for a few years for trespassing, breaking and entering and whatnot, that's a pretty decent consequence. I'd say that I have a right not to have my stuff rifled through, if the consequence of anybody doing so is a year or three in the clink.
Your continued misunderstanding of the situation doesn't make you right. Pretending a complex issue is simple doesn't mean your simple solution is correct.

I Ratant

28th February 2009, 09:22 AM

I would love to see a link to the evidence that Meese ever said anything like that, in its full context.

:bs:
.
The memory fails..
But this is pretty close.. Note the bit on Miranda.
http://cultronix.eserver.org/califia/meese/

balrog666

28th February 2009, 11:05 AM

Some of you are talking about criminal trials, and that is okay!

Does anyone think there would be a difference in the appropriateness of jury questions, between civil and criminal trials?

That's good to know, if any of us ever find ourselves on your jury. ;)

It was possible incompetence by one of the lawyers that lead to one of my biggest questions. His answer could have potentially saved part of his own case.

That was from Ambrose Bierce's "Devil's Dictionary". ;)

I've been called for jury duty 4-5 times and actually got to serve once. I had no doubt that I could have done a better job of asking the questions but at least half of the other jurors had no idea what was going on anyway. :rolleyes:

OTOH, I've been sued a few times and the whole point of our trial strategy was to not to confuse them with facts they couldn't understand just to keep them from doing something incredibly stupid.

.

Kevin_Lowe

28th February 2009, 03:33 PM

That's already a crime.

Up to this point everyone agreed that if police searched your stuff without a warrant while it was a crime, they wouldn't actually be charged, let alone convicted. If you want to argue that they will you will need some evidence.

Go read some court rulings regarding search and seizure. You'll learn just how difficult it can be. More often than not you cannot get all of the justices to agree on what is reasonable.

"Go read some stuff" is not an argument. In any case the fact that laws are currently fuzzy can be remedied, and police can in practise still go well past that fuzzy boundary without being charged.

And yet you want to single out one person for punishment rather than the collection of people.

Absolutely, that's how laws against corruption work. Like I said, I don't see a problem.

I think the reason you see a problem is that you've bought into a fallacy-of-composition argument, where you try to smoosh together the individual police officer with the whole justice system. They just aren't the same thing.

We have a punishment in place. The "penalty" for not following the constitution is that we make it harder to get a conviction. This encourages officers to act with proper diligence.

Until you respond to the points I made as to why this is an inadequate and counterproductive "penalty" I'll consider that argument done with.

Besides, if an officer gets a warrant to search a home for a murder weapon and discovers a stack of child porn, what crime has the officer committed? None. However, according to US law, that evidence could not be used to charge the owner with a crime because the warrant. The only remedy is to not allow it to be used.

Sorry, why do we need or want a "remedy" in this case?

(There have been extensive arguments on this board already about whether mere possession of child pornography should be an offence. Regardless of where you fall on that debate, in the general case of an officer legitimately investigating Crime X and finding evidence of Crime Y I don't see any reason whatsoever not to punish the offender).

And also that the government can't do it, period. You see, a "law" is already in place in the form of a constitution. The government can't do it. If they do, what's the remedy? Look at the other amendments for guidance. If the government houses a soldier in your home, who do you arrest and charge with a crime?

Assuming the Constitution has any force, under my preferred system you say to the soldier "Get out". Then you arrest the soldier for trespassing, and arrest them and anyone else who tries to interfere with the process of removing and charging the soldier.

It's been quite effective, actually.

Argument by blatant assertion, zero points.

Fortunately, your willingness to not take advantage of the constitution doesn't mean anybody else has to. Let's just hope that your buddy from college who spent a weekend at your house didn't happen to leave a baggie of crack laying around or download some kiddie porn while he was checking his e-mail.

I've always found this argument baffling on a couple of levels. Firstly I just don't see why a rational person wants the legal system hobbled just on the off-chance they are falsely accused of a crime. As long as the courts stick to their stated ideal of convicting only on evidence beyond reasonable doubt (and they don't, but that's a different problem the legal system ought to address and does not) I don't care if a visitor leaves crack behind.

More importantly, the examples used are always of crimes that in my humble opinion
shouldn't be crimes in the first place, like crimes of mere possession. So I see it as an argument saying "The legal system is abused in case X, therefore as a remedy we must break it across the board". The solution is to get rid of crimes of mere possession so the police would have to catch me selling the crack or kiddy porn to charge me - I'm very certain they won't do so because I don't do either of those things.

Your continued misunderstanding of the situation doesn't make you right. Pretending a complex issue is simple doesn't mean your simple solution is correct.

No argumentative content, zero points.

Fredrik

28th February 2009, 05:19 PM

Send him to prison on what charge? Trespassing?

The same charge that you would have to deal with if you break into someone's house and search through their stuff.

What if he believed he was correct but was mistaken?

Obviously not relevant in this case.

What if the sheriff ordered the deputy to do it?

Same thing as if the sheriff orders the deputy to do something else that's illegal, e.g. steal a car or kill someone. The deputy doesn't have the right to do anything illegal just because he's ordered to, and it should be possible (in some cases at least) to prosecute the sheriff for giving the order, even if the deputy didn't obey it.

Is it trespassing to think you are doing your job?

It's not a policeman's job to break into people's houses without a warrant. He wouldn't think he's "doing his job". He might think he's doing something "good", but that doesn't get anyone else off the hook when they break the law, so why should it matter in this case?

Do we want law enforcement people and even judges issuing warrants to face prison because it to the Supreme Court to figure out if it was reasonable?

This is a much more interesting question. I didn't even think about the (now obvious) fact that if we punish the cops who do something without a warrant, we should also punish judges who issue false warrants. Also, who's responsible if the judge issues a warrant based on false information supplied by the police? These are serious problems, but I'm not convinced they can't be solved.

Besides, you're missing the bigger picture here. It's not about an individual (the cop) violating someone's property rights. It's the government violating the constitution. If you jail individuals, the government is getting off free and clear. You are in effect permitting the government to ignore its own rules.

I don't follow your reasoning here at all. If the government makes sure that it's illegal to violate a person's rights and that those who break the laws are prosecuted and punished, then how is this a case of "the government violating the constitution"? And how is the government not "getting off free and clear" under the current system? E.g. if a cop makes an illegal search, then how is the government punished when the criminal doesn't get convicted?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Unless, of course, the person did something we later found to be illegal.

It wouldn't make any sense to let the cop (or judge of whatever) off the hook just because his crime was successful.

I don't understand the text you quoted (but I verified that the quote is correct). What does "and no warrants shall issue" mean? The first part is clear: Your rights shouldn't be violated. But I don't understand the rest. Does it even make sense?

If you don't exclude the evidence, what's the point of having the amendment in the first place?
The amendment (or at least the part of it that I understand) says that people should be protected from unreasonable searches and that kind of stuff. It doesn't say how they should be protected. I don't think excluding the evidence is a more effective way to protect the people than punishing the ones who violate people's rights.

Wowbagger

28th February 2009, 06:00 PM

If you don't mind, I'd like to keep this thread on topic of jury questions.

The police-search topic is fascinating enough, that you could probably start a separate thread on it.

Thanks!

NoZed Avenger

28th February 2009, 06:10 PM

Uncayimmy

28th February 2009, 07:05 PM

The same charge that you would have to deal with if you break into someone's house and search through their stuff.
Except that it's not the same. You can insist it is, but it's not. And you're talking one very specific type of incident. What if the warrant says they can search the house for a murder weapon and find a stack of kiddie porn while they are there. What law has the officer broken? None.

Same thing as if the sheriff orders the deputy to do something else that's illegal, e.g. steal a car or kill someone. The deputy doesn't have the right to do anything illegal just because he's ordered to, and it should be possible (in some cases at least) to prosecute the sheriff for giving the order, even if the deputy didn't obey it.
So, you say cops should have to worry about facing prosecution whenever they make a judgment of reasonable cause?

It's not a policeman's job to break into people's houses without a warrant.
Except, of course, when it is not only permitted but expected.

This is a much more interesting question. I didn't even think about the (now obvious) fact that if we punish the cops who do something without a warrant, we should also punish judges who issue false warrants. Also, who's responsible if the judge issues a warrant based on false information supplied by the police? These are serious problems, but I'm not convinced they can't be solved.
The first and most productive step is excluding the evidence from trial. The counterargument is to allow the state to use the evidence but punish the agents working on behalf of the state. But as I outlined in my first response, sometimes no crime at all has been committed. And as I keep saying, cops are agents of the state. What if you replace cops with robots? Or, as in real life, FLIR?

I don't follow your reasoning here at all. If the government makes sure that it's illegal to violate a person's rights and that those who break the laws are prosecuted and punished, then how is this a case of "the government violating the constitution"? And how is the government not "getting off free and clear" under the current system? E.g. if a cop makes an illegal search, then how is the government punished when the criminal doesn't get convicted?
The government, not individuals, prosecutes criminal cases. The constitution is in place to keep the government, not individuals, in check. People are just agents for the government.

The fourth amendment doesn't constrain me from breaking into your house and searching it. Local laws do, but not the constitution. Likewise, as a bar owner I can demand that shut up, surrender your gun, and submit to a search before entering my establishment. The constitution doesn't constrain me from doing that.

It wouldn't make any sense to let the cop (or judge of whatever) off the hook just because his crime was successful.
It's the government that is being let off the hook. The government is constrained by the constitution. Cops are simply agents.

I don't understand the text you quoted (but I verified that the quote is correct). What does "and no warrants shall issue" mean? The first part is clear: Your rights shouldn't be violated. But I don't understand the rest. Does it even make sense?
It has made sense for a few hundred years as the Fourth Amendment. It means that judges cannot issue warrants without probable cause. It also means the warrants need to be specific. This comes from an era of general warrants where a judge without even an inkling that a crime had been committed, could issue a warrant to allow the cops to ransack your house looking for some evidence of a crime - any crime.

The amendment (or at least the part of it that I understand) says that people should be protected from unreasonable searches and that kind of stuff. It doesn't say how they should be protected. I don't think excluding the evidence is a more effective way to protect the people than punishing the ones who violate people's rights.
It actually doesn't say what you just said. It says that what the government can and cannot do. If the government does what it is not allowed to do, the most obvious remedy is to try to bring the situation to where it should have been had they NOT done what it was they weren't supposed to do.

So, if the police seize evidence from my home, I should get it back. It makes no sense to lock up the cop and let the government keep the evidence to bring to my trial. It's MY stuff, not theirs.

"To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the exclusionary rule."

See Weeks v United States (1914).

Suddenly

2nd March 2009, 07:30 AM

Lawyers do have an extensive mythology they use to justify their takeover of the criminal courtroom. If you believed everything they say, there are very good, public-spirited reasons for absolutely every procedural rule that turns the adversarial court system into a game played for the profit of lawyers rather than a process designed to find the best evidence-based conclusions.

I'm pretty sure I'm not doing this to get rich, but I guess that can be dismissed as a lie told in furtherence of the conspiracy that makes me almost as much money as most coal miners I know. The vast majority of lawyers practicing criminal law aren't paid that well, and many lawyers do cases for free as a form of public service, they make all their money in non-criminal cases.

The problems in the system are largely political in nature as has been reflected in my other post in this thread, and unless you want to claim the whole political system is controlled by the illumin... I mean lawyers practicing criminal law, well...

If you want to argue that the civil system is largely ran in a way to enrich attorneys, you would have a point and something I couldn't disagree with very much. As applies to criminal law, you are in orbit around Pluto. There are problems, but they aren't making anyone rich. This is mostly because the vast majority of criminal defendants don't have two nickels to bang together. Most of us are not paid by the hour and have no reason to make things complicated. Most of those that do barely cover office overhead with the meager amounts the state pays those assigned to indigent defense.

Unfortunately there's always the example of the Continental, inquisitorial model where the defence lawyers are mostly on the sidelines where they belong, the judge and jury act as investigators of fact, and (it's reasonable to assume) verdicts are more likely to be based on the facts that procedural maneuvering or professional spin.
As reflected in an earlier post, I am in favor of such a model. However, given the specific guarantees in the constitution such a system is not practical here. The right to remain silent alone makes this unworkable.

Again, a claim that lawyers themselves are what is blocking something like this is silly. It is a purely political issue, and nobody here who votes sees this as worth bothering about given American attitudes about punishment. A lot of things regarding American attitudes about crime and punishment would have to change for such a system to be practical.

Our system is designed mostly with the defense of political criminals in mind, and this is why the constitution has such aggressive pro-defendant language. It was written in a world where people were more concerned with a runaway government than common criminals. Given how the Crown was treating people in the colonies, this was a pretty valid concern.

This (http://tarlton.law.utexas.edu/lpop/etext/okla/selinger22.htm) is a good article from a former professor of mine about these issues and how a continental system when dealing with common criminal matters would serve our interests better. However, it would require wholesale changes that most people in America are unlikely to agree with.

The simple fact is a legal system doesn't need the elaborate array of defence escape hatches we are currently stuck with to work. That's just a fiction lawyers came up with to justify the existence and use of those escape hatches in exchange for money.

It is pretty simple. The state can't break the law in order to put you in jail. Even if we disregard all of the detering police misconduct and such, this is still a rather responsible viewpoint for anyone more worried about the power of government than the danger of criminal behavour.

As the article cited above states:

...it seems likely that we are going to continue as a society to maintain only a single system for all criminal cases. We seem to be faced with a choice--a choice between a system that superbly protects our political and civil rights or a system that would deal more sensibly with ordinary crime.

That you disagree with that is one thing, but deciding that everyone involved is corrupt based on that disagreement does not speak well of one's character.

JohnnyG

2nd March 2009, 07:50 AM

I think a system where we could submit anonymous, written questions would be nice. The judge would rule if each question was legally appropriate, before submitting them to the parties. And, of course, each party would be given a fair and reasonable amount of time to prepare their answers.

