8 ms·

I was contemplating about this in the context of many similar posts on HN (Aaron Swartz [1] being a prime one). And I realized the power that lawyers/prosecutor

I was contemplating about this in the context of many similar posts on HN (Aaron Swartz [1] being a prime one). And I realized the power that lawyers/prosecutors wield over accused is enormous. To win a case they can design outrageous plea bargains - plead guilty and get 5 years, don't plead and face death if convicted. Even if lawyers representing accused try to educate him that the chances of conviction are less than 1% the fear of facing death penalty is so enormous that accused typically end up pleading guilty. And not without a reason. Loss aversion plays a big role when a human arrives at a decision. And just like that the prosecutor who initially had a very little chance of winning the case ends up winning it. I know that I'm sort of oversimplifying here but the key take away here is that prosecutor has absolutely nothing to lose! Well OK, he could end up losing the case but that's nothing compared to what accused stand to lose. There needs to be a counterbalance to the power wielded by prosecutors, and this is a good start! [1] https://news.ycombinator.com/item?id=7998287 https://news.ycombinator.com/item?id=7998287

whybroke 11y ago
Just FYI, in the 25 years and hundreds of cases my father saw in criminal court, only one was _not_ convicted: If you end up in front of a criminal judge (at least in California) you are essentially guaranteed of being convinced. There was one death penalty case he saw in that time and while conviction was, as always a certainty, a separate hearing decides "special circumstances" (execution) or just life in prison. To "help the judge make the right decision" the court room was packed to overflowing with a silent audience who obviously universally wanted the death penalty. So two defendants were sentenced to death for a single murder that day.
- jacquesm 11y ago
  > 25 years and hundreds of cases my father saw in criminal court, only one was _not_ convicted That seems very wrong.
  - hawkice 11y ago
    If only because over 25 years surely he would have made it into the thousands of cases, unless he's doing less than one a week.
  - Tomte 11y ago
    Or very right.
  - whybroke 11y ago
    I agree. By the way, the single case that did not end in conviction was of a black preacher accused of child molestation who had an all black jury. And I'll bet most people reading this, trained by tv media's spectacular "everyone is guilty", are instantly and irreversibly convinced he actually was guilty just based on that one above sentence. But if you don't believe me (as you obviously do not) please do take 5 minutes to call a random criminal defense attorney in LA and ask the conviction rate once the defendant enters a not guilty plea.
    - Lawtonfogle 11y ago
      Last time I sat on a jury, before the evidence was all presented and before the judge even read the law (happens after all the evidence is presented, where the judge reads what the law actually is and explains things like how sure you need to be to find in favor of one party or the other), I heard jurors mention they already had their mind made up. They literally didn't even know what the crime actually was and were already ready to convict. It made me realize I never want to go before a jury if I'm innocent (not sure if a judge is better or not, haven't experience on that end).
    - LordKano 11y ago
      On one occasion, when I was in Jr High School, I was sent to the Principal's office. The assistant Principal started discussing my punishment and I chimed in that I didn't do what I was accused of doing. He said that the teacher wouldn't have used her time to send me to the office if I hadn't done what she said I did. I said that the reason we have trials is because sometimes the authorities make mistakes. He looked at me as if I had spoken to him in a foreign language.
- philh 11y ago
