9 ms·

This is a very common argument against juries, and I think it's one of the most powerful. Of course if you start to fill a jury with people competent in the are

by ue_ 10y ago

This is a very common argument against juries, and I think it's one of the most powerful. Of course if you start to fill a jury with people competent in the area being judged, you run different risks, such as bias within the field. And it's still not clear that it would help with delivering justice. But if we take the idea of a jury to be about judging by one's peers, it should be patently clear (heh) that the jury ought to be composed of the peers of the defendant. As to how that works when there's a corporation on trial, I don't know. I have the funny image of Google and Oracle being judged by Microsoft, IBM and the FSF in the jury box :)

meanduck 10y ago
What if jury_of_peers = random12(peers(defendant) + peers(prosecutor)) OR random6(peers(defendant)) + random6(peers(prosecutor)); peers(X) is declared/set by X. num(peers(X)) >= num_citizens/10 so that corrupt X cant set 12 yes men. This would incentivize X to be good to peers(X).
Avenger42 10y ago
Ignoring the idea of a corporation being judged by other corporations, the idea that "peers" should be judged more strictly (i.e., limited to "people in similar situations" monetarily, professionally, etc.), I feel like you would run a very clear risk of creating juries that function similarly to "good-old-boy networks" that are unwilling to judge too harshly.
- cannonpr 10y ago
  This risk is very evident in medical review boards for doctors and several similar boards for lawyers and judges across various countries.
- afthonos 10y ago
  That's the whole (original) point though. Historically, people would be taken away from people who had known them all their lives, be accused of something fantastical, and be condemned on the strength of he-said, she-said. In the specific case of the USA, a big complaint of colonists is that they would be whisked back to England for trial ("For depriving us in many cases, of the benefit of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences:") Peers are supposed to know you, your character, and your history. It's the only hope you have of being truly considered innocent until proven guilty. The default situation of a juror should be "I can't believe they did it; convince me", not "I have no idea". More important, if a jury starts at "I have no idea", they're realistically starting at "this person wouldn't be here if they hadn't done something; they're probably guilty".
  - notahacker 10y ago
    Historically, English juries have ranged from 12 people selected by the defendant to swear his innocence to 12 people claiming to have knowledge of the crime charged with investigating it. There's a reason that we've abandoned the pretence that preconceived opinions about a person's likelihood of committing the crime (and significant potential to gain or lose from returning a particular verdict) are an improvement in the fairness of the trial and retain juries only because they're not part of the state apparatus.
    - true_religion 10y ago
      > There's a reason that we've abandoned the pretence that preconceived opinions about a person's likelihood of committing the crime What is the reason?
  - dpark 10y ago
    > Peers are supposed to know you, your character, and your history. I don't think so. It's one thing to say that juries should be made of private citizens drawn from your nation/state/town. It's another thing entirely to say that juries should be made up of your buddies. Peer is not a synonym for neighbor. It means "equal".
    - PeterisP 10y ago
      They are just as supposed to know the victim, their character, and their history. There's no reason to suppose that a "close peer" jury would favor the defendant, it's just as likely to be the other way around.
      - dpark 10y ago
        On what is the claim that the jury is supposed to know any party based on? Edit: To be clear, I agree with your premise that knowing the defendant does not necessarily bias a jury in favor of the defendant. I don't think there's any reason to assume the jury should have any knowledge of anyone, though. In fact if you do, you'll probably get removed from the jury.
- RileyJames 10y ago
  Wouldn't a combination of both balance that issue?
- rayiner 10y ago
  Yes, a suit for fraud against a bank would have to have a jury composed of bankers, etc.
- emodendroket 10y ago
  That's a good point and probably illustrated by, say, the Jim Crow South.
dragonwriter 10y ago
> Of course if you start to fill a jury with people competent in the area being judged, you run different risks, such as bias within the field. A bigger problem is defining field boundaries and determine who gets to judge qualifications, both of which introduce points at which biases can be introduced systematically.
- jbooth 10y ago
  I'd settle for not actively weeding out experts as we do in the current voir dire process.
  - Avenger42 10y ago
    The issue with having experts on the jury is twofold: - If they're experts in the field, they may have had enough interaction with the case in question (or the people involved in the case) to have formed an opinion without having heard any testimony - Due to their expertise, the jury could decide "it's easier (more convenient, more likely to be correct, etc) to defer to the expert" and just vote whichever way the expert votes By not having experts, everyone makes their own decisions on how to weight different pieces of evidence, and no one's opinion drowns out anyone else's (at least, any more than would have happened anyway with that particular jury).
    - seanp2k2 10y ago
      I'd like to believe that that's true, but from what I've seen, it more often turns into a battle of personalities within and without the jury. "[they] look guilty!" or just thinking a person is slimy / deserving of punishment, among the less racist reasons.
  - dragonwriter 10y ago
    Eliminating (or reducing the number of) peremptory challenges might go along way to achieving this, domain expertise itself usually will not support a dismissal for cause. (Though it might be an earlier link in a chain of questioning that reveals a cause for dismissal, but that's perfectly legitimate.)