I sat on a criminal jury last year and this is how it worked...
After the testimony and cross examination for each person on the stand had ended, but before they were excused, each member of the jury would write down any questions for that person on a piece of paper. If we had no questions we were to write something on the paper anyway, to avoid identifitying the source of any quesion. The papers were collected and handed to the judge who would review them, revise them if needed to be legally appropriate, and ask them.
I thought it was a great way to handle it. I don't like letting each side have a "fair and reasonable" amount of time to prepare answers, then you don't see the persons reaction to hearing the question for the first time, which can be more valuable than their actual answer.

Suddenly

2nd March 2009, 07:52 AM

That

Besides, if an officer gets a warrant to search a home for a murder weapon and discovers a stack of child porn, what crime has the officer committed? None. However, according to US law, that evidence could not be used to charge the owner with a crime because the warrant. The only remedy is to not allow it to be used.

This is incorrect. As long as the evidence is found while the officer is looking for the murder weapon the evidence can be used. This is called the "plain sight" doctrine. If an officer is in a place he is legally entitled to be (such as in a house looking for a murder weapon), any other evidence he sees that is obviously contraband can be admitted.

However, if the warrant is to search for a person and the officer looks into a small box and finds the stuff... no dice unless he can convince a judge that the guy he's looking for could have been in there. He is not entitled to look for anything but the guy.

These laws allowing for suppression are quite narrowly drawn by the courts. There are a ton of exceptions to the warrant requirement. Complicated, but narrow.

(plus, a lot of the problems when dealing with warrants come from judges making the warrants not specific enough. Off to jail with them as well!!!)

BPSCG

2nd March 2009, 08:13 AM

.
The memory fails..
But this is pretty close.. Note the bit on Miranda.
http://cultronix.eserver.org/califia/meese/
Emphasis mine. Actually, your citation fails. I googled, "Miranda only helps guilty defendants," and came up with nothing more than second-hand references to the alleged quote. One of them (apparently a Time magazine opinion piece) says he said it in an interview with US News and World Report, but curiously, there's no link of that alleged quote to any US News site. I broadened the search to simply the words "Miranda guilty defendants Meese" (leaving out the quotation marks), and still couldn't find an original source for the alleged quote.

So to sum up:

You: "One of Slippery Richard's Attorney Generals (Ed Meese) said that only guilty people get arrested. :) "

Me: "I would love to see a link to the evidence that Meese ever said anything like that, in its full context."

You:"...this is pretty close.. Note the bit on Miranda." This statement was not reassuring, coming from a man who thinks the Supreme Court should not compel the states to abide by the Bill of Rights, a man who has said, "Miranda only helps guilty defendants. Most innocent people are glad to talk to the police."

An obviously biased source making a second-or-third-hand claim, providing no context.

NoZed Avenger

2nd March 2009, 09:08 AM

Personally I believe the jury system is deeply flawed, because your average person is woefully ignorant of the legal process and generally incapable of skeptical objective reasoning.

I absolutely disagree.

Having done jury work now for going on 14 years, I am more impressed with the system now than I was coming out of law school. Juries are not perfect, and you can get bad jurors. Having said that, the collective intelligence and memory of 12 people working together is pretty impressive. Collectively, they are far smarter and have a better memory than any one of them together. I am continually amazed at some of the subtleties that they jury picks up on.

An older study using complex commercial cases from the early nineties (going by memory, I have no idea where to find it at the moment) compared jury results with the opinions of judges who had many years of experience in such matters. The cases were chosen because they were some of the most complex (factually and legally) that could be found. The results showed that the juries -- untrained, lay juries with no particular expertise -- fully agreed with the judges' private opinion on the case (same winner, within a few percentage points on any verdict) over 92% of the time. They agreed with the judge on the proper party, but disagreed with the money awarded another 4-5% of the time.

JamesDillon

2nd March 2009, 09:43 AM

An older study using complex commercial cases from the early nineties (going by memory, I have no idea where to find it at the moment) compared jury results with the opinions of judges who had many years of experience in such matters. The cases were chosen because they were some of the most complex (factually and legally) that could be found. The results showed that the juries -- untrained, lay juries with no particular expertise -- fully agreed with the judges' private opinion on the case (same winner, within a few percentage points on any verdict) over 92% of the time. They agreed with the judge on the proper party, but disagreed with the money awarded another 4-5% of the time.

Ok, but which is better? Your example seems to suggest either that 1) juries are unnecessary and inefficient because judges would get it right most of the time (if we assume that juries always reach the correct outcome); or 2) that juries are inefficient and deleterious to the process because they consume more resources than a bench trial and reach the wrong outcome more often (if we assume the 8% divergence in favor of judges).

It seems to me that the only real justification for continuing the jury process is not that juries are more likely to reach the legally or factually correct outcome than a judge sitting alone would be, but that the jury system provides a demotic additional check in the rare cases where a strict application of the law to the facts would deviate substantially from community values-- i.e., where jury nullification is arguably a good thing. Whether those rare cases are worth preserving the expensive and intrusive jury process, I'm really not sure.

NoZed Avenger

2nd March 2009, 10:35 AM

Ok, but which is better? Your example seems to suggest either that 1) juries are unnecessary and inefficient because judges would get it right most of the time (if we assume that juries always reach the correct outcome); or 2) that juries are inefficient and deleterious to the process because they consume more resources than a bench trial and reach the wrong outcome more often (if we assume the 8% divergence in favor of judges).

I was originally speaking fairly narrowly to the perception -- in some cases, presumption -- that juries are not capable of making complex decisions correctly.

I think the jury system provides a number of benefits outside the question of accuracy, however. It provides a check on the power or ability of a single judge to use his or her personal bias; it helps "vest" people in the court system by giving them a method of participation; it helps people become more familiar with the system, which can be arcane at times; and it helps with the perception of fairness. In general, it is my belief (from my personal experience) people are more satisfied when their peers have heard and decided the issue, as opposed to an arbiter or judge. They have more faith in the system and have less a sense that the system is rigged as long as "ordinary people" are the decision-makers.

Uncayimmy

2nd March 2009, 10:51 AM

This is incorrect. As long as the evidence is found while the officer is looking for the murder weapon the evidence can be used. This is called the "plain sight" doctrine. If an officer is in a place he is legally entitled to be (such as in a house looking for a murder weapon), any other evidence he sees that is obviously contraband can be admitted.

However, if the warrant is to search for a person and the officer looks into a small box and finds the stuff... no dice unless he can convince a judge that the guy he's looking for could have been in there. He is not entitled to look for anything but the guy.

These laws allowing for suppression are quite narrowly drawn by the courts. There are a ton of exceptions to the warrant requirement. Complicated, but narrow.

(plus, a lot of the problems when dealing with warrants come from judges making the warrants not specific enough. Off to jail with them as well!!!)

It's Plain View, not Plain Sight Doctrine. My example was not the best, but my larger point still stands. There are situations where a lawfully executed search can result in seizing evidence that should not have been seized. For what crime could a cop be prosecuted in that case?

Suddenly

2nd March 2009, 01:58 PM

It's Plain View, not Plain Sight Doctrine. My example was not the best, but my larger point still stands. There are situations where a lawfully executed search can result in seizing evidence that should not have been seized. For what crime could a cop be prosecuted in that case?

The last question brings up a red herring. A simple statute making criminal the violation of constitutional right would suffice. Of course that brings about deeper problems...

The issue that you seem to be hitting around but not nailing down is that criminal law as we know it is made up of judge based doctrines that are not definite in advance. Even today there are actions an officer might take that nobody can say for sure are legal or illegal. Different jurisdictions often have different rules about the same thing.

As such, it fails the requirement that criminal law be definite and specific about what it makes criminal. Sure, there are some criminal laws that have some gray areas that are later hammered out, but the constitution prohibits "unreasonable" search and seizure. That is as vague as it gets.

Plus there is the rule of lenity that requires all ambiguity resolved in favor of a criminal defendant, and we can imagine a world where the constitution is held to only prohibit acts that are unambiguously "unreasonable." No thanks.

Sure, we as we stand here today have a lot of caselaw that interprets what "unreasonable" means, but that came about by criminal defendants seeking to have evidence supressed. A court then isn't bound by lenity, and can give the most weight to the rights of those the constiution is meant to protect rather than those who would seek to violate it.

Yet another point in favor of the exclusionary rule....

gumboot

2nd March 2009, 03:25 PM

dudalb

2nd March 2009, 05:23 PM

I guess that Kevin Lowe, with his worship of the continental legal system, has a problem with the English common law "A man is innocent until proven guilty" concept.
I think that Kevin just does not like lawyers, period.

dudalb

2nd March 2009, 05:34 PM

I was originally speaking fairly narrowly to the perception -- in some cases, presumption -- that juries are not capable of making complex decisions correctly.

I think the jury system provides a number of benefits outside the question of accuracy, however. It provides a check on the power or ability of a single judge to use his or her personal bias; it helps "vest" people in the court system by giving them a method of participation; it helps people become more familiar with the system, which can be arcane at times; and it helps with the perception of fairness. In general, it is my belief (from my personal experience) people are more satisfied when their peers have heard and decided the issue, as opposed to an arbiter or judge. They have more faith in the system and have less a sense that the system is rigged as long as "ordinary people" are the decision-makers.

To paraphrase Churchill, The Jury System is the worst way of making legal judgements, except for all the others.

Kevin_Lowe

2nd March 2009, 08:20 PM

I'm pretty sure I'm not doing this to get rich, but I guess that can be dismissed as a lie told in furtherence of the conspiracy that makes me almost as much money as most coal miners I know. The vast majority of lawyers practicing criminal law aren't paid that well, and many lawyers do cases for free as a form of public service, they make all their money in non-criminal cases.

I never said public defence lawyers as individuals were highly paid. That's your straw man. However our legal system supports swarms of them, and their collective salaries do add up to a huge burden on the public purse.

The problems in the system are largely political in nature as has been reflected in my other post in this thread, and unless you want to claim the whole political system is controlled by the illumin... I mean lawyers practicing criminal law, well...

On the contrary, most of the really egregious legal artifacts are the product of lawyers making rules for lawyers, via the judicial system.

If you want to argue that the civil system is largely ran in a way to enrich attorneys, you would have a point and something I couldn't disagree with very much. As applies to criminal law, you are in orbit around Pluto. There are problems, but they aren't making anyone rich. This is mostly because the vast majority of criminal defendants don't have two nickels to bang together. Most of us are not paid by the hour and have no reason to make things complicated. Most of those that do barely cover office overhead with the meager amounts the state pays those assigned to indigent defense.

Again you are engaging with the straw man argument that defence lawyers are all rich. They aren't rich, we just have far too many of them.

As reflected in an earlier post, I am in favor of such a model. However, given the specific guarantees in the constitution such a system is not practical here. The right to remain silent alone makes this unworkable.

The right to remain silent is indeed a daft rule, but we could work around it.

Again, a claim that lawyers themselves are what is blocking something like this is silly. It is a purely political issue, and nobody here who votes sees this as worth bothering about given American attitudes about punishment. A lot of things regarding American attitudes about crime and punishment would have to change for such a system to be practical.

I'd say that lawyers do indeed to their best to block any reform that would eat into their breadbasket. In fact arguably you're doing that right now, by presenting the usual arguments in favour of the status quo.

It is pretty simple. The state can't break the law in order to put you in jail. Even if we disregard all of the detering police misconduct and such, this is still a rather responsible viewpoint for anyone more worried about the power of government than the danger of criminal behavour.

Once again this is simply the fallacy of composition. The government is an abstract idea. It's not a Hobbes-like Leviathan in anything other than a metaphorical sense.

Once you start with the dumb assumption that Joe Plod is Parliament you can reason yourself into all sorts of strange places. Best not to even start.

That you disagree with that is one thing, but deciding that everyone involved is corrupt based on that disagreement does not speak well of one's character.

So it's just an amazing coincidence that this system supports vast numbers of lawyers who would otherwise be superfluous?

I wouldn't so much say that everyone involved is corrupt. I'd say that everyone involved is a member of a profession whose stock in trade is making up plausible-sounding, or even noble-sounding, arguments for absolutely whatever position their client wants them to take, and that I don't think that this valuable professional skill falls by the wayside the minute lawyers are called upon to defend their role and their salary.

NoZed Avenger

2nd March 2009, 08:44 PM

I'd say that lawyers do indeed to their best to block any reform that would eat into their breadbasket. In fact you're doing that right now, by trying to pour cold water on the idea that we would be much better off under alternative systems with far fewer defence lawyers doing far less.

This is pretty egregious poisoning the well, and is (from my past reading of Suddenly's posts) entirely unjustified.

Personally, I -- even as an attorney -- am not convinced that the exclusionary rule, for one example, is the best way of handling potential police misconduct. However, the arguments supporting it are not trivial and do merit a fair amount of thought -- not an instant dismissal and seemingly endless disdain.

Arguments may also be made for the continental system of jurisprudence. I am far less convinced that a judge-based system is the way to go, partly because the potential misuses of power would seem to be both easier and more far reaching. I am much less inclined to listen to any arguments for it, however, if my mere profession is going to have me called names and my motives questioned before I have even started.

quixotecoyote

2nd March 2009, 08:45 PM

NoZed Avenger

2nd March 2009, 08:46 PM

I wouldn't so much say that everyone involved is corrupt. I'd say that everyone involved is a member of a profession whose stock in trade is making up plausible-sounding, or even noble-sounding, arguments for absolutely whatever position their client wants them to take, and that I don't think that this valuable professional skill falls by the wayside the minute lawyers are called upon to defend their role and their salary.