  > If you end up in front of a criminal judge (at least in California) you are essentially guaranteed of being convinced. That seems untrue. http://www.courts.ca.gov/documents/2015-Court-Statistics-Report.pdf http://www.courts.ca.gov/documents/2015-Court-Statistics-Rep... I'm looking at page 47 (72 in the pdf). ~13% of felonies that make it to court result in acquittal, dismissal or transfer. There are a lot of caveats, including but not limited to: this is only felony cases (there are about 4x as many misdemeanours as felonies, but I can't immediately see statistics for them); I don't know what transfer means. But even with those caveats, my current guess is that your father didn't see a representative sample.
  - whybroke 11y ago
    That's interesting. Yes my information is, in the end, anecdotal. It's good to get a concrete numbers (but note that transfer is not acquittal). Thanks for the adjustment.
  - dtech 11y ago
    I believe transfer means that the case goes to another court, so depending on the percentage of cases transferred the actual conviction rate could still be quite high.
    - snarfy 11y ago
      Yes, including transfer in those numbers is misleading and dubious.
  - jellicle 11y ago
    So you're saying the conviction rate is between 87% and 100%.
    - yesiamyourdad 11y ago
      Exactly. The phrase in question was "essentially guaranteed of being convinced". Even Vegas gives better odds than 87%.
  - 11y ago
- hobbyjogger 11y ago
  Caveat: this study is for federal courts (which tend to see more serious crimes) but the data on acquittal rates is nowhere near what you are suggesting. http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1230&context=law_lawreview http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article... 55% conviction rates when tried in front of a judge, 84% conviction rates when tried in front of a jury. Acquittal rates will also tend fall as the gravity of the charges/court falls--but a lot of that is explained by the prosecution being far more ready to drop charges (or choose not to charge at all) in close cases when the crime is seen as less serious. A marginal murder case, for example, might be pursued even though a just as marginal shoplifting case would not be.
  - whybroke 11y ago
    Be aware also that federal courts only hear a very tiny percentage of criminal cases.
    - hobbyjogger 11y ago
      Sure, but again "conviction rate" is too coarse of a metric to make any meaningful conclusions about guilt/innocence or why the rate is so high. Japan, for example, has a 99% conviction rate but Ramseyer attributes much of that to the fact that prosecution offices are so understaffed and under-resourced there that they can manage to bring only the strongest of cases.[1] So you're much better off in a place like that because if you have a marginal case you won't even have to go to trial to be acquitted--the charges will be dropped beforehand. [1] http://legalombudsman.up.seesaa.net/image/199820Why20is20the20Japanese20Conviction20Rate20So20High.pdf http://legalombudsman.up.seesaa.net/image/199820Why20is20the...
      - whybroke 11y ago
        Very true. It alone tells us nothing except that, not knowing the cause of this conviction rate, you must accept any plea bargain whatever it is. To get a better understanding we would have to ask whether persons convicted under even the most careful trials (death penalty cases) are later exonerated eg https://www.aclu.org/dna-testing-and-death-penalty https://www.aclu.org/dna-testing-and-death-penalty We might also ask whether jurors enter the courtroom convinced the defendant is guilty before the trial even starts. Even here it might a coincidence: the defendants are always guilty anyway so the prejudice of the juries is irrelevant. Or we have to convince ourselves that prejudiced jurors always become open minded somewhere between voir dire and jury instruction. I suggest the later is not too believable and the former outright disturbing. We would have to explain why federal courts have significantly lower conviction rates than lower courts by saying something like lower court prosecutors prepare their cases better or federal judges are significantly more lenient. Intuitively neither explanation seems very satisfying. Finally we'd have to explain how charges that a DA is willing to drop during a plea bargain are then proven beyond a reasonable doubt at trial and explain how such a system, however money saving, has anything to do with justice. Ideally, given that the number of innocent people jailed is not zero, we'd determine objectively and openly what the number is and whether we are satisfied with that rate.
