As a non American, the USA justice system honestly sounds like the worst possible system for justice imaginable. I don't think I could design a worse system if I tried. Do you all just keep the system because it keeps so many people employed following the pointless bureaucracy of it all?
The people making the decisions have no training in law at all, yet they have to decide if the law was broken. They get a brief spoken explanation of the law, but only after they have been given the testimony. Why would you not have someone trained in the law decide if the law was broken? Why would you not allow the jury to interrogate the witnesses when they must bear the responsibility of the decision? The idea seems to be that random people off the street will somehow be more willing to consider all angles and if they disagree, you get another random sampling and try again. Try enough times and eventually you'll get a bunch of people who are annoyed enough by being forced into jury duty to just agree so they can go home. Real justice right there.
You might say that the jury system allows for a justice even if the judge is compromised. But obviously it doesn't - the judge controls what information can be fed to the jury and the jury must make the decision based off that evidence. If the judge is biased, the jury will be forced into a particular decision anyway. Why not just have the judge do their job and have an appeals system and punishments on the judge for bad decisions? And yes, that system works fine. See the current Oscar Pistorius trial for a working system (imo).
Every complex system can be defined in terms of trade-offs, right? Trial by Jury has a fairly extensive history outside of the US, and while not perfect it is a balance against a potentially corrupt establishment. I think if I had to choose trial by a jury of my peers, or by a judge, I'd probably opt for my peers.
I think the bigger problem in the US appears to be mandatory minimums, prosecutors driven by win ratios, pre-trial plea bargaining, and clearly a deep vein of institutional racism (something many other countries also suffer from).
Beyond that, I thought the original article was beautifully written, I enjoyed it.
The thing is, "peers" has had its meaning mutated beyond recognition over the ages.
A jury of your peers used to mean exactly that - people who were familiar with you, the social circumstances that lead to your being in the dock, who had empathy both for you and for the law. Part of the tradition comes from the Frankpledge and tythings, which required you and your peers to collectively police one another, and endure collective punishment if you failed in your duty to justice. In addition, early juries were responsible for investigating the purported crime themselves, and were allowed to acquire information for themselves.
This of course all lead to a degree of corruption (in fact, significant corruption in later years), but was potentially an ultimately fairer system, less biased in favour of conviction.
Having a jury prevaricate on the outcome of a trial concerning someone who comes from a different world to them, who don't understand the nuance of the reality that faces them, who are not allowed to educate themselves about legal facts or the facts of the charges, frankly beggars belief - but it's what we have.
> In order to show that the prosecutor’s dismissal of a juror was discriminatory, a defendant must show that it was based on race, ethnicity, or gender.
A good legal defense is already out of reach of many people.
I'd think this alone (fta) should cause a judge to throw out the prosecution from the case:
> The first thing the prosecutor did during voir dire was ask all the men of color whether we trusted cops. Every black man had a story: police harassment, spurious arrests, intimidation.
> That the defense didn't object to this, or ask the alternate ("Does anyone in here intrinsically trust the police?") perplexes me.
Actually, it didn't occur to me. You made it sound very simple but I didn't see it as a possibility at all. So if someone says yes, we just throw them out of the jury. Now I think this should be a standard question for any case where the police is a witness.
Well, on second thought, we will probably still need a sympathetic judge if we are throwing out someone "with cause". There are only so many we can throw out without a cause.
I thought this was commonly asked, but maybe it varies by state. In my city in Pennsylvania we get a standardized form that does ask this question. It states, "Would you be more likely to believe the testimony of a police officer or any other law enforcement officer because of his or her job?" [1]
So what kind of answer are they expecting for that question? I genuinely can't tell. It seems obvious to me that people who answer "yes" should be excluded, yet I feel the opposite is true.
"are not allowed to educate themselves about legal facts or the facts of the charges"
Because they're not trained lawyers, and they haven't passed the bar. It's to keep them impartial and prevent them from presuming they know the law better and therefor enter with a conclusion without all of the facts.