ISL 10y ago
I once espoused a similar opinion, but have since changed my mind. I'm a physicist, and once expressed to a judge I had met on the trail that I wished I could be judged by my academic peers. It was my belief that they would be more receptive to logical argument, understanding in their analysis, and more committed to fundamental principles. The judge was visibly surprised, but said little. What later changed my mind was the realization that our society is a human one, and that humanity has a huge spectrum of experience. A group of physicists may not understand something about the world that others do. Furthermore, any select group of citizens will differ in belief somewhat from the interests of society at large. But do I want educated and principled jurors on any jury that judges me, ones with enough fortitude to mis-trial a jury or nullify a law if that's what is required? Damn straight. If the notion that your citizen-peers might not be informed troubles you, take time to help others form informed opinions.
- foldr 10y ago
  > I wished I could be judged by my academic peers. It was my belief that they would be more receptive to logical argument, understanding in their analysis, and more committed to fundamental principles. Have you met any academics?
  - ISL 10y ago
    Yes.
  - Cyph0n 10y ago
    Exactly this. You would be surprised how petty and subjective academics are in practice. There is a reason why everything is done through committees in academia.
    - georgestephanis 10y ago
      To be fair, a jury is a committee.
    - rhizome 10y ago
      You would be surprised how petty and subjective academics are in practice. Sayre's Law[1] was paraphrased by Henry Kissinger as, "Academic politics are so vicious because the stakes are so small." 1. https://en.wikipedia.org/wiki/Sayre's_law https://en.wikipedia.org/wiki/Sayre's_law
rayiner 10y ago
Would a jury of technically-minded people have helped here? Put aside the natural bias that software developers would have to be skeptical of any claims against a company with which John Carmack is involved. Now, you're trying to sell the story that Code B is a copy of Code A, even though they don't look the same, because of fancy math. Is that harder to sell to a jury of software developers than a jury of ordinary people, or easier? As someone who knows you can identify similarities between seemingly dissimilar text using mathematical analysis, I feel like it'd be easier to convince me that there was "non-literal copying."
- TeMPOraL 10y ago
  I feel if the devs were worth any salt, they'd clearly smell the bullshit. Just because you can do fancy math and turn one thing into another, doesn't mean it's what actually happened. Experienced developers should also easily recognize that two independently developed codebases may end up pretty similar at places simply because of the problem domain. There's for instance only so many ways you can structure the rendering code in your game efficiently.
  - pmoriarty 10y ago
    Then there's the (controversial) option of jury nullification.[1] A juror may vote not guilty even if they believe the defendant broke the law. They could do this, for example, if they believe the law itself is not just or not legitimate, as could be the case if they thought that software patents or copyrights were illegitimate. [1] - https://en.wikipedia.org/wiki/Jury_nullification https://en.wikipedia.org/wiki/Jury_nullification
mlmlmasd 10y ago
I would pay to see Google, Oracle, Microsoft, etc be judged by FSF.
protomyth 10y ago
> Of course if you start to fill a jury with people competent in the area being judged, you run different risks, such as bias within the field. And it's still not clear that it would help with delivering justice. If you've ever worked at a company with an "problematic" architectural committee you might get a little scared of having them as a jury.
- EdHominem 10y ago
  That's because they've been given the position and it's gone to their heads. If new architecture had to be reviewed by a representative sampling of your workmates, randomly selected for each review, I don't think you'd have such issues.
emodendroket 10y ago
I think your example illustrates clearly one problem with such a system, which is that it's ripe for conflict of interest.
simplicio 10y ago
I think even if the field had a strong bias, even one I disagreed with, I'd still prefer it. One of the frustrating things about the US court system is how unpredictable it is. At some points in working with IP and corporate law, I've found myself just wanting to know what the rules are, so I can go ahead and follow them. But way too often, I've had lawyers basically tell me that whether we should pursue something is basically a function of how much money we're willing to put into pursing it in court convolved with some vague probability function of how 12 random people will feel about how trustworthy our expert witness looks versus how the other guys. I'd gladly trade a more "just" system for a more predictable one.
fictioncircle 10y ago
> This is a very common argument against juries, and I think it's one of the most powerful. Of course if you start to fill a jury with people competent in the area being judged, you run different risks, such as bias within the field. And it's still not clear that it would help with delivering justice. True but at the same time nothing says its all or nothing. I really think there is an argument for cases like this to have ~4 people with degrees relevant to the case sitting on the jury which is likely enough to swing the jury's results if there is something that just wasn't communicated effectively or the issue being clouded by one party. Sure there might be bias in that case, but I don't think its particularly pronounced when a civil suit is ultimately decided by a majority.
shrewduser 10y ago
i think it wouldn't be hard to interpret 'jury of peers' as a jury of people made up of those in a particular area. i feel like we need to make allowances for specialised cases, in this circumstance you may as well be talking in german and expect english speakers to understand what's going on.