netcan 11y ago
I think we also need to put this in historical context. I remember a few years ago an Australia jailed for drugs in Indonesia explaining that she pleaded guilty while maintaining innocence in Australian media because "this is how it works here." IE, the system expects you to admit guilt and apologize, else face a much worse outcome. I thought "That's how it works everywhere." This is not just across countries, it's across time. Confession has almost always been a part of the legal process. It's been necessary for mercy (plea bargain) and it's been extracted through torture, manipulation and any other means possible. Nearly every witch during the English witch hunts pleaded guilty and grassed on other witches. I suspect that the same thing was going in the squares of Jericho 400 generations ago. The concept of a trial where the accused defends, prosecutors accuse and the juries or judges decide is an idealization and/or a back-up plan. Even if we wanted to do this in all cases, we couldn't afford to. Modern judicial processes are too expenses to be used in all but a minority of cases. I don't think we can fix this wholesale at this point.
- nefitty 11y ago
  grass, noun (PERSON): UK slang a person, usually a criminal, who tells the police about other criminals' activities
  - netcan 11y ago
    Mildly amused at being subtitled.
    - balabaster 11y ago
      Are those subtitles?! https://www.youtube.com/watch?v=_WS65tPb2Cs https://www.youtube.com/watch?v=_WS65tPb2Cs ;)
- graycat 11y ago
  > I don't think we can fix this wholesale at this point Fix: Put me on the jury. E.g., the OP mentions that at the start of a trial, the judge can issue an "ethical rule order" which says that the prosecutor and police must provide to the defense all evidence that might help the accused. No ethical rule order? With me on the jury, tough to get a conviction. Prosecutor offered the accused a plea bargain but now wants to convict of a much more serious crime? Nope: On the jury, I won't convict of anything more serious than the plea bargain offer. Prosecutor presents evidence from the police lab? I will have to work really hard not to LOL. Prosecutor presents DNA evidence? Just shake my head and know that the chances of that evidence being correct are zip, zilch, and zero. Prosecutor talks about probabilities? Accused goes free. Even if 20 million people have jaywalked, even if from a simple random sample 99 44/100% of people have jaywalked, that still is zip, zilch, and zero evidence that the accused jaywalked. Police give testimony? Ha! In practice the police are perfectly free to lie under oath without any risk of being accused of perjury. Ignore all testimony of police. E.g., police found drugs in the accused car? Might have been planted by the police. Maybe the situation is just that the accused had some cash and the police just wanted to steal it. Can't trust the police. Accused is poor? Police love to go after poor people, guilty or not.
rbanffy 11y ago
If there is 1% chance of losing something of infinite value, 5 years is a bargain.
Chathamization 11y ago
Plea bargaining should be illegal. It creates a situation where the sentence isn't connected to one's guilt or danger to society, but rather to one's ability to judge their chances in court and get a good deal for themselves. If someone is a genuine threat to society, then shouldn't get out of prison while they're still a danger just because they saw a deal as beneficial and decided to take it. If someone's innocent, they shouldn't be given an incentive (threatened) to say they're guilty. We also wouldn't have the situation where prosecutors let wealthy and influential people off the hook and then later claim, "hey, it was the best plea deal we could get."
cxseven 11y ago
Not only do the accused have to face the possible penalty of a conviction, they also have to face the penalty of mounting a defense. Public defenders are so swamped that the cost of a competent defense would almost surely ruin the average family. In other words, if you don't take the plea deal, you're punished whether you're guilty or innocent.