Oh, well as long as we aren't all corrupt, then, and simply willing to lie, manipulate, and use our position for illicit gain.

Whew. That's a relief. For a moment, I thought you might tar an entire group of people with an ugly, unfair brush and poison the well against all their arguments by calling their integrity into question before they had even had a chance to defend themselves.

gumboot

2nd March 2009, 09:59 PM

Kevin Lowe appears to have his entire argument completely backwards. The Adversarial system primarily uses a jury of laymen to determine guilt, and the presence of lawyers and laws of evidence are in place because of the jury.

In contrast, in an Inquisitorial System there is usually no jury, and those determining guilt are legal experts thus do not require representative lawyers and are not likely to be swayed by inadmissible evidence.

Further, in an Inquisitorial System the Tribunal or bench is commonly comprised of lawyers, so in reality this system gives more power to lawyers as they get to determine guilt and innocence, not the jury.

The fundamental principle of an Adversarial System is that an impartial jury hear both cases and determine guilt. The rules of procedure are a byproduct of this system, not the reason for its existence.

Assuming you see flaws in the procedures that's absolutely no reason to reject the entire system.

For example, in adversarial systems hearsay is not permitted. Not such ban exists in most inquisitorial systems.

The reasoning is that while a legal expert can distinguish hearsay and ignore it, a jury are less likely to be capable of doing this. Thus you're simply not allowed to bring it up.

Likewise with regards to chain of custody and other handling procedures for evidence, while a legal professional can cut through the various details and determine the evidence's validity, a jury may not be as capable of doing this, and thus may accept the evidence when they should reject it.

The end result is that in a system with a jury, more effort is made to cull the important information from the noise, to make things clearer. When there's no jury everything can be thrown at the tribunal and they'll have to sort through and decide what is relevant and what isn't.

ImaginalDisc

2nd March 2009, 10:09 PM

Most states allow this. It's up to the judge.

The biggest objection to allowing jury questions is that it might tend to disrupt the fairness of the trial.

Take a look at this article on jury questions in Florida. (http://www.sptimes.com/2008/01/04/State/Change_lets_jurors_su.shtml)

From the article:
"I think it will be terrible," said Clearwater defense attorney David Parry.
Emphasis added.

I suspect I know why he says that.

Kevin_Lowe

3rd March 2009, 01:15 AM

Oh, well as long as we aren't all corrupt, then, and simply willing to lie, manipulate, and use our position for illicit gain.

Whew. That's a relief. For a moment, I thought you might tar an entire group of people with an ugly, unfair brush and poison the well against all their arguments by calling their integrity into question before they had even had a chance to defend themselves.

I realised that section went overboard, and edited it, but not before a few people jumped on it. So it goes. I acknowledge it was not the right thing to say and apologise. Now I encourage you all to respond to everything else in my post other than the low-hanging fruit.

Kevin Lowe appears to have his entire argument completely backwards. The Adversarial system primarily uses a jury of laymen to determine guilt, and the presence of lawyers and laws of evidence are in place because of the jury.

In contrast, in an Inquisitorial System there is usually no jury, and those determining guilt are legal experts thus do not require representative lawyers and are not likely to be swayed by inadmissible evidence.

Further, in an Inquisitorial System the Tribunal or bench is commonly comprised of lawyers, so in reality this system gives more power to lawyers as they get to determine guilt and innocence, not the jury.

Actually in serious cases there is usually a jury of laypeople in every system I've read about.

It looks like you are also under the impression that in inquisitorial systems the judges are all ex-lawyers. That's not at all the case, although they certainly can be.

Perhaps most importantly, on the question of power, how much power does a judge have in determining someone's sentence? Quite a lot. How much power does a scientist have weighing a sample? If they do their job competently, none whatsoever.

In an inquisitorial system, where the lawyers are engaged strictly in assisting the search for the legally and factually correct outcome rather than operating with a license to use every trick in the book to get a jury to return the verdict they want, lawyers have much less power. A defence lawyer is much less necessary when the prosecution is obliged to seek the truth, and the defence is not allowed to attempt to hide it.

The fundamental principle of an Adversarial System is that an impartial jury hear both cases and determine guilt. The rules of procedure are a byproduct of this system, not the reason for its existence.

Assuming you see flaws in the procedures that's absolutely no reason to reject the entire system.

For example, in adversarial systems hearsay is not permitted. Not such ban exists in most inquisitorial systems.

The reasoning is that while a legal expert can distinguish hearsay and ignore it, a jury are less likely to be capable of doing this. Thus you're simply not allowed to bring it up.

Likewise with regards to chain of custody and other handling procedures for evidence, while a legal professional can cut through the various details and determine the evidence's validity, a jury may not be as capable of doing this, and thus may accept the evidence when they should reject it.

The end result is that in a system with a jury, more effort is made to cull the important information from the noise, to make things clearer. When there's no jury everything can be thrown at the tribunal and they'll have to sort through and decide what is relevant and what isn't.

Thank you for articulating the standard story. Jurors are smart enough to be treated as nigh-infallible in judgements of fact, but dumb enough that they can only attain this infallibility if procedural rules, strictly adhered to, govern whether or not they are allowed to see all the relevant and available evidence.

I imagine this is the same thinking behind the rules against taking notes in some courtrooms. Jurors are smart enough to reach the right decision almost every time if they are only allowed to rely on their memories and the statements of advocates, but dumb enough that they would confuse themselves if they took their own notes or asked their own questions.

Yet the Continental system uses lay jurors, does not hide evidence from them, and works.

Suddenly

3rd March 2009, 07:22 AM

I never said public defence lawyers as individuals were highly paid. That's your straw man. However our legal system supports swarms of them, and their collective salaries do add up to a huge burden on the public purse.
When you claim our motivation for our conspiracy is money, you imply that we are, you know, making some. Unless you are now shifting the conspiracy to our wanting to drain the public purse in total even though it makes us little money as individuals... which is insane on its face.

I'd say that lawyers do indeed to their best to block any reform that would eat into their breadbasket. In fact arguably you're doing that right now, by presenting the usual arguments in favour of the status quo.

Considering I am a critic of the status quo and laying out reasons why changing the status quo would be almost impossible in America as a practical sense, you make no sense here.
Once again this is simply the fallacy of composition. The government is an abstract idea. It's not a Hobbes-like Leviathan in anything other than a metaphorical sense.

Abstract ideas don't put people in jail. They don't cause famines in the Ukraine. People acting in the name of this abstract idea do this. People that need to be kept in line as history is pretty clear that a government that does not repect the rule of law is a monsterous danger.

So it's just an amazing coincidence that this system supports vast numbers of lawyers who would otherwise be superfluous?

Now we are getting to the realm of standard conspiracy theory. You ignore the historical factors that have led to the English common law tradition and the adversarial system and simply frame an effect you don't like as a cause.

This is more or less an post hoc ergo propter hoc fallacy.

Even so it is largely based on questionable factual assumptions when considering only the criminal justice system. The reduction of criminal defense lawyers were the system to be changed would probably in the big picture be near negligible in my opinion. If anything, it would reduce the caseload of most public defenders to a more managable level.

I wouldn't so much say that everyone involved is corrupt. I'd say that everyone involved is a member of a profession whose stock in trade is making up plausible-sounding, or even noble-sounding, arguments for absolutely whatever position their client wants them to take, and that I don't think that this valuable professional skill falls by the wayside the minute lawyers are called upon to defend their role and their salary.

So... we are at least all unthinkingly corrupt?

It doesn't take much modification for this to look like some homeopath talking about doctors, or any other CTer trying to explain why all the experts are wrong and that he is right.

Suddenly

3rd March 2009, 07:31 AM

In an inquisitorial system, where the lawyers are engaged strictly in assisting the search for the legally and factually correct outcome rather than operating with a license to use every trick in the book to get a jury to return the verdict they want, lawyers have much less power. A defence lawyer is much less necessary when the prosecution is obliged to seek the truth, and the defence is not allowed to attempt to hide it.

It is a part of the American criminal system that the prosecutor is supposed to seek the truth and act in the interests of justice and the people as a whole. He is not supposed to seek a conviction at all costs.

Yet they do. Why? People are people.

This is the core argument against the continental system. There is less of a check on a prosecutor and police run amok. To suggest that in that system the sun will suddenly shine and all prosecutors will now play nice-nice strikes me as quite naive.

It would be a lot easier for police and a prosecutor to frame someone under the continental system. Way, way easier.

Soapy Sam

3rd March 2009, 08:10 AM

I've taken notes on jury duty in a Scottish court. No-one made any comment on it. Was it a case which might be of particular interest to the media?
Not that I recall. It was in Reading, so there may be differences between Scots and English Law, or even between individual courts. It just struck me as braindead.

richardm

3rd March 2009, 08:20 AM

Not that I recall. It was in Reading, so there may be differences between Scots and English Law, or even between individual courts. It just struck me as braindead.

As far as I know jurors can take notes in an English court, but they're not allowed or take the notes home. Perhaps your friend misunderstood? Conflated with "Not allowed to make a record", as in taping the proceedings, perhaps?

I know that the (Scottish) jury I sat on was issued with pens, paper and clipboards, and I don't think it was for doodling ;)

Edit: In fact This PDF (http://www.hmcourts-service.gov.uk/docs/infoabout/juryservice/jurors_charter_september_2008.pdf) from Her Majesty’s Courts Service for England and Wales specifically says:

In the court room/the trial
<snip>
Once selected to sit as a juror on a trial
You can expect:
<snip>
• pens / pencils and paper to be provided in the jury box
• to be able to ask questions relating to the trial by giving a note to the usher
who will pass it to the judge

I Ratant

3rd March 2009, 08:29 AM

linusrichard

3rd March 2009, 08:45 AM

It is a part of the American criminal system that the prosecutor is supposed to seek the truth and act in the interests of justice and the people as a whole. He is not supposed to seek a conviction at all costs.

Yet they do. Why? People are people.

The bolded part, that makes it sound like most or almost all of them do. I'd like to think it's a minority. Are you overly cynical, or am I overly naive?

linusrichard

3rd March 2009, 08:53 AM

In a recent murder case here, the 2nd trial failed also.
One opinion for the failure was that jurys have come to expect the other-worldly CSI style proof of guilt.
When that isn't presented, as it is imagainary, then it takes only one "reasonable doubt" to hang the jury.

Prosecutors I've talked to have said that's a big challenge they face in murder trials and similar. DNA evidence can be hard to come by (as my Criminal Procedure prof. noted: "If you watch CSI, you might think we all leave a trail of semen everywhere we go... it isn't true!") and can take an awful long time to process. IIRC, 6 months is relatively quick in real life, whereas on TV, 24 hours seems to be the norm, unless you need it rushed (which they always do, don't they?).

The other thing jurors "know" from TV that's wrong is circumstantial evidence. I've watched a prosecutor in voir dire banging his head on that wall. Circumstantial evidence isn't unreliable evidence, or weak evidence, or legally insufficient evidence. It's just a particular type of evidence. But no matter how much the attorney explained it, one juror still insisted that he probably would not be able to convict someone on "just" circumstantial evidence. (Cf. - evolution is "just" a theory.)

NoZed Avenger

3rd March 2009, 09:00 AM

I realised that section went overboard, and edited it, but not before a few people jumped on it. So it goes. I acknowledge it was not the right thing to say and apologise. Now I encourage you all to respond to everything else in my post other than the low-hanging fruit.

"Everything else" ?

Perhaps there are substantive points I am missing, but apart from a bald assertion that the continental system is better and lawyers are engaged in a conspiracy to suppress this obvious-on-its-face fact, I don't see anything else to respond to. Moreover, you seem to have missed the point that both Suddenly and I -- despite being lawyers -- don't fully agree on either of the major issues being talked about (the exclusionary rule and the value of the continental system as a whole). Nevertheless, you seem to insist on treating us (i.e., the profession as a whole) as a monolithic (and devious) entity.

Even after editing your post, it seems clear that any argument from a lawyer regarding the legal system is to be dismissed out of hand as not just wrong, but the product of a deceitful, devious and insincere group with all the power of the Illuminati, except with even less morals.

I have already pointed out a few things I like about the adversarial and jury system; Suddenly has added some good (and more objective) points. My primary concern about the continental system is that the power of the prosecutor and judge are even greater than in our system, and that merely adopting a different system will not so away with the human tendencies that can cause problems in our own system. If the prosecutor can be overzealous in an adversarial system, why should I believe that he or she will suddnly be a saint when his adversary is no longer there to hold hijm in check and keep him honest?

bigred

3rd March 2009, 09:28 AM

if the jury is doing it they have a vested interest in getting the whole thing over with.
There's one of the problems with it: some would be more interested in "getting it over with" vs justice (not too hard to understand, but wrong all the same).

And really it just makes no sense to me as I think it invites a lot of bias, and the whole point is for jurors to be as objective as possible.

Finally, I think it could grind down the already massively clogged courts even more - NOT what we need.

As far as I am aware, jurors in Britain can ask questions. I have seen it suggested that the lawyers involved like this because it gives them a feel for how the jury is thinking....which is another reason not to do it, ie it would help lawyers know how to "play the audience."

Were I innocent of a crime, I would elect to be tried by a judge. If guilty, I would elect to be tried by jury.
Wow I couldn't disagree more. In fact, to me one of the biggest flaws in the US system is the 1-judge thing as power corrupts and often does as judges being human bring their own biases/etc into it.....they have too much power already and WAY too much in cases where there is no jury (misdemeanors etc). With a jury, the risk and viewpoints/etc are spread out over a group of people. If we could have ALL cases (including misdemeanors, other than traffic tickets) by jury w/o grinding the system to a halt, I'd be all for it.

Suddenly

3rd March 2009, 10:37 AM

The bolded part, that makes it sound like most or almost all of them do. I'd like to think it's a minority. Are you overly cynical, or am I overly naive?