That's why the judge (who, depending on the level, is either directly-elected or appointed by the person you elected) is there, not to determine guilt, but to be the impartial legal expert and identify the points of law to be decided on, and act as umpire to respect the rights of the plaintiff and accused. These are tasks that just cannot be given to the jury without establishing some sort of certification on them, which would remove from ordinary people the ability to determine justice.
That's rebutted by the Janet Malcolm quote the author includes.
The absences of knowledge isn't impartiality: people don't render decisions from ignorance + logic.
They simply fabricate their best attempt at knowledge and apply that to the situation. So in this respect, it's not a choice between "relying on legal experts to provide legal information" and "using your own amateur legal knowledge" but rather "bastardizing legal experts' explanations to fit your own views" and "using your own amateur legal knowledge."
From that perspective, the latter seems a lot more preferable...
I think the intent is to have people "relying on legal experts to provide legal information". What often happens is "bastardizing legal experts' explanations to fit your own views". I suspect there's a fear that trying to apply the law on one's own leads to the latter happening more. But one could argue that it happens anyways, as you point out.
I wouldn't argue the absence of bias, we seem to be in agreement there, and I think that's the real point of the article. A lot of the arguments on this thread seem to be aimed at the jury system in general. In my opinion, it's not a fault of the jury system, but a fault of people. The jury system, and the instructions given (that we're debating now) are meant to try and minimize that, but they're far from perfect.
The question then becomes, "how do we best get jurors the information they need, while preserving their impartiality?" And I think that's a hard thing to do.
I think a start would be to have a truly impartial legal consultation system that jurors could avail themselves of at any point. The responses would be given with a minimum of contextual information about the case necessary to answer the question.
In practice, the judge is supposed to serve this role, no? But I think it's readily apparent from the variances in judge activism that judges are people too. In hearing all the details about the case they can't help but form an opinion and are in a position to act on that opinion to varying degrees should they so choose.
Juries are weird. Supposed to inject mercy into the system, right? They are your 'peers' and supposed to know better than the lawyers about your situation. Deliberately not experts in law, and not supposed to be. I'm not sure 'impartiality' and legal information are what Juries are about.
I sat on a jury once. The way the judge explained to us how we should decide which evidence to consider or not consider, especially with regards to evidence that is 'clear and convincing' was extremely convoluted. And this is from someone who works in very convoluted systems, has read significant amounts of law, worked with lawyers, and who has taken classes in law. I can only imagine how other jurors who haven't had any significant experience with legal matters felt.
That's the job of the defense, who's trained and has done the research. It's their job to call bullshit on the prosecution in your presence.
So you have two sides who are trained and have (hopefully!) done the research i.e, the facts of the case. Provided they have (and the judge can and will throw out cases where this hasn't been done), then the judge will instruct on the points of law being decided here, which the jury will then decide on.
It's far from perfect, because people aren't perfect. But it's a degree better than the State simply deciding your guilt.
Sometimes the parties show up with half a case, the jury can't agree, and the foreman throws up their hands and says "This is all bollocks", and everyone goes home. Which is what happened in the article.
Which might not exist depending on the jury's job. See a few recent of the recent cases were a jury decided to not indict police officers for killing blacks based on citations from the law given by the DA/SA which were "accidentally" wrong.
Indictments are different. There's no defense because no one's been charged. (high profile cases aside, this is to keep the potential accused from even being mentioned because no charges have been given.) So it's entirely a matter of determining if there's enough cause to go to trial. Once at that stage, then the person becomes an accused, and defense becomes involved.
Yes you make a series of perfectly good points, and I learned about the Frankpledge, so thanks for that.
I agree it is not a utopian system by any regard, but I still think a country that has trial by jury is superior to one with bench trials only. Perhaps not in each individual case, but as a means of rebalancing the power of the establishment vs the people.
I've a friend who is a prosecutors assistant in Australia, having quite a dim view of the ability of my peers I asked him just last week how he rated the performance of the trials he had watched and he said he didn't think he had ever seen a jury get it wrong.
Then again he's just a big bag of relatively well educated prejudice and blind-spots like all of us, so there is that.