whybroke 11y ago

Just FYI, in the 25 years and hundreds of cases my father saw in criminal court, only one was _not_ convicted: If you end up in front of a criminal judge (at least in California) you are essentially guaranteed of being convinced. There was one death penalty case he saw in that time and while conviction was, as always a certainty, a separate hearing decides "special circumstances" (execution) or just life in prison. To "help the judge make the right decision" the court room was packed to overflowing with a silent audience who obviously universally wanted the death penalty. So two defendants were sentenced to death for a single murder that day.

jacquesm 11y ago
> 25 years and hundreds of cases my father saw in criminal court, only one was _not_ convicted That seems very wrong.
- hawkice 11y ago
  If only because over 25 years surely he would have made it into the thousands of cases, unless he's doing less than one a week.
- Tomte 11y ago
  Or very right.
- whybroke 11y ago
  I agree. By the way, the single case that did not end in conviction was of a black preacher accused of child molestation who had an all black jury. And I'll bet most people reading this, trained by tv media's spectacular "everyone is guilty", are instantly and irreversibly convinced he actually was guilty just based on that one above sentence. But if you don't believe me (as you obviously do not) please do take 5 minutes to call a random criminal defense attorney in LA and ask the conviction rate once the defendant enters a not guilty plea.
  - Lawtonfogle 11y ago
    Last time I sat on a jury, before the evidence was all presented and before the judge even read the law (happens after all the evidence is presented, where the judge reads what the law actually is and explains things like how sure you need to be to find in favor of one party or the other), I heard jurors mention they already had their mind made up. They literally didn't even know what the crime actually was and were already ready to convict. It made me realize I never want to go before a jury if I'm innocent (not sure if a judge is better or not, haven't experience on that end).
  - LordKano 11y ago
    On one occasion, when I was in Jr High School, I was sent to the Principal's office. The assistant Principal started discussing my punishment and I chimed in that I didn't do what I was accused of doing. He said that the teacher wouldn't have used her time to send me to the office if I hadn't done what she said I did. I said that the reason we have trials is because sometimes the authorities make mistakes. He looked at me as if I had spoken to him in a foreign language.
philh 11y ago
> If you end up in front of a criminal judge (at least in California) you are essentially guaranteed of being convinced. That seems untrue. http://www.courts.ca.gov/documents/2015-Court-Statistics-Report.pdf http://www.courts.ca.gov/documents/2015-Court-Statistics-Rep... I'm looking at page 47 (72 in the pdf). ~13% of felonies that make it to court result in acquittal, dismissal or transfer. There are a lot of caveats, including but not limited to: this is only felony cases (there are about 4x as many misdemeanours as felonies, but I can't immediately see statistics for them); I don't know what transfer means. But even with those caveats, my current guess is that your father didn't see a representative sample.
- whybroke 11y ago
  That's interesting. Yes my information is, in the end, anecdotal. It's good to get a concrete numbers (but note that transfer is not acquittal). Thanks for the adjustment.
- dtech 11y ago
  I believe transfer means that the case goes to another court, so depending on the percentage of cases transferred the actual conviction rate could still be quite high.
  - snarfy 11y ago
    Yes, including transfer in those numbers is misleading and dubious.
- jellicle 11y ago
  So you're saying the conviction rate is between 87% and 100%.
  - yesiamyourdad 11y ago
    Exactly. The phrase in question was "essentially guaranteed of being convinced". Even Vegas gives better odds than 87%.
- 11y ago
hobbyjogger 11y ago
Caveat: this study is for federal courts (which tend to see more serious crimes) but the data on acquittal rates is nowhere near what you are suggesting. http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1230&context=law_lawreview http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article... 55% conviction rates when tried in front of a judge, 84% conviction rates when tried in front of a jury. Acquittal rates will also tend fall as the gravity of the charges/court falls--but a lot of that is explained by the prosecution being far more ready to drop charges (or choose not to charge at all) in close cases when the crime is seen as less serious. A marginal murder case, for example, might be pursued even though a just as marginal shoplifting case would not be.
- whybroke 11y ago
  Be aware also that federal courts only hear a very tiny percentage of criminal cases.
  - hobbyjogger 11y ago
    Sure, but again "conviction rate" is too coarse of a metric to make any meaningful conclusions about guilt/innocence or why the rate is so high. Japan, for example, has a 99% conviction rate but Ramseyer attributes much of that to the fact that prosecution offices are so understaffed and under-resourced there that they can manage to bring only the strongest of cases.[1] So you're much better off in a place like that because if you have a marginal case you won't even have to go to trial to be acquitted--the charges will be dropped beforehand. [1] http://legalombudsman.up.seesaa.net/image/199820Why20is20the20Japanese20Conviction20Rate20So20High.pdf http://legalombudsman.up.seesaa.net/image/199820Why20is20the...
    - whybroke 11y ago
      Very true. It alone tells us nothing except that, not knowing the cause of this conviction rate, you must accept any plea bargain whatever it is. To get a better understanding we would have to ask whether persons convicted under even the most careful trials (death penalty cases) are later exonerated eg https://www.aclu.org/dna-testing-and-death-penalty https://www.aclu.org/dna-testing-and-death-penalty We might also ask whether jurors enter the courtroom convinced the defendant is guilty before the trial even starts. Even here it might a coincidence: the defendants are always guilty anyway so the prejudice of the juries is irrelevant. Or we have to convince ourselves that prejudiced jurors always become open minded somewhere between voir dire and jury instruction. I suggest the later is not too believable and the former outright disturbing. We would have to explain why federal courts have significantly lower conviction rates than lower courts by saying something like lower court prosecutors prepare their cases better or federal judges are significantly more lenient. Intuitively neither explanation seems very satisfying. Finally we'd have to explain how charges that a DA is willing to drop during a plea bargain are then proven beyond a reasonable doubt at trial and explain how such a system, however money saving, has anything to do with justice. Ideally, given that the number of innocent people jailed is not zero, we'd determine objectively and openly what the number is and whether we are satisfied with that rate.