I meant it that we know some people do, the Duke rape case a few years ago made this clear. As to numbers I can really only speak to the prosecutors I deal with and transcripts I have read. I know only one person that is completely over the top insane on a regular basis about this stuff.

It is a matter of perspective and complicated. I would say virtually all fall into this at some level at some time if for no other reason than the human need to want to succeed. I can't really criticize that on a moral level, but it is there. Also, the defense side is supposed to be totally focused on acquittal rather than the interests of justice and the people and such, and there is a normal reaction to respond in kind... That part of it wouldn't be an issue in a continental system, but that is a small part of the picture.

Also, some forget themselves when dealing with a rather nasty crime... It happens.

On the other extreme there is a minority of prosecutors with near pathological hatred towards all criminal defendants, some because they have issues and some because it helps them get ahead.

dudalb

3rd March 2009, 10:46 AM

So Kevin wants a system where the defendents cannot hire a lawyer to defend them?

Kevin_Lowe

3rd March 2009, 03:59 PM

When you claim our motivation for our conspiracy is money, you imply that we are, you know, making some. Unless you are now shifting the conspiracy to our wanting to drain the public purse in total even though it makes us little money as individuals... which is insane on its face.

This is more of the same straw-man-beating.

Lawyers want to work as lawyers (you yourself keep working as a lawyer despite the fact that you say you could make more working as a coal miner) so as a professional group they want there to be lots of work for lawyers. The modern adversarial system effectively requires the defendant to have a lawyer to stand a chance, and so makes lots of work for lawyers.

Most unions seek to find or make work for their members. It's their job. It's not a conspiracy theory that lawyers engage in this behaviour too. Rather, it's a fairy story that "codes of legal ethics" prevent them from ever doing any such thing.

Living in the USA you probably don't see the worst of it though, because your Public Defender system is considerably cheaper than the legal aid systems used in Australia, NZ, and particularly the UK. I believe the UK spends more than three times as much as the USA per head of population on legal aid (welfare for defence lawyers).

In the USA the problem takes a different turn, as I understand it, with the Public Defenders being massively overworked as a consequence of UK-like workloads with US budgets, which leads to ridiculous rates of plea-bargaining that serve neither justice nor the community. The guilty get off too lightly, and the innocent often never see a trial.

You might even be right that a switch to an inquisitorial system would leave the US public defence budget about the same and the workload reduced to a reasonable level - I suspect the cuts would go deeper, but I can't prove it. The UK legal defence community would be in real trouble though if such a switch ever occurred.

Considering I am a critic of the status quo and laying out reasons why changing the status quo would be almost impossible in America as a practical sense, you make no sense here.

There's little or no practical difference between someone arguing "We should never do X because it's wrong!" and "We should do X, but it's utterly impossible, so don't even try".

Abstract ideas don't put people in jail. They don't cause famines in the Ukraine. People acting in the name of this abstract idea do this. People that need to be kept in line as history is pretty clear that a government that does not repect the rule of law is a monsterous danger.

Yet despite your lawyerly speechmaking, Joe Plod is still not Parliament, and you can still reason yourself into all sorts of idiotic positions if you start from that false assumption.

Now we are getting to the realm of standard conspiracy theory. You ignore the historical factors that have led to the English common law tradition and the adversarial system and simply frame an effect you don't like as a cause.

This is more or less an post hoc ergo propter hoc fallacy.

We're painting with a broad brush here, you more so than me, but historically the actual mechanism was lawyers making up more and more arbitrary rules, traditions and escape hatches for themselves, each of which made lawyers more important, judges less active, and the truth less likely to come out. Over time the adversarial system transformed from something a lot like a primitive form of the modern inquisitorial system into the current charade where advocates run amok and the judge and jury are sidelined as much as possible.

Each change benefited the existing lawyers by expanding their toolbox, and thus the number of means to frustrate the course of justice defence lawyers could sell to their clients, but the happy (for the profession) side-effect was that more and more lawyers were needed to keep the system from collapsing under its own weight.

Even so it is largely based on questionable factual assumptions when considering only the criminal justice system. The reduction of criminal defense lawyers were the system to be changed would probably in the big picture be near negligible in my opinion. If anything, it would reduce the caseload of most public defenders to a more managable level.

Yet on the European continent there are far fewer lawyers per head of population, as I understand it, yet their courts are not backed up for decades the way ours would be with so few lawyers. I think this factual claim is merely wishful thinking.

Add "...and even if we did X, it would make no difference, so why bother?" to the list of arguments which all lead to the same conclusion: Don't do X.

So... we are at least all unthinkingly corrupt?

It doesn't take much modification for this to look like some homeopath talking about doctors, or any other CTer trying to explain why all the experts are wrong and that he is right.

...or someone who suspects that the opposition of police unions to drug decriminalisation in the USA and Australia has more to do with keeping police numbers and powers at the current level, than with doing what is best for society?

...or someone who suspects that politicians may vote themselves perks and pay rises which are out of line with what non-politicians receive?

Are those conspiracy theories in the perjorative sense too? I think it's simply common sense that people given the opportunity to make self-serving decisions and get away with it will often do so.

What mechanisms do you see to stop lawyers making up rules that benefit them as a profession? Don't say legal ethics.

It is a part of the American criminal system that the prosecutor is supposed to seek the truth and act in the interests of justice and the people as a whole. He is not supposed to seek a conviction at all costs.

Yet they do. Why? People are people.

This is the core argument against the continental system. There is less of a check on a prosecutor and police run amok. To suggest that in that system the sun will suddenly shine and all prosecutors will now play nice-nice strikes me as quite naive.

It would be a lot easier for police and a prosecutor to frame someone under the continental system. Way, way easier.

Yet in practice, the anecdotal evidence I have heard is that they don't do so with anything like the frequency of US prosecutors. The reason being, they don't need to do so in order to convict the overwhelming majority of the guilty, so no culture of hiding or misrepresenting exculpatory evidence takes root.

"Everything else" ?

Perhaps there are substantive points I am missing, but apart from a bald assertion that the continental system is better and lawyers are engaged in a conspiracy to suppress this obvious-on-its-face fact, I don't see anything else to respond to. Moreover, you seem to have missed the point that both Suddenly and I -- despite being lawyers -- don't fully agree on either of the major issues being talked about (the exclusionary rule and the value of the continental system as a whole). Nevertheless, you seem to insist on treating us (i.e., the profession as a whole) as a monolithic (and devious) entity.

Rather you insist on engaging with that straw man.

You and Suddenly are not part of a hive mind, any more than Joe Plod on the beat is part of a hive mind with the rest of the Police Union. Individual police officers can and do, for example, disagree with drug criminalisation. That doesn't mean that it's not also true that the police community as a whole benefits from drug criminalisation and every police union I know of in the USA and Australia is adamantly against decriminalisation.

You are both, however, trundling out many of the usual bad arguments in favour of the current system, so like it or not you are acting to support it.

Even after editing your post, it seems clear that any argument from a lawyer regarding the legal system is to be dismissed out of hand as not just wrong, but the product of a deceitful, devious and insincere group with all the power of the Illuminati, except with even less morals.

Yet more straw. An argument stands or falls on its own merits, not on the merits of the person articulating it.

I am merely pointing out that the legal community are professionals at generating pretty or important-sounding arguments for whatever position they are taking, and so the mere existence of a pretty or important-sounding argument for an institution which benefits lawyers means nothing.

I know I've met more than one lawyer who uses their professional skills to try to get their way outside the courtroom. I'm not saying it's normal - I lack a sufficiently large sample - but I've seen it, so I know it happens.

I have already pointed out a few things I like about the adversarial and jury system; Suddenly has added some good (and more objective) points. My primary concern about the continental system is that the power of the prosecutor and judge are even greater than in our system, and that merely adopting a different system will not so away with the human tendencies that can cause problems in our own system. If the prosecutor can be overzealous in an adversarial system, why should I believe that he or she will suddnly be a saint when his adversary is no longer there to hold hijm in check and keep him honest?

See above. When they no longer need to do so to get convictions (and in addition when they are not elected officials - a foolish system which I think is unique to the USA) they don't seem to do so.

It's not human nature to try to pervert the course of justice to jail every defendant. It's just cultural drive created by the current system.

Dunstan

3rd March 2009, 04:38 PM

There's little or no practical difference between someone arguing "We should never do X because it's wrong!" and "We should do X, but it's utterly impossible, so don't even try".

There's no "practical" difference in the sense that it leads to the same conclusion, but it's certainly relevant to the discussion. "Nuclear fusion power plants are morally wrong" is a different argument from "nuclear fusion power plants are impossible with current technology."

Yet despite your lawyerly speechmaking,

Ah yes, when your opponents make an argument, it's "lawyerly speechmaking." When you do it, of course, you're just a plain-spoken ordinary chap speaking truth to power?

You're still poisoning the well, attempting to use "lawyerly" as a perjorative term.

We're painting with a broad brush here, you more so than me, but historically the actual mechanism was lawyers making up more and more arbitrary rules, traditions and escape hatches for themselves, each of which made lawyers more important, judges less active, and the truth less likely to come out. Over time the adversarial system transformed from something a lot like a primitive form of the modern inquisitorial system into the current charade where advocates run amok and the judge and jury are sidelined as much as possible.

Each change benefited the existing lawyers by expanding their toolbox, and thus the number of means to frustrate the course of justice defence lawyers could sell to their clients, but the happy (for the profession) side-effect was that more and more lawyers were needed to keep the system from collapsing under its own weight.

This is a rather fanciful account. Legal procedure has probably gotten simpler in most common law jurisdictions over the last century or two. Technical forms of pleading and other traps for the unwary have been generally abolished in favor of simpler, more pragmatic rules.

What mechanisms do you see to stop lawyers making up rules that benefit them as a profession? Don't say legal ethics.

Why not? Because you don't think they exist? Oh, but of course you're not poisoning the well or maligning lawyers at all.

I know I've met more than one lawyer who uses their professional skills to try to get their way outside the courtroom. I'm not saying it's normal - I lack a sufficiently large sample - but I've seen it, so I know it happens.

What exactly does that mean? That they form arguments and present evidence? Or that they threaten to sue people?

dudalb

3rd March 2009, 05:06 PM

What is amusing is that Kevin's solution would make judges almost all powerful in the judicial system.
I think it comes down to Kevin hates lawyers.

quixotecoyote

3rd March 2009, 05:20 PM

Prosecutors I've talked to have said that's a big challenge they face in murder trials and similar. DNA evidence can be hard to come by (as my Criminal Procedure prof. noted: "If you watch CSI, you might think we all leave a trail of semen everywhere we go... it isn't true!") and can take an awful long time to process. IIRC, 6 months is relatively quick in real life, whereas on TV, 24 hours seems to be the norm, unless you need it rushed (which they always do, don't they?).

That has a flip side too, though. When they do have forensic evidence, it carries a lot of weight.

That's something I've been meaning to start a thread on now. The police arrest you, take the evidence into the lab, come back out and say, "Yep, he did it."

I imagine most of the time they're probably honest and correct, but that's just my faith in the system. What scares me is the massive potential for abuse.

It makes me picture a metaphorical suspect captured by a theocracy and put on trial. They still use a jury for some reason and the inquisitor addresses them at a trial.

"Our investigators have spoken to God of the crime, and God says he definitely did it."

The jury does not have the ability to verify the evidence, they must take the prosecutions word that it is the case, and there is no room for doubting the legitimacy of the evidence.

Not saying it's equivalent, that's just where my mind goes.

linusrichard

3rd March 2009, 06:04 PM

That has a flip side too, though. When they do have forensic evidence, it carries a lot of weight.

That's something I've been meaning to start a thread on now. The police arrest you, take the evidence into the lab, come back out and say, "Yep, he did it."

I imagine most of the time they're probably honest and correct, but that's just my faith in the system. What scares me is the massive potential for abuse.

There are safeguards. The prosecutor isn't allowed to testify - he can only examine witnesses and bring in exhibits. Expert witnesses need to be qualified, and need to explain their methods. Exhibits have various safeguards as well. I've never seen DNA evidence done, but I've seen others, including ballistic evidence, and there is a veritable litany of questioning required to bring out the conclusion that this bullet came from that gun or whatever. The situation I imagine you're imagining, where the prosecutor simply informs the jury that this bullet came from that gun, or a cop on the stand does the same, is not possible. Also - no matter who's testifying, the defendant has an absolute right to cross examine, and sow seeds of doubt.

It makes me picture a metaphorical suspect captured by a theocracy and put on trial. They still use a jury for some reason and the inquisitor addresses them at a trial.

"Our investigators have spoken to God of the crime, and God says he definitely did it."

The jury does not have the ability to verify the evidence, they must take the prosecutions word that it is the case, and there is no room for doubting the legitimacy of the evidence.

Not saying it's equivalent, that's just where my mind goes.

I understand your fears, but with the protections we have, that would not be possible (and I'm not talking about the protections against theocracy). First, the testimony is clear hearsay. Any time a witness says "X said ___," you have hearsay, which is categorically inadmissible (although there are specific exceptions, none of which apply here). Also, defendants have a right to cross-examine, so you will never have a case where the jury simply has to take the prosecution's word for it.

quixotecoyote

3rd March 2009, 06:36 PM

There are safeguards. The prosecutor isn't allowed to testify - he can only examine witnesses and bring in exhibits. Expert witnesses need to be qualified, and need to explain their methods. Exhibits have various safeguards as well. I've never seen DNA evidence done, but I've seen others, including ballistic evidence, and there is a veritable litany of questioning required to bring out the conclusion that this bullet came from that gun or whatever. The situation I imagine you're imagining, where the prosecutor simply informs the jury that this bullet came from that gun, or a cop on the stand does the same, is not possible. Also - no matter who's testifying, the defendant has an absolute right to cross examine, and sow seeds of doubt.