Yes, but the counterpoint is that if they let their buddy off the hook and this is later found to be the case, they all end up on a considerably pointier hook.
Speaking of, "the hook" was what you got in the Ottoman Empire instead of a jury trial. You'd be sat upon a large metal hook until you confessed or died.
The US justice systems != all jury systems. I've experienced the justice system in both England and Scotland (they're different!), from the Scottish perspective as a police officer and the English one as a member of a jury on two cases.
In both instances the lawyers who practice, especially in more serious cases, need "a right of audience" - that is they are either an English barrister/Scottish advocate or a solicitor who has undergone additional training. For a case like a murder trial both sides will have solicitors who appoint experienced counsel to actually make the argument in court. This is the key that the American system doesn't have - those counsel almost always act for both defence and prosecution - they are not professional prosecutors or defenders. Some specialise in one direction or the other, but they avoid the tribalism and chasing of conviction rates. There is the equivalent of the DA, that is the senior state lawyers who rarely actually appear in court, but they come up through the tradition of the independent bar.
What that leads to is a prosecution and defence that both tend towards the interest of justice. Given that you end up with the professionals all striving to test the burden of proof, not grandstanding - which leads to a more harmonious jury experience. Many of my friends from university became lawyers, some of the brightest minds in the country practice at the criminal bar and conduct "legal aid" defences - i.e. act as public defenders. It is the equivalent of the defence attorney in the article's case being a Harvard Law graduate.
No legal system is perfect, many are starved of funds, every one has had prominent scandals over the years. I would submit that the jury system is still a valuable check and balance and works remarkable well when combined with an independent, professional, bar which avoids perverse incentives.
Have you read into how big a sham our grand juries are? I'm currently serving on a federal grand jury, and several times a month they pay travel and per diem for dozens of people to listen to a one-sided argument by a US Assistant District Attorney to bring a case to trial. No defense is offered, and they can withhold as much evidence as they like. It's a total waste of time, and I'm sure costs the tax payers millions of dollars a year. After witnessing how ridiculous the whole process, I read that in most countries the prosecutor simply offers their evidence to a judge, who determines probable cause.
But the most outrageous stories you've heard recently about grand juries are that even though they'll "indict a ham sandwich," police officers accused of crimes rarely get indicted because it's in the prosecutor's best interest not to aggravate the department from whom they receive most of their work.
And it does cost money...money, in my opinion is well spent, because in brings in skeptical people such as yourself with the power to check an overzealous prosecutor with simply arresting people on flimsy charges.
There's no defense because no one has been charged; and if you decided that the prosecutor is full of shit, then it means an innocent person is not disrupted or tainted with legal action. That they withold evidence is to protect their sources....which is a trade-off for them, because to withhold is to weaken their case.
I see nothing ridiculous about it at all, really. You're serving a hugely important role as a check on the ability for the executive to go after people. It's a rare occasion where the government is directly answerable to YOU. Hold them to a high standard. And if you think they're trying to pull one over on you, the people, send them packing.
I recently served on a New York grand jury and in my experience the biggest problem was that in 38/40 cases we only heard one side of the story. There were two cases where the defendants testified. Like the other cases, the story of the other witnesses (often cops, sometimes civilians, sometimes some of each) was quite straightforward... until the defendant testified.
It may have been in the defendants' best interest to "muddy the waters" as much as possible, but in both cases we obtained impartial evidence (video, 3rd party records) that corroborated parts of the defendants' stories and conflicted with those of the police officers. (There were other parts of the story where the reverse was true too). In both cases once we heart the defendant's side we needed additional evidence, beyond what the DA had initially provided, for us to be able to decide on whether or not to indict.
Wo some cases it is hard to imagine there being another side (somebody is accused of selling drugs to an under cover cop or there's video of somebody committing the crime), but it makes me wonder if how many of the others were less straightforward than they seemed.
I'd be interested to know under what circumstances a defense is called in during an indictment hearing. Maybe it depends on the evidence being presented, and whether or not it could be refuted easily (before going to trial?) I dunno. Interesting, thanks for sharing.
