5 ms·

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

by d_t_w 11y ago

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.

madaxe_again 11y ago
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.
- d_t_w 11y ago
  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.
- michaelt 11y ago
  If an oil company CEO on trial for a crime got tried by a jury of other oil company CEOs, I agree the conviction rate would drop. I'm not sure how much it would improve the outcomes for society, though.
  - madaxe_again 11y ago
    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.
    - voxic11 11y ago
      Why would they? Jury nullification is legal.
- ckozlowski 11y ago
  "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.
  - astrafoo 11y ago
    So a jury being lied to by the state attorney is better than a jury which did their own research (with all the faults this includes)?
    - ckozlowski 11y ago
      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.
      - astrafoo 11y ago
        > That's the job of the defense 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. No defense involved.
- newjersey 11y ago
  Moreover, jury selection is a touchy subject itself. http://www.nolo.com/legal-encyclopedia/discrimination-jury-selection.html http://www.nolo.com/legal-encyclopedia/discrimination-jury-s... > 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.
  - ckozlowski 11y ago
    That the defense didn't object to this, or ask the alternate ("Does anyone in here intrinsically trust the police?") perplexes me.
    - newjersey 11y ago
      > 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.
      - mszkoda 11y ago
        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] [1]http://www.pacode.com/secure/data/234/chapter6/s632.html http://www.pacode.com/secure/data/234/chapter6/s632.html

by d_t_w 11y ago

madaxe_again 11y ago

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.

d_t_w 11y ago
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.
michaelt 11y ago
If an oil company CEO on trial for a crime got tried by a jury of other oil company CEOs, I agree the conviction rate would drop. I'm not sure how much it would improve the outcomes for society, though.
- madaxe_again 11y ago
  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.
  - voxic11 11y ago
    Why would they? Jury nullification is legal.
ckozlowski 11y ago
"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.
- astrafoo 11y ago
  So a jury being lied to by the state attorney is better than a jury which did their own research (with all the faults this includes)?
  - ckozlowski 11y ago
    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.
    - astrafoo 11y ago
      > That's the job of the defense 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. No defense involved.
newjersey 11y ago
Moreover, jury selection is a touchy subject itself. http://www.nolo.com/legal-encyclopedia/discrimination-jury-selection.html http://www.nolo.com/legal-encyclopedia/discrimination-jury-s... > 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.
- ckozlowski 11y ago
  That the defense didn't object to this, or ask the alternate ("Does anyone in here intrinsically trust the police?") perplexes me.
  - newjersey 11y ago
    > 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.
    - mszkoda 11y ago
      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] [1]http://www.pacode.com/secure/data/234/chapter6/s632.html http://www.pacode.com/secure/data/234/chapter6/s632.html