See this might be too many cop shows talking, but I didn't think you could argue against DNA evidence being reliable. Upon doing a brief internet search, I appear to have been mistaken.

I understand your fears, but with the protections we have, that would not be possible (and I'm not talking about the protections against theocracy). First, the testimony is clear hearsay. Any time a witness says "X said ___," you have hearsay, which is categorically inadmissible (although there are specific exceptions, none of which apply here). Also, defendants have a right to cross-examine, so you will never have a case where the jury simply has to take the prosecution's word for it.

I think I was unclear. In that instance the priest talking to god was a metaphor for the police doing forensic tests. The latter is definitely more accurate, but they are equally impervious to a jury member analyzing and evaluating the process.

NoZed Avenger

3rd March 2009, 07:16 PM

Yet more straw. An argument stands or falls on its own merits, not on the merits of the person articulating it.

I am merely pointing out that the legal community are professionals at generating pretty or important-sounding arguments for whatever position they are taking, and so the mere existence of a pretty or important-sounding argument for an institution which benefits lawyers means nothing.

Irony. The very next sentence.

bigred

3rd March 2009, 08:06 PM

I think it comes down to Kevin hates lawyers.
He's got company, to put it mildly.

Kevin_Lowe

3rd March 2009, 08:38 PM

Irony. The very next sentence.

No irony, just a simple failure of reading comprehension on your part.

Just because an argument is pretty-looking or important-sounding doesn't mean it's a good argument.

It can't have escaped your notice that the bulk of my posts have made clear and specific criticisms of the arguments involved. So why do you respond by misreading a single snippet, and pretending that the whole of my argument is an ad hominem argument directed at lawyers?

I suggest that rather than play the persecution card you present some logical arguments.

Ah yes, when your opponents make an argument, it's "lawyerly speechmaking." When you do it, of course, you're just a plain-spoken ordinary chap speaking truth to power?

You're still poisoning the well, attempting to use "lawyerly" as a perjorative term.

I take it you don't have any substantial criticisms of my points, you're just miffed at the tone?

This is a rather fanciful account. Legal procedure has probably gotten simpler in most common law jurisdictions over the last century or two. Technical forms of pleading and other traps for the unwary have been generally abolished in favor of simpler, more pragmatic rules.

We use less Latin nowadays, but until the 1780s defendants did not need a lawyer and the overwhelming majority of defendants did not hire one. The entire takeover of the judge-run court system by advocates has taken place in the two-century period in which you claim the system was getting simpler, and many of the silliest excesses were installed in the 1960s. In other words you're almost exactly wrong.

Why not? Because you don't think they exist? Oh, but of course you're not poisoning the well or maligning lawyers at all.

You're the one doing the well-poisoning, Dunstan. I'm just heading off the pointless response "Trust us, lawyers are incorruptible!", which would be a waste of everyone's time.

What exactly does that mean? That they form arguments and present evidence? Or that they threaten to sue people?

We're getting well off-topic, but the behaviour I observed in a couple of lawyers was making up spurious arguments for self-serving positions and repeating them until they were blue in the face, with plenty of flowery oratory about lofty moral principles.

I think it's a case of everything looking like a nail to some people with hammers.

Before you ignore the substantial points at issue, in favour of more straw-man bashing, I am not accusing Suddenly or NoZed of this nor am I saying every lawyer does this. I'm just responding to a specific question asked by Dunstan.

Dunstan

3rd March 2009, 09:50 PM

I take it you don't have any substantial criticisms of my points, you're just miffed at the tone?

No, I'm pointing out your dishonesty and double standards. Sorry if you're "miffed" at being caught at it.

We use less Latin nowadays, but until the 1780s defendants did not need a lawyer and the overwhelming majority of defendants did not hire one. The entire takeover of the judge-run court system by advocates has taken place in the two-century period in which you claim the system was getting simpler, and many of the silliest excesses were installed in the 1960s. In other words you're almost exactly wrong.

There's been no "takeover" of the system. You can still represent yourself if you want. And how many defendants today "hire" a lawyer, as opposed to having one provided for free by the state?

Many cases today involve more complex issues than those of three centuries ago. Whether your neighbor stole your cow doesn't present the same issues of proof as whether a pharmaceutical company failed to disclose a defect that caused your illness. But the actual procedures have gotten simpler.

You're the one doing the well-poisoning, Dunstan. I'm just heading off the pointless response "Trust us, lawyers are incorruptible!", which would be a waste of everyone's time.

Who has said that here? Yeesh, and you accuse everyone else of straw-manning?

We're getting well off-topic, but the behaviour I observed in a couple of lawyers was making up spurious arguments for self-serving positions and repeating them until they were blue in the face, with plenty of flowery oratory about lofty moral principles.

I think it's a case of everything looking like a nail to some people with hammers.

Yeah, because nobody else does that. You've certainly never offered spurious arguments. Suuuure.

Kevin_Lowe

3rd March 2009, 11:04 PM

There's been no "takeover" of the system. You can still represent yourself if you want. And how many defendants today "hire" a lawyer, as opposed to having one provided for free by the state?

You can represent yourself if you like, you'll just most likely lose even if you are innocent because the prosecution can and will run roughshod over you.

As for how many hire a lawyer, the bulk of defendants are poor and get a welfare lawyer. This is not news to anybody here. Why do you bring it up?

Many cases today involve more complex issues than those of three centuries ago. Whether your neighbor stole your cow doesn't present the same issues of proof as whether a pharmaceutical company failed to disclose a defect that caused your illness. But the actual procedures have gotten simpler.

I'm not going to get drawn into a "he said/she said" with you over this. The fact is that it's impossible for the average unlawyered defendant to have a fair trial today, regardless of these unspecified simplifications you refer to.

Yeah, because nobody else does that. You've certainly never offered spurious arguments. Suuuure.

If you can't contribute something more adult than that tu quoque argument, which would be fallacious even if it wasn't totally unsupported, I suggest you close the browser window rather than click the "submit reply" button.

On the other hand if you think you can actually show that one or more of my arguments are spurious then you should do so, instead of talking about it.

a_unique_person

4th March 2009, 04:54 AM

Isn't it that the system in the US (and Australia, the UK and many other countries) is adversarial rather than inquisitorial? It's up to the lawyers to ask questions and make arguments and the jury to decide the merits of the respective cases.

I have been on jury duty twice, and turned down the opportunity for a third chance. It isn't made known to jurors, but they do have the chance to ask questions. Not directly, but through the judge.

NoZed Avenger

4th March 2009, 07:19 AM

No irony, just a simple failure of reading comprehension on your part.

Just because an argument is pretty-looking or important-sounding doesn't mean it's a good argument.

Calling an argument a pretty argument typically made by lawyers is not a refutation. A blanket dismissal of arguments made as spurious because you either don't like them or don't like the profession of people making them is not argumentation.

For example (from the same post):

We're getting well off-topic, but the behaviour I observed in a couple of lawyers was making up spurious arguments for self-serving positions and repeating them until they were blue in the face, with plenty of flowery oratory about lofty moral principles.

So keep talking about all the substance and deep thought you're putting into this topic, but I'll let the points made above stand.

Wowbagger

4th March 2009, 08:08 AM

JamesDillon

4th March 2009, 08:32 AM

I guess it's kinda hard for someone who has embraced the skeptical movement for several years, to be placed in a situation where we are specifically NOT allowed to be granted access to all of the evidence, nor even conduct any form of investigation, ourselves.

I think the two are not necessarily inconsistent-- the rules of evidence are intended, at least, to prevent juries from being swayed by prejudicial information that is not logically relevant to the legal issue. Think of it as legally enforced critical thinking; the law doesn't trust the average juror (for reasons that I'm sure will be obvious to anyone who has embraced the skeptical movement) to be able to disregard irrelevant or inflammatory information and make a decision based only on the relevant facts proven by reliable evidence, so it excludes a lot of such evidence from admissibility. For the same reason, it imposes a reliability threshold for proposed evidence (e.g., the hearsay rule, the best evidence rule)-- not only does the information sought to be introduced have to be logically relevant, it has to come in a form from which a reasonable inference could be drawn that it is true. In other words, in a perfectly-run trial, most of the evidence that doesn't come in is stuff that a good critical thinker would disregard anyway.

That, of course, doesn't necessarily preclude the possibility of permitting jurors to ask questions; sometimes evidence is not admitted not because it would be inadmissible but because the lawyer either didn't think about it or was not as clear in presenting it as he could have been. Perhaps an argument could be made there that permitting juror questions would enhance the pursuit of justice, but you run into a lot of administrative problems with implementing such a proposal. First, a lot of things that the jurors would want to know about would probably not be admissible, or there wouldn't be admissible evidence to prove them. Second, such a practice would tend to extend the jury deliberation process substantially, and increase the already enormous litigation costs to the parties and the court. Trials are not cheap and court dockets are crowded; additional time spent by the court on one case is time not spent on others, thus delaying justice for everyone. Finally, not unlike science or critical thinking, the notion of truth in the law is tightly bound to the burden of proof, and that burden, which includes the privilege and the obligation to present one's case as one sees fit, is borne by the plaintiff/prosecution. Thus it isn't really the jury's or the court's place to offer feedback or advice on how a party's case should be presented, but only to make a determination whether the case as presented establishes a violation of the law.

Suddenly

4th March 2009, 08:43 AM

I guess it's kinda hard for someone who has embraced the skeptical movement for several years, to be placed in a situation where we are specifically NOT allowed to be granted access to all of the evidence, nor even conduct any form of investigation, ourselves.

In the adversarial system the question is not "what is the truth," but "has the state proven beyond a reasonable doubt that by our laws the defendant is guilty af a particular crime." As such, the jury is a passive judge of whether the state has done its job. Some things are just not evidence under the law.

For example, a lot of states have a "rape shield" law, which essentially bars someone accused of rape from bringing in evidence that the alleged victim is some sort of whore that distributes her sexual favors quite freely.

The purpose here isn't completely about whether that evidence is likely to inform the case. It is a policy decision by the legislature that the "she's a whore" defense creates more harm than good. Victims don't speak up because of the threat of having their sexual history a matter of public record.

Likewise with other doctrines. Like if I have a dangerous condition on my land and someone hurts himself on it. If I then fix the condition that is not legal evidence to be used at trial because if it were I would have a motive to not fix the condition and put others at risk.

Now that I have read about cases where juries have been allowed to ask questions, I wonder if it is possible to measure the effect it has on justice. Is there an empirical, objective way to know if justice is more efficient with or without jury questions? (guilty partys found guilty and innocent parties found innocent, more often)?
Probably not. Too many variables to do a classic control group experiment. You would have to make up a mock trial to be effective, but then it is a bunch of actors rather than real people which makes a mess of the core assumption that the jury is a good judge of credibility.

That may be a tough question to tackle, but if we could, it could be very informative and important.

I think it is more a question of philosophy. In the US we are sliding more in the direction of a trial being an exercise in finding the truth, just very slowly. As such, I think juror questions are going to be more common.

A better juror reform issue at this point would be hard studies on things like the ability of a juror to tell the difference between a lying witness and a distressed witness, the value of eyewitness testimony and how jurors are instructed to assess the witness's veracity, and a bunch of other small things built on centuries old assumptions...

JamesDillon

4th March 2009, 08:55 AM

I agree with everything Suddenly said, but would note that rape shield laws and rules regarding the inadmissibility of repairs are somewhat anomalous in that they are public policy-based exclusions of evidence that would (arguably) otherwise be relevant to the issues at trial. There are probably some other examples of that, but I think it's safe to say that most of the evidence deemed inadmissible under the rules is so regarded either because it is has little to no relevance to the issues but has substantial potential to mislead or to inflame the emotions of the jury, or because it is deemed too unreliable to be considered. To that extent, as I noted above, the rules of evidence are a procedural implementation of critical thinking practices.

Kevin_Lowe

4th March 2009, 02:30 PM

Calling an argument a pretty argument typically made by lawyers is not a refutation. A blanket dismissal of arguments made as spurious because you either don't like them or don't like the profession of people making them is not argumentation.

Name just one substantial argument in this thread that I have dismissed as spurious because I don't like them or don't like the profession of people making them.

You can't do so, because I have never done so.

Nor do I dislike lawyers - that's merely your unfounded attempt to smear my character rather than address my arguments. I dislike aspects of the current legal system, certainly, but I'm smart enough to realise that's not at all the same thing.

So keep talking about all the substance and deep thought you're putting into this topic, but I'll let the points made above stand.

In other words, you've got nothing to offer except to attack my character and pretend that I haven't made any substantial arguments. The first is a canonical fallacy and the second seems like it can only be either a serious failure of reading comprehension or outright dishonesty.

The challenge to respond meaningfully stands.

Thunder

4th March 2009, 02:38 PM

It is the judges job to ask the questions. that's what he is paid for. the jury's role is simply to evaluate the evidence presented.

Seanette

5th March 2009, 12:25 AM

So, my questions for all of you is:
1. Why?
2. Do you agree or disagree that juries should be able to ask questions, somehow?
3. If you do agree, what would be an appropriate system for doing so?

1. Dunno
2. Agree whole-heartedly, and have been a juror.
3. Good question. Don't have a good answer off the top of my head.

Seanette

5th March 2009, 12:27 AM

A friend on jury duty was told he could not take notes.
Can anyone explain the thinking here?

Weird. When I was on a jury in California (criminal case, two felony counts), we were actively encouraged to take notes, and the court issued notepads (the judge politely informed me I had to use theirs instead of the one I'd brought. They were collected after the verdict).

Seanette

5th March 2009, 12:38 AM

Orphia Nay

5th March 2009, 12:52 AM

I have been on jury duty twice, and turned down the opportunity for a third chance. It isn't made known to jurors, but they do have the chance to ask questions. Not directly, but through the judge.