netcan 11y ago

I think we also need to put this in historical context. I remember a few years ago an Australia jailed for drugs in Indonesia explaining that she pleaded guilty while maintaining innocence in Australian media because "this is how it works here." IE, the system expects you to admit guilt and apologize, else face a much worse outcome. I thought "That's how it works everywhere." This is not just across countries, it's across time. Confession has almost always been a part of the legal process. It's been necessary for mercy (plea bargain) and it's been extracted through torture, manipulation and any other means possible. Nearly every witch during the English witch hunts pleaded guilty and grassed on other witches. I suspect that the same thing was going in the squares of Jericho 400 generations ago. The concept of a trial where the accused defends, prosecutors accuse and the juries or judges decide is an idealization and/or a back-up plan. Even if we wanted to do this in all cases, we couldn't afford to. Modern judicial processes are too expenses to be used in all but a minority of cases. I don't think we can fix this wholesale at this point.

nefitty 11y ago
grass, noun (PERSON): UK slang a person, usually a criminal, who tells the police about other criminals' activities
- netcan 11y ago
  Mildly amused at being subtitled.
  - balabaster 11y ago
    Are those subtitles?! https://www.youtube.com/watch?v=_WS65tPb2Cs https://www.youtube.com/watch?v=_WS65tPb2Cs ;)
graycat 11y ago
> I don't think we can fix this wholesale at this point Fix: Put me on the jury. E.g., the OP mentions that at the start of a trial, the judge can issue an "ethical rule order" which says that the prosecutor and police must provide to the defense all evidence that might help the accused. No ethical rule order? With me on the jury, tough to get a conviction. Prosecutor offered the accused a plea bargain but now wants to convict of a much more serious crime? Nope: On the jury, I won't convict of anything more serious than the plea bargain offer. Prosecutor presents evidence from the police lab? I will have to work really hard not to LOL. Prosecutor presents DNA evidence? Just shake my head and know that the chances of that evidence being correct are zip, zilch, and zero. Prosecutor talks about probabilities? Accused goes free. Even if 20 million people have jaywalked, even if from a simple random sample 99 44/100% of people have jaywalked, that still is zip, zilch, and zero evidence that the accused jaywalked. Police give testimony? Ha! In practice the police are perfectly free to lie under oath without any risk of being accused of perjury. Ignore all testimony of police. E.g., police found drugs in the accused car? Might have been planted by the police. Maybe the situation is just that the accused had some cash and the police just wanted to steal it. Can't trust the police. Accused is poor? Police love to go after poor people, guilty or not.

rbanffy 11y ago

If there is 1% chance of losing something of infinite value, 5 years is a bargain.

Chathamization 11y ago

Plea bargaining should be illegal. It creates a situation where the sentence isn't connected to one's guilt or danger to society, but rather to one's ability to judge their chances in court and get a good deal for themselves. If someone is a genuine threat to society, then shouldn't get out of prison while they're still a danger just because they saw a deal as beneficial and decided to take it. If someone's innocent, they shouldn't be given an incentive (threatened) to say they're guilty. We also wouldn't have the situation where prosecutors let wealthy and influential people off the hook and then later claim, "hey, it was the best plea deal we could get."

cxseven 11y ago

Not only do the accused have to face the possible penalty of a conviction, they also have to face the penalty of mounting a defense. Public defenders are so swamped that the cost of a competent defense would almost surely ruin the average family. In other words, if you don't take the plea deal, you're punished whether you're guilty or innocent.