It can still ruin a life. The social consequences of being indited can be the worst part of some crimes. Especially for charges that people keep saying 'well better safe than sorry'.
Absolutely. That's why, as some people asked elsewhere, why there's no defense. Because they haven't been disturbed yet (in most cases). No reason to drag them in and suffer the social stigma because of some overzealous prosecutor's witch hunt.
You raise many good points, and I don't disagree with many of the faults you point out. However, there's other considerations at play.
The purpose behind a "trial by one's peers" is to ensure that the people, and not the government, is delivering the verdict. The judge's role is to instruct the jury on the points of law being argued on, because he or she (along with the other lawyers in the room) is the trained expert.
For the trial to have gotten to this point, the judge needs to determine that there's enough evidence to even bring the case. There's already been an expert check prior to the jury stage to determine if there's a case at all.
Of course, as the article points out, many cases aren't exactly "Law and Order". (This has been cited as having an influence on cases), in that there simply aren't the resources on behalf of both the prosecution and the defense to pile together tons of evidence or research every possible defense. I liked the references to 12 Angry Men for this reason, because the case in that story had little to go on.
The jury trial system, while seeming strange in all of the restrictions, are intended to try and obtain an untainted jury pool and find those who are as objective as possible. To the author's point that "all of the people of color had been weeded out", I'd note to the defense that it'd be wise to ask the jury pool if they believed people of color to be more likely to commit a crime, or other question to determine a presumption of guilt (just as the prosecution had weeded out those with a presumption of innocence.)
I can think of far worse systems of justice whereby state-appointed judges hand down judgements and sentences behind closed doors. So I'm skeptical about the USA's system being the worst.
But it's certainly imperfect, and that's because judgements are handed down by imperfect people. And as I'm sure as any African-American will attest, it's hard to feel you're being judged impartially when you're looking at a jury of 12 white men.
But you could switch to any number of systems, and at the end of the day it's simply men judging men. The problem is not solved completely by a system, but by solving ourselves.
I found it heartening though that in this story, the structure of things helped. With everything arrayed against the defendant, there was no conviction. It just takes one person, one doubt, to look and go "I'm not certain" and that's it.
And that's exactly what happened. And exactly the way it should be.
> As a non American, the USA justice system honestly sounds like the worst possible system for justice imaginable.
You just have to love a justice system where the police chief, the district attorney and the judge are political offices and must appeal to the masses.
In the UK, the Crown Prosecution Service is supposed to act in the public interest. Not indulge the public's every whim.
It's an imperfect system, but they do put a lot of care into weighing the different factors, far more than I ever will. I'm happy it's their job and not mine.
The chief DA is elected in Texas. The police chief isn't elected but works for the Mayor/City Council. Many judges are elected and others are appointees. Differences in local politics and structure exist, but IMO it is fair to say that those positions are political.
>>and must appeal to the masses.
As to GP's assertion that those people must appeal to "the masses", I think that one must be very careful as to how they define "the masses"; to me "masses" is not the correct word since IMO there is usually a much smaller faction of the local population(s) of people that vote, and/or are active in local politics.
The people making the decisions have no training in law at all, yet they have to decide if the law was broken. They get a brief spoken explanation of the law, but only after they have been given the testimony. Why would you not have someone trained in the law decide if the law was broken? Why would you not allow the jury to interrogate the witnesses when they must bear the responsibility of the decision? The idea seems to be that random people off the street will somehow be more willing to consider all angles and if they disagree, you get another random sampling and try again. Try enough times and eventually you'll get a bunch of people who are annoyed enough by being forced into jury duty to just agree so they can go home. Real justice right there.
You might say that the jury system allows for a justice even if the judge is compromised. But obviously it doesn't - the judge controls what information can be fed to the jury and the jury must make the decision based off that evidence. If the judge is biased, the jury will be forced into a particular decision anyway. Why not just have the judge do their job and have an appeals system and punishments on the judge for bad decisions? And yes, that system works fine. See the current Oscar Pistorius trial for a working system (imo).