It is made known to the jurors (depending on the judge, I guess).

The jurors are told before they deliberate* that they can agree amongst themselves to ask (a) question(s), and their foreman asks it.

*deliberation happens after all the evidence has been given by both sides, and the judge has made his/her summary.

(This is in Victoria, Australia, as I understand it. I work in the field of Justice.)

a_unique_person

5th March 2009, 01:14 AM

It is made known to the jurors (depending on the judge, I guess).

The jurors are told before they deliberate* that they can agree amongst themselves to ask (a) question(s), and their foreman asks it.

*deliberation happens after all the evidence has been given by both sides, and the judge has made his/her summary.

(This is in Victoria, Australia, as I understand it. I work in the field of Justice.)

You can ask the judge as many questions as you want, but he's not a witness. If you are in the middle of the deliberations, as we were, and wanted to know a crucial point that that the prosecution and defense didn't raise, the only way to to that was to go back to that point in the trial, and rerun it from there, with our question asked at that point to that witness.

Suddenly

5th March 2009, 07:09 AM

It is made known to the jurors (depending on the judge, I guess).

The jurors are told before they deliberate* that they can agree amongst themselves to ask (a) question(s), and their foreman asks it.

*deliberation happens after all the evidence has been given by both sides, and the judge has made his/her summary.

(This is in Victoria, Australia, as I understand it. I work in the field of Justice.)

This is standard in the US.

However, a factual question will not be answered, it is limited to answers the judge can give, which is limited to questions of law.

A jury could ask a question about the definition of intent. The judge may do a number of things, he could decline to answer and refer the jury to the instrucions, he could repeat the instructions, or he could give a new and deeper instrution.

If they ask something factual they will simply be told that they must rely on what they remember, although upon specific request the judge will (rarely) have the transcript of certain testimony read back to the jurors.

JamesDillon

5th March 2009, 01:46 PM

Weird. When I was on a jury in California (criminal case, two felony counts), we were actively encouraged to take notes, and the court issued notepads (the judge politely informed me I had to use theirs instead of the one I'd brought. They were collected after the verdict).

This may vary by state, and often by judge. In the New York federal system, with which I'm most familiar, it's up to the judge whether to permit jurors to take notes. Some do, but others fear that it would interfere with jurors' attentiveness to the testimony, or that, because their recollection of the testimony and evidence is controlling above all else, they would be unduly deferential to their own notes or those of another juror, so forbid notetaking.

You can ask the judge as many questions as you want, but he's not a witness. If you are in the middle of the deliberations, as we were, and wanted to know a crucial point that that the prosecution and defense didn't raise, the only way to to that was to go back to that point in the trial, and rerun it from there, with our question asked at that point to that witness.

Are you saying that the judge let the parties re-call a witness for additional testimony after deliberations had started? That's highly unusual.

JoeTheJuggler

5th March 2009, 01:50 PM

Also courts like to keep relevant information from juries by ruling certain kinds of evidence inadmissible, and hoping the juries don't think to ask about it. Juries might be prone to asking awkward questions about such excluded evidence, whereas lawyers are required to collude not to bring up any gaps in the prosecution or defence stories caused by such evidence being excluded.

I was on a jury in a civil case where I'm virtually certain this happened. It was a case between two parties, but the incident in question involved a third party. A very simple deposition from that third party (who had no interest in the case) would have made the case a slam-dunk for one side or the other. (In fact, with that person's account of what happened, I'm certain the case would never have made it to trial.)

I assume that the party whose case was undermined by that third party's account managed to get that evidence declared inadmissable.

gumboot

5th March 2009, 02:54 PM

Yet the Continental system uses lay jurors, does not hide evidence from them, and works.

You're confusing your terms. "Continental" refers to the system of Laws, not the legal process. It's more regularly known as "Civil Law" or "Roman Law". It's comparison is "Common Law" or "Anglo-American Law".

Whether the system is a Civil Law or Common Law system and whether it uses an Inquisitorial or Adversarial legal procedure are separate issues.

gumboot

5th March 2009, 03:08 PM

I was on a jury in a civil case where I'm virtually certain this happened. It was a case between two parties, but the incident in question involved a third party. A very simple deposition from that third party (who had no interest in the case) would have made the case a slam-dunk for one side or the other. (In fact, with that person's account of what happened, I'm certain the case would never have made it to trial.)

I assume that the party whose case was undermined by that third party's account managed to get that evidence declared inadmissable.

On what grounds was their evidence ruled inadmissable?

The way Kevin Lowe is talking he makes it sound like courts just arbitrarily pick and choose which evidence to accept. That's entirely incorrect. Evidence is only ruled inadmissable when the evidence lacks chain of custody to guarantee its validity.

There have been cases where legitimate evidence was incorrectly ruled as inadmissable, and appeal courts will rule a miscarriage of justice.

There have been cases where inadmissable evidence was presented, and appeal courts will rule a miscarriage of justice.

Kevin_Lowe

5th March 2009, 06:06 PM

On what grounds was their evidence ruled inadmissable?

The way Kevin Lowe is talking he makes it sound like courts just arbitrarily pick and choose which evidence to accept. That's entirely incorrect. Evidence is only ruled inadmissable when the evidence lacks chain of custody to guarantee its validity.

Thanks for joining the crowd of people "helping" by making up my position for me and then attacking it.

Actually it's also ruled inadmissible if a lawyer can talk the judge into declaring it "prejudicial", meaning likely (in the opinion of the judge) to lead the jury to make an irrational decision, or if it threatens lawyer/client privilege, or if it's "hearsay", or if it falls under special exceptions ("rape shield" laws and so forth). Once again it's an example of the system getting confused and treating the jury as irrational sheep half the time and infallible oracles the other half.

So for example previous convictions for perjury, previous convictions for similar offences, photographs of victims' injuries, overheard conversations between the defendant and their lawyer, a previous history of drug use and so on could all be excluded from a trial where someone is accused of bashing a victim while high on drugs. (A clever prosecution lawyer can attempt to box a witness into claiming that the defendant is an honest person who never uses drugs, in which case they can then get their evidence in, but unless they can finagle a witness into making this error despite defence coaching this evidence must be hidden from the jury).

There have been cases where legitimate evidence was incorrectly ruled as inadmissable, and appeal courts will rule a miscarriage of justice.

There have been cases where inadmissable evidence was presented, and appeal courts will rule a miscarriage of justice.

There have also been cases where manifestly relevant evidence was excluded, which was not a miscarriage of justice in the sense that an appeal court will look at it.

It's hard to see whose interests these rules serve, apart from those of criminals and of defence lawyers who want to sell a service to criminals. If juries have the brains we credit them with some of the time, an explanation by the judge of the relevance or otherwise of this evidence should be sufficient.

JamesDillon

5th March 2009, 07:13 PM

It's hard to see whose interests these rules serve, apart from those of criminals and of defence lawyers who want to sell a service to criminals. If juries have the brains we credit them with some of the time, an explanation by the judge of the relevance or otherwise of this evidence should be sufficient.

You seem to have a pretty good understanding of the rules of evidence (though I think perjury convictions are generally admissible to impeach credibility in almost all circumstances); but I don't see how this conclusion follows from it. I suppose one could argue (uncharitably, I think) that the rules of evidence treat jurors as "irrational sheep," but is it really hard to see that the point of the rules is to ensure that the jury's decision is based on a rational analysis of the relevant evidence, rather than inflammatory or unreliable assertions, even if the system doesn't always work perfectly?

ZirconBlue

5th March 2009, 07:32 PM

IThank you for articulating the standard story. Jurors are smart enough to be treated as nigh-infallible in judgements of fact, but dumb enough that they can only attain this infallibility if procedural rules, strictly adhered to, govern whether or not they are allowed to see all the relevant and available evidence.

IMHO, it's not a question of how smart or dumb the jurors are. It's a question of whether they have enough legal expertise to properly weigh the relative values of evidence they receive. The procedural rules are there, in part, to make sure they can make their judgement without extensive legal training.

Uncayimmy

5th March 2009, 08:38 PM

IMHO, it's not a question of how smart or dumb the jurors are. It's a question of whether they have enough legal expertise to properly weigh the relative values of evidence they receive. The procedural rules are there, in part, to make sure they can make their judgement without extensive legal training.

In the adversarial system there's another consideration, which is that jurors should not be advocates themselves.

a_unique_person

6th March 2009, 01:20 AM

Are you saying that the judge let the parties re-call a witness for additional testimony after deliberations had started? That's highly unusual.

He said that that's what it would take for us to be able to ask that question. We passed. ;) This is Australia, not the US.

gumboot

6th March 2009, 01:36 AM

Thanks for joining the crowd of people "helping" by making up my position for me and then attacking it.

You'll note I said "The way Kevin Lowe is talking he makes it sound like"

This is the impression I got from your comments. You have clarified, which was the point of making the statement.

Actually it's also ruled inadmissible if a lawyer can talk the judge into declaring it "prejudicial", meaning likely (in the opinion of the judge) to lead the jury to make an irrational decision

If used properly, "prejudicial" evidence is evidence not relating to the specific crime in question that might influence the jury's opinion.

For example, information on prior convictions.

or if it threatens lawyer/client privilege

Confidentiality is pretty standard across a number of professions.

or if it's "hearsay"

There's a very good reason hearsay is not permitted.

or if it falls under special exceptions ("rape shield" laws and so forth).

I am of two minds about how sensible those sorts of exceptions are.

Once again it's an example of the system getting confused and treating the jury as irrational sheep half the time and infallible oracles the other half.

I think it's an example of the system understanding that the jury are people, and people are fallible.

So for example previous convictions for perjury, previous convictions for similar offences

There's a very good reason this is inadmissible.

photographs of victims' injuries

I've never heard of photographs of the crime being inadmissible in this country. Can you cite a case?

overheard conversations between the defendant and their lawyer

Yes, hearsay.

a previous history of drug use

See above.

It's hard to see whose interests these rules serve, apart from those of criminals and of defence lawyers who want to sell a service to criminals.

They serve to ensure the defendant (who is presumed innocent until proven guilty) is given a fair trial.

Suddenly

6th March 2009, 06:44 AM

I was on a jury in a civil case where I'm virtually certain this happened. It was a case between two parties, but the incident in question involved a third party. A very simple deposition from that third party (who had no interest in the case) would have made the case a slam-dunk for one side or the other. (In fact, with that person's account of what happened, I'm certain the case would never have made it to trial.)

I assume that the party whose case was undermined by that third party's account managed to get that evidence declared inadmissable.

Often when this happens in a civil case the third party is either unavailable or refuses to testify based on fifth amendment grounds or just won't do it (and likely found in contempt).

In a civil matter none of the criminal law exclusionary rules apply to a civil case. There aren't many reasons to keep that kind of testimony out that do not directly relate to the reliability of the evidence itself.

If we are talking about a witness who would testify as to personal knowlege it is most likely he's not available or willing to testify. I have trouble even speculating another cause.

Wowbagger

6th March 2009, 08:58 PM

Think of it as legally enforced critical thinking; I prefer enforcing critical thinking by encouraging investigation. But, maybe that's just me. I could see why the average person might need filters.

Unforuntately, it leaves the system vulnerable to incompetent lawyers, who might not be giving you all the information that could help their own case. As, I suspect may have happened in the one I was on. That is why I would have liked to have asked some questions.

Kevin_Lowe

8th March 2009, 03:45 PM

If used properly, "prejudicial" evidence is evidence not relating to the specific crime in question that might influence the jury's opinion.

For example, information on prior convictions.

Actually this is clearly relevant information, unless you are going to argue that past behaviour is no guide to future behaviour.

Confidentiality is pretty standard across a number of professions.

However extending this confidentiality to people who are not members of the profession is not standard. If Person A knows that Person B has syphilis, they are under no obligation not to tell others unless Person A happens to be Person B's doctor.

The basis for lawyer/client confidentiality as something society should uphold is also a lot thinner than the basis for doctor/patient confidentiality. There are clear public health reasons why we want people to go to doctors even if they have an embarrassing condition. The reasons why we want criminals to go to lawyers who will help to get them off is less clear.

(It's traditional for lawyers to respond to this argument with "You say that now, but wait until you are the target of a malicious prosecution for a victimless crime! You'll be glad the system is riddled with loopholes we can use on your behalf then!").

There's a very good reason hearsay is not permitted.

No there isn't. It's an idiotic extension of the fetish for direct oral testimony, and the "rule" is riddled with exceptions, the most obvious being police recounting the defendant's confession, but case law is rife with hearsay being ruled in or out of bounds depending on the needs or whims of the court.

There's a very good reason this is inadmissible.

Yet you don't try to explain it. If you did, I think you'd have great difficulty explaining why a previous history of perjury is not relevant to a jury's job of discerning (supposedly) which witnesses are lying and which are telling the truth.

I've never heard of photographs of the crime being inadmissible in this country. Can you cite a case?

It depends what you mean by photographs of the crime, and I can't find anything that speaks about the NZ climate with regard to gruesome photographs. Australian courts rarely exclude this evidence in practise, but as far as I can tell in the USA the judge is expected to determine on a case-by-case basis whether or not the "prejudicial" effects of a photo substantially outweighs its "probative" effect and it's standard for the defence to try to get gruesome photographs excluded.

According to this submission that cropped up on a Google search:

http://209.85.175.132/search?q=cache:fPvQYS5VsQEJ:www.hamilton-co.org/pub_def/Motions/MM_56.dot+photographs+trial+prejudicial&hl=en&ct=clnk&cd=10&client=safari

... in the USA it's easier in Ohio to get evidence excluded in capital cases than otherwise, since the standard changes from "substantially outweighing" the probative effect to "outweighing" it. Whatever that means in practice.

They serve to ensure the defendant (who is presumed innocent until proven guilty) is given a fair trial.

A lot of people make the mistake of buying in to legal rhetoric about what a "fair trial" is. A fair trial should simply be one where all the available evidence is looked at even-handedly, and a decision made based on whether the evidence is sufficient to support the required level of confidence that the defendant did it. Lawyers have perverted the term so that what they call a "fair trial" is one where the defendant gets to use every trick in the book to hide or misrepresent relevant evidence in order to get off.

Suddenly

9th March 2009, 02:28 PM

Actually this is clearly relevant information, unless you are going to argue that past behaviour is no guide to future behaviour.

It probably is. The problem is that a person is tried for what he is alleged to have done now, not what he is alleged to have done before.

The reasonable temptation for any juror would be to convict a man with a bad past even given substantial doubt he commited the offense alleged based on purely pragmatic grounds. It would be hard not to do in some cases. In fact, the normal human reaction would be to lock him up regardless of the evidence. What if he hurt someone after acquittal?

This, however, violates the spirit of the rule of law and essentially punishes someone multiple times for the same illegal act. If we want someone to be punished for life, we should be passing laws to that effect, not emotionally blackmailing jurors.

Prior bad acts are admitted into evidence when they have some clear bearing on the case other than the bare assertion that "he commited a crime before, so he will do it again." Such evidence might be barely probative, but absurdly prejudicial.

Other than that, if there is a good reason, it usually comes in. Like a purjury case where a person lies about some fact, if the defendant claims he didn't know that fact, that he was in the past convicted of perjury for lying about that fact would be clearly admissible to rebut his testimony.

Lawyers have perverted the term so that what they call a "fair trial" is one where the defendant gets to use every trick in the book to hide or misrepresent relevant evidence in order to get off.

Considering these loopholes have been closing at a rather rapid rate in the last thirty years or so, this claim is simply absurd.

The law has grows less formalistic as time passes. Far, far less. The nuts and bolts of the law such as procedure and evidence rules are infinitely less complex and draconian now than they were 100 years ago. It isn't even close.

Kevin_Lowe

9th March 2009, 04:47 PM

It probably is. The problem is that a person is tried for what he is alleged to have done now, not what he is alleged to have done before.

The reasonable temptation for any juror would be to convict a man with a bad past even given substantial doubt he commited the offense alleged based on purely pragmatic grounds. It would be hard not to do in some cases. In fact, the normal human reaction would be to lock him up regardless of the evidence. What if he hurt someone after acquittal?

That's the usual story, and like a lot of usual stories it assumes that juries are idiots in a fairly specific and implausible way, while simultaneously being competent enough to be treated as nigh-infallible in every other way.

It doesn't take a genius to grasp the fact that just because Suspect A has robbed houses before, it doesn't necessarily mean that Suspect A robbed House B, 67 Something Lane at 8:30pm on the night of the 23rd of August. A judge can explain this concept to slow jurors, and anyone too dumb to get it is so dumb that trying to make them smart by hiding information from them is not going to work.

This, however, violates the spirit of the rule of law and essentially punishes someone multiple times for the same illegal act. If we want someone to be punished for life, we should be passing laws to that effect, not emotionally blackmailing jurors.

This argument is an example of taking a legal fiction and pretending it's empirical fact. The legal fiction is that we should assume that a stint in the big house fixes criminals, so that once they get out they are no more likely to reoffend than the average person on the street is to take up a life of crime. The empirical fact is that we know this is not so.

So when the criminal gets hauled into court again lawyers say "It's not relevant that he's been convicted before, because the legal fiction is that this is not relevant. We're violating the spirit of something, and punishing them again, and doing other emotionally laden things!". This is a foolish argument because what we are actually doing is looking at immediately relevant, factual evidence that speaks to the likelihood that the defendant committed the crime.

Other than that, if there is a good reason, it usually comes in. Like a purjury case where a person lies about some fact, if the defendant claims he didn't know that fact, that he was in the past convicted of perjury for lying about that fact would be clearly admissible to rebut his testimony.

Edit: Misread what you wrote.

Is the fact that a witness has perjured themselves before admissible whenever they are a witness in any other case?
What if they were not convicted of perjury, but you can nonetheless prove that what they said on the stand in another case was untrue and they knew it?

Considering these loopholes have been closing at a rather rapid rate in the last thirty years or so, this claim is simply absurd.

The law has grows less formalistic as time passes. Far, far less. The nuts and bolts of the law such as procedure and evidence rules are infinitely less complex and draconian now than they were 100 years ago. It isn't even close.

Try to make an actual, joined-up argument rather than random statements.

Even if both of the above claims were true, they would do nothing to rebut the statement they purport to answer.

Dunstan

9th March 2009, 05:20 PM

That's the usual story, and like a lot of usual stories it assumes that juries are idiots in a fairly specific and implausible way, while simultaneously being competent enough to be treated as nigh-infallible in every other way.

It doesn't take a genius to grasp the fact that just because Suspect A has robbed houses before, it doesn't necessarily mean that Suspect A robbed House B, 67 Something Lane at 8:30pm on the night of the 23rd of August. A judge can explain this concept to slow jurors, and anyone too dumb to get it is so dumb that trying to make them smart by hiding information from them is not going to work.

Bias and stupidity are not the same thing. The people on this forum probably know more about cognitive biases than 99% of the population, but it doesn't make us immune to it. You don't conduct scientific experiments by explaining bias to "slow" experimenters; you just institute proper blinding controls.

This argument is an example of taking a legal fiction and pretending it's empirical fact. The legal fiction is that we should assume that a stint in the big house fixes criminals, so that once they get out they are no more likely to reoffend than the average person on the street is to take up a life of crime. The empirical fact is that we know this is not so.

I don't think that's what Suddenly was arguing at all, but I'll let him answer for himself on that. I don't think a naive faith in rehabilitation is all that common an argument for excluding prior bad act evidence.

So when the criminal gets hauled into court again lawyers say "It's not relevant that he's been convicted before, because the legal fiction is that this is not relevant. We're violating the spirit of something, and punishing them again, and doing other emotionally laden things!". This is a foolish argument because what we are actually doing is looking at immediately relevant, factual evidence that speaks to the likelihood that the defendant committed the crime.

Where do you draw the line? Should all evidence that is informative in a Bayesian sense be admissible? Should the prosecution be allowed to introduce evidence that people of the defendant's race, religion, gender, etc. are more likely than average to commit the crime in question? Should defendants be allowed to introduce studies showing the frequency with which police officers lie on the stand?

Is the fact that a witness has perjured themselves before admissible whenever they are a witness in any other case?

"Always" is a dangerous word to use in the law, so I'll content myself with saying that I think it would "almost always" be admissible.

What if they were not convicted of perjury, but you can nonetheless prove that what they said on the stand in another case was untrue and they knew it?

That kind of thing is typically a judgment call. If it's a two-day trial for a minor crime, and the defendant wants to spend five weeks calling various witnesses to prove that one of the prosecution's less important witnesses lied on the stand in an unrelated matter ten years ago.... well, isn't that exactly the kind of "lawyer tactic" that you've been railing against? I expect that would be an instance where even you would be in favor of "withholding" technically relevant evidence from the jury.

Kevin_Lowe

9th March 2009, 10:22 PM

Bias and stupidity are not the same thing. The people on this forum probably know more about cognitive biases than 99% of the population, but it doesn't make us immune to it. You don't conduct scientific experiments by explaining bias to "slow" experimenters; you just institute proper blinding controls.

We differ on whether this is a proper blinding control, or just throwing out relevant and available evidence.

Where do you draw the line? Should all evidence that is informative in a Bayesian sense be admissible? Should the prosecution be allowed to introduce evidence that people of the defendant's race, religion, gender, etc. are more likely than average to commit the crime in question? Should defendants be allowed to introduce studies showing the frequency with which police officers lie on the stand?

Generally I'd say that such evidence should be admissible if (and I urge you to read this next bit closely) it is relevant the the particular person, relevant to the particular case, and significant.

I'm not aware of any statistical data about race, religion, gender and so on that can rise to that standard, but I suppose if it existed and turned out to be relevant it should be admitted. If inhabitants of the fantastical Island of Knaves, where everyone lies all the time, were called as witnesses then the jury should be informed that the witness will be lying.

In the case of police officers lying on the stand I'm not sure how you would get good data, but if you could it would obviously be relevant to the jury's job of deciding which people in front of it are reliable and which are not. I've heard anecdotal claims that juries tend to believe police are never lying, and that in some times and places police have lied routinely to courts, but I'm not aware of any statistical data on the prevalence of police perjury.

That kind of thing is typically a judgment call. If it's a two-day trial for a minor crime, and the defendant wants to spend five weeks calling various witnesses to prove that one of the prosecution's less important witnesses lied on the stand in an unrelated matter ten years ago.... well, isn't that exactly the kind of "lawyer tactic" that you've been railing against? I expect that would be an instance where even you would be in favor of "withholding" technically relevant evidence from the jury.

Now you are talking about something entirely different, lawyers taking up large chunks of court time on irrelevant content. I don't support them doing this and I haven't got any brilliant ideas on how to stop them other than the current system of having the judge put a stop to it when they feel it's gone on too long.

Uncayimmy

9th March 2009, 11:06 PM

If inhabitants of the fantastical Island of Knaves, where everyone lies all the time, were called as witnesses then the jury should be informed that the witness will be lying.
That's easy enough. Ask them a question where the lie would be obvious.

In the case of police officers lying on the stand I'm not sure how you would get good data, but if you could it would obviously be relevant to the jury's job of deciding which people in front of it are reliable and which are not.
This is why I am so glad that you aren't in charge of making up the rules. It is foolish and prejudice to assign to an individual a characteristic of a group. The only data that matters is whether the person on the stand is being truthful. You can attack the credibility of a witness but not by attacking the credibility of the group to which he belongs. See http://en.wikipedia.org/wiki/Witness_impeachment for how witness impeachment works in the USA.

Now you are talking about something entirely different, lawyers taking up large chunks of court time on irrelevant content. I don't support them doing this and I haven't got any brilliant ideas on how to stop them other than the current system of having the judge put a stop to it when they feel it's gone on too long.
The other lawyer needs to object.

Dunstan

9th March 2009, 11:13 PM

We differ on whether this is a proper blinding control, or just throwing out relevant and available evidence.

If people have a known psychological bias to over-weight certain kinds of evidence, then "throwing it out" may actually lead to better decision-making.

Generally I'd say that such evidence should be admissible if (and I urge you to read this next bit closely) it is relevant the the particular person, relevant to the particular case, and significant.

I'm not sure what you mean by relevant to the particular person or case, given that I was referring to general statistical data.

I note your use of the word "significant." Let's come back to that in a minute.

I'm not aware of any statistical data about race, religion, gender and so on that can rise to that standard, but I suppose if it existed and turned out to be relevant it should be admitted. If inhabitants of the fantastical Island of Knaves, where everyone lies all the time, were called as witnesses then the jury should be informed that the witness will be lying.

In the case of police officers lying on the stand I'm not sure how you would get good data, but if you could it would obviously be relevant to the jury's job of deciding which people in front of it are reliable and which are not. I've heard anecdotal claims that juries tend to believe police are never lying, and that in some times and places police have lied routinely to courts, but I'm not aware of any statistical data on the prevalence of police perjury.

Hard data is difficult (perhaps impossible) to come by, given that you can't positively determine whether perjury has occurred in any particular instance. A quick Google search showed a few papers that were subscription-only, though I did find this law review article:

Whether it is conjecture by individual observers, [FN12] a survey of criminal attorneys, [FN13] or a more sophisticated study, [FN14] the existing literature demonstrates a widespread belief that testilying is a frequent occurrence. Of course, there is Alan Dershowitz's well‑known assertion (made long before his participation in the O.J. Simpson case) that "almost all" officers lie to convict the guilty. [FN15] Dershowitz may have been engaging in hyperbole, but his claim is not as far off as one might think. In one survey, defense attorneys, prosecutors, and judges estimated that police perjury at Fourth Amendment suppression hearings occurs in twenty to fifty percent of the cases. [FN16] Jerome Skolnick, a veteran observer of the police, has stated that police perjury of this type is "systematic." [FN17] Even prosecutors‑‑or at least former *1042 prosecutors‑‑use terms like "routine," [FN18] "commonplace," [FN19] and "prevalent" [FN20] to describe the phenomenon. Few knowledgeable persons are willing to say that police perjury about investigative matters is sporadic or rare, except perhaps the police, and, as noted above, [FN21] even many of them believe it is common enough to merit a label all its own. [FN22]

But certainly there is evidence of police perjury.

Now you are talking about something entirely different, lawyers taking up large chunks of court time on irrelevant content. I don't support them doing this and I haven't got any brilliant ideas on how to stop them other than the current system of having the judge put a stop to it when they feel it's gone on too long.

Well, but I don't think this is something "entirely different" from what we were talking about. You've already expressed the opinion that a witness's track record for telling the truth is relevant.

You yourself said above that some evidence should be not just relevant, but "significant" in order to be admissible. And that's the point of many of the rules of evidence: to exclude evidence whose probative value is too slight compared to the amount of time involved, or the risk of undue prejudice, etc.

It's fine to disagree with the approach taken by the rules of evidence on any particular issue. There are good competing arguments, which is one of the reasons why rules differ from one jurisdiction to another. But you're still weighing the competing values, too; you can't hide behind some high-minded (but grossly impractical) principle like "never keep relevant evidence from the jury," because even you don't really believe that.

Kevin_Lowe

10th March 2009, 01:16 AM

This is why I am so glad that you aren't in charge of making up the rules. It is foolish and prejudice to assign to an individual a characteristic of a group. The only data that matters is whether the person on the stand is being truthful. You can attack the credibility of a witness but not by attacking the credibility of the group to which he belongs. See http://en.wikipedia.org/wiki/Witness_impeachment for how witness impeachment works in the USA.

Firstly, if the jury already had false ideas about the truthfulness of a given witness based on their membership of a group then giving them solid statistical data could fix this problem. For example if it could somehow be shown that 50% of police officers lied in cases of type Y, and a juror thought police officers lied in 100% (or 0%) of such cases, then showing this information to the juror could make it less likely the juror would make an error.

Secondly, voluntary membership of a social or professional group is not quite the same thing as race, sex or social class. As I said earlier I find it unlikely that any solid evidence about differences between those groups would be significant enough to merit attention at a trial. However I think it's perfectly possible that membership in a voluntary group (like the police force on one hand, or the mafia or a motorcycle gang on the other) could correlate with relevant traits in a witness.

Well, but I don't think this is something "entirely different" from what we were talking about. You've already expressed the opinion that a witness's track record for telling the truth is relevant.

Then I think you're deliberately trying to derail this discussion.

Before you do so further, let me make this perfectly clear. Just because I support allowing evidence of type X into court, does not mean that I support spending arbitrarily large amounts of court time on trivial or irrelevant evidence of type X. That applies to hearsay and it applies to DNA evidence. Clear?

You yourself said above that some evidence should be not just relevant, but "significant" in order to be admissible. And that's the point of many of the rules of evidence: to exclude evidence whose probative value is too slight compared to the amount of time involved, or the risk of undue prejudice, etc.

I'm aware of the justifications, and you're aware I disagree with them.

It's fine to disagree with the approach taken by the rules of evidence on any particular issue. There are good competing arguments, which is one of the reasons why rules differ from one jurisdiction to another. But you're still weighing the competing values, too; you can't hide behind some high-minded (but grossly impractical) principle like "never keep relevant evidence from the jury," because even you don't really believe that.

I think you're playing monkey tricks with the term "relevant" to make it look like you are making a point when you are just attacking a straw man. The amount of time that it's worth spending on a given piece of evidence is proportional to its relevance.

Dunstan

10th March 2009, 08:19 AM

Then I think you're deliberately trying to derail this discussion.

I think you're playing monkey tricks with the term "relevant" to make it look like you are making a point when you are just attacking a straw man. The amount of time that it's worth spending on a given piece of evidence is proportional to its relevance.

It's very frustrating trying to discuss these matters with you.

You bring up some valid points (if not ones I ultimately find persuasive), so I think we could have an interesting discussion. But you're so quick to dismiss any arguments on the other side, and so quick to assert "bad faith" and "trickery" on the part of anyone who disagrees with you, that it seems like you're not really interested in having a discussion; you just want to bully your way through the conversation.

So I'll leave you to it.

Suddenly

10th March 2009, 10:00 AM

This argument is an example of taking a legal fiction and pretending it's empirical fact. The legal fiction is that we should assume that a stint in the big house fixes criminals, so that once they get out they are no more likely to reoffend than the average person on the street is to take up a life of crime. The empirical fact is that we know this is not so.

It isn't a claim of fact. it is a statement of principle. You shouldn't be punished over and over for the same crime, rehabilitation doesn't enter into it.

Is the fact that a witness has perjured themselves before admissible whenever they are a witness in any other case?
Yes, it can be used to impeach a witness. There is a soft ten year limit dating from conviction or release from confinement though, at least in my jurisdiction. Others may vary. This includes criminal defendants that testify.

It is also admissible to bring up any felony, or misdemeanor involving dishonesty against any witness other than the criminal defendant. The exception for the criminal defendant is itself subject to the exceptions I posted about earlier as to absence of mistake, etc.

What if they were not convicted of perjury, but you can nonetheless prove that what they said on the stand in another case was untrue and they knew it?
Generally yes, although there is more to it depending on the specifics.

Try to make an actual, joined-up argument rather than random statements.

Even if both of the above claims were true, they would do nothing to rebut the statement they purport to answer.

Besides striking at your core assumptions of fact, nothing whatsoever.

Uncayimmy

10th March 2009, 12:17 PM

Firstly, if the jury already had false ideas about the truthfulness of a given witness based on their membership of a group then giving them solid statistical data could fix this problem. For example if it could somehow be shown that 50% of police officers lied in cases of type Y, and a juror thought police officers lied in 100% (or 0%) of such cases, then showing this information to the juror could make it less likely the juror would make an error.
You can re-package it any way you want, but it's still introducing prejudice. You're asking the jurors to judge the credibility of a witness based on what other people did in other situations. Your justification? A juror might be prejudiced already and, I assume, the current rules for impeaching a witness are inadequate to overcome this.

Secondly, voluntary membership of a social or professional group is not quite the same thing as race, sex or social class. As I said earlier I find it unlikely that any solid evidence about differences between those groups would be significant enough to merit attention at a trial. However I think it's perfectly possible that membership in a voluntary group (like the police force on one hand, or the mafia or a motorcycle gang on the other) could correlate with relevant traits in a witness.
It doesn't matter whether the group relationship is voluntary or involuntary. You are wanting jurors to have the "right" prejudice, which apparently is possible on Fantasy Island, based on group activity instead of evaluating the individual's credibility during examination and cross-examination.

Kevin_Lowe

10th March 2009, 05:16 PM

It isn't a claim of fact. it is a statement of principle. You shouldn't be punished over and over for the same crime, rehabilitation doesn't enter into it.

People thinking you are likely to commit crime X is not your punishment for crime X. The punishment was the fine, the jail time or whatever.

As I said before, we know for a fact that past criminal behaviour correlates with future criminal behavior. Pretending otherwise for the sake of a made-up principle is abandoning the evidence-based world view for a faith-based one.

Yes, it can be used to impeach a witness. There is a soft ten year limit dating from conviction or release from confinement though, at least in my jurisdiction. Others may vary. This includes criminal defendants that testify.

It is also admissible to bring up any felony, or misdemeanor involving dishonesty against any witness other than the criminal defendant. The exception for the criminal defendant is itself subject to the exceptions I posted about earlier as to absence of mistake, etc. Generally yes, although there is more to it depending on the specifics.

I believed I had read the opposite, but now it occurs to me that I have probably gotten the rules about defendants and witnesses muddled in this instance.

Just checking: Can you introduce the defendant's prior perjury convictions (or evidence of perjury which has not led to a conviction), without special maneuvering?

Besides striking at your core assumptions of fact, nothing whatsoever.

I think you were targeting straw man versions of my argument. If I'd said "All lawyers everywhere are in on a conspiracy to rip off the public, and always have been, and they cannot be stopped" then the fact that courts have become more streamlined since the 60s would be a relevant point.

My suspicion is that two different things were and are going on. One is that the sixties saw an explosion of daft rules favouring defendants, which have been whittled back down somewhat since then. So measuring from the sixties is a bit like global warming denialists measuring from the hottest recent year. The second is that tightening budgets since the sixties splurge on legal aid have forced the legal profession to make trials run faster in order to prevent the system collapsing completely.

More importantly, however, my core criticism of the English system and its descendants is that the adversarial system leads to absurd amounts of wasted time and money and lets far too many guilty people off compared to the inquisitorial systems used on the Continent. While it's interesting to argue about exactly how each deck chair on the Titanic got to where it is, and it may well turn out that I'm mistaken about the position of one or two chairs, they're all still on the Titanic.

Kevin_Lowe

10th March 2009, 05:30 PM

You can re-package it any way you want, but it's still introducing prejudice. You're asking the jurors to judge the credibility of a witness based on what other people did in other situations. Your justification? A juror might be prejudiced already and, I assume, the current rules for impeaching a witness are inadequate to overcome this.

I'm just not necessarily against judging someone based on what other people did in other situations.

If it turns out that members of a particular category of offender (shoplifter, child molester, whatever) are highly likely to re-offend, then I think that's potentially relevant to future trials. Yes, even if we have no specific information about how likely this particular defendant is to re-offend.

Obviously it would depend on the details of the case whether this was relevant. If it comes down to the word of the defendant versus the word of a witness, the defendant's character and likelihood to re-offend are highly relevant. If the defence case is that the accused has documentary evidence they were in Quebec at the time, then the defendant's character is not relevant to whether or not the documentary evidence stands up to scrutiny.

It doesn't matter whether the group relationship is voluntary or involuntary. You are wanting jurors to have the "right" prejudice, which apparently is possible on Fantasy Island, based on group activity instead of evaluating the individual's credibility during examination and cross-examination.

You can't just label relevant information "prejudice" because it's inconclusive and so handwave it away. The more you know about a person, the more accurate your judgements about their honesty are likely to be.

I'm against jurors making decisions based on unfounded stereotypes, sexism and so forth. However that's not at all the same thing as weighing a person's testimony against other people's testimony based on concrete knowledge of crime rates, re-offence rates, previous criminal history and so forth.

Uncayimmy

10th March 2009, 06:59 PM

I'm just not necessarily against judging someone based on what other people did in other situations.
Is that how you would prefer to be judged?

If it turns out that members of a particular category of offender (shoplifter, child molester, whatever) are highly likely to re-offend, then I think that's potentially relevant to future trials. Yes, even if we have no specific information about how likely this particular defendant is to re-offend.
Well, thanks for making that clear. The likelihood to re-offend is irrelevant in the sense that the person either did it or did not do it. There is no "chance" involved. It is a binary proposition. Credibility is an issue, but the "odds" are irrelevant.

Obviously it would depend on the details of the case whether this was relevant. If it comes down to the word of the defendant versus the word of a witness, the defendant's character and likelihood to re-offend are highly relevant.
There are limits to what can be used to impeach the character of the witness. As for the "odds" - not so much.

You can't just label relevant information "prejudice" because it's inconclusive and so handwave it away. The more you know about a person, the more accurate your judgements about their honesty are likely to be.
See, now you're talking about knowing things about a person when really what we've been discussing is knowing about a group and assigning the characteristics of the group to the individual. For someone with such disdain for lawyers, you sure do act like one at times.

I'm against jurors making decisions based on unfounded stereotypes, sexism and so forth.
Right. You want them to make decisions based on founded stereotypes. That is so much better.

Suddenly

10th March 2009, 08:18 PM

People thinking you are likely to commit crime X is not your punishment for crime X. The punishment was the fine, the jail time or whatever.

As I said before, we know for a fact that past criminal behaviour correlates with future criminal behavior. Pretending otherwise for the sake of a made-up principle is abandoning the evidence-based world view for a faith-based one.

There is a lot of "evidence" about the effect of bias as well. You seem to have a rather selective view of these things.

I believed I had read the opposite, but now it occurs to me that I have probably gotten the rules about defendants and witnesses muddled in this instance.

Just checking: Can you introduce the defendant's prior perjury convictions (or evidence of perjury which has not led to a conviction), without special maneuvering?

Special maneuvering? I find it rather telling that you have gone on a lengthy condemnation of these sorts of rules yet have little idea of what they really are...

My suspicion is...

Perhaps you should engage in some specific research and maybe come up with something more than an opinion before you paint entire professions as inherently corrupt.

The simple fact is a legal system doesn't need the elaborate array of defence escape hatches we are currently stuck with to work. That's just a fiction lawyers came up with to justify the existence and use of those escape hatches in exchange for money.

I figured I'd toss in that quote before you made some strawman claim.

linusrichard

10th March 2009, 08:43 PM

The criminal standard is beyond a reasonable doubt. Is there ever a case where a reasonable juror can say that he has a reasonable doubt that the defendant is guilty, but then, upon finding out that the defendant has previously been convicted of a similar crime, has no reasonable doubt that the defendant is guilty? I say, as a general rule, no. I can think of exceptions, but in general, I don't think it's reasonable - if it makes a difference to the jury, it's more due to its prejudicial effect than its probative effect.

Kevin_Lowe

10th March 2009, 09:10 PM

Well, thanks for making that clear. The likelihood to re-offend is irrelevant in the sense that the person either did it or did not do it. There is no "chance" involved. It is a binary proposition. Credibility is an issue, but the "odds" are irrelevant.

Often a criminal trial comes down to one person's word against another's.

In those cases you are never going to get absolute certainty. However I sure as hell want to know if the person accused of, say, mugging someone has mugged people in the past if it's their word against their alleged victims'.

See, now you're talking about knowing things about a person when really what we've been discussing is knowing about a group and assigning the characteristics of the group to the individual. For someone with such disdain for lawyers, you sure do act like one at times.

See, now you're attacking a straw man and putting words into my mouth to boot.

Suppose a Hell's Angel is accused of shooting a gun at someone. A witness is prepared to say that they saw the whole thing, and the accused never even had a gun.

Does it make a difference whether the witness is another Hell's Angel or a Member of Parliament? Knowing nothing else about the witness, yes, it sure as hell does make a difference as to how much weight I put on their testimony.

There is a lot of "evidence" about the effect of bias as well. You seem to have a rather selective view of these things. Special maneuvering? I find it rather telling that you have gone on a lengthy condemnation of these sorts of rules yet have little idea of what they really are...

Perhaps I want to get it in your own words, to save time and so there's no scope for game playing later.

Why didn't you actually answer the question?

Perhaps you should engage in some specific research and maybe come up with something more than an opinion before you paint entire professions as inherently corrupt.

I try to choose my words carefully. I can't prove that those factors were what caused the changes in the legal system, however having done the specific research you allude to I think they most likely were. Don't play the "evolution is just a theory!" game here.

Because I choose my words carefully I also don't appreciate you trying to put words into my mouth again. ("...before you paint entire professions as inherently corrupt"). It's blatantly dishonest of you to do so.

I figured I'd toss in that quote before you made some strawman claim.

I guess you also you figured nobody would actually read it so see if it said what you implied it did.

Would you mind answering that question I asked you?