by ue_ 10y ago

meanduck 10y ago

What if jury_of_peers = random12(peers(defendant) + peers(prosecutor)) OR random6(peers(defendant)) + random6(peers(prosecutor)); peers(X) is declared/set by X. num(peers(X)) >= num_citizens/10 so that corrupt X cant set 12 yes men. This would incentivize X to be good to peers(X).

Avenger42 10y ago

Ignoring the idea of a corporation being judged by other corporations, the idea that "peers" should be judged more strictly (i.e., limited to "people in similar situations" monetarily, professionally, etc.), I feel like you would run a very clear risk of creating juries that function similarly to "good-old-boy networks" that are unwilling to judge too harshly.

cannonpr 10y ago
This risk is very evident in medical review boards for doctors and several similar boards for lawyers and judges across various countries.
afthonos 10y ago
That's the whole (original) point though. Historically, people would be taken away from people who had known them all their lives, be accused of something fantastical, and be condemned on the strength of he-said, she-said. In the specific case of the USA, a big complaint of colonists is that they would be whisked back to England for trial ("For depriving us in many cases, of the benefit of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences:") Peers are supposed to know you, your character, and your history. It's the only hope you have of being truly considered innocent until proven guilty. The default situation of a juror should be "I can't believe they did it; convince me", not "I have no idea". More important, if a jury starts at "I have no idea", they're realistically starting at "this person wouldn't be here if they hadn't done something; they're probably guilty".
- notahacker 10y ago
  Historically, English juries have ranged from 12 people selected by the defendant to swear his innocence to 12 people claiming to have knowledge of the crime charged with investigating it. There's a reason that we've abandoned the pretence that preconceived opinions about a person's likelihood of committing the crime (and significant potential to gain or lose from returning a particular verdict) are an improvement in the fairness of the trial and retain juries only because they're not part of the state apparatus.
  - true_religion 10y ago
    > There's a reason that we've abandoned the pretence that preconceived opinions about a person's likelihood of committing the crime What is the reason?
- dpark 10y ago
  > Peers are supposed to know you, your character, and your history. I don't think so. It's one thing to say that juries should be made of private citizens drawn from your nation/state/town. It's another thing entirely to say that juries should be made up of your buddies. Peer is not a synonym for neighbor. It means "equal".
  - PeterisP 10y ago
    They are just as supposed to know the victim, their character, and their history. There's no reason to suppose that a "close peer" jury would favor the defendant, it's just as likely to be the other way around.
    - dpark 10y ago
      On what is the claim that the jury is supposed to know any party based on? Edit: To be clear, I agree with your premise that knowing the defendant does not necessarily bias a jury in favor of the defendant. I don't think there's any reason to assume the jury should have any knowledge of anyone, though. In fact if you do, you'll probably get removed from the jury.
RileyJames 10y ago
Wouldn't a combination of both balance that issue?
rayiner 10y ago
Yes, a suit for fraud against a bank would have to have a jury composed of bankers, etc.
emodendroket 10y ago
That's a good point and probably illustrated by, say, the Jim Crow South.

dragonwriter 10y ago

> Of course if you start to fill a jury with people competent in the area being judged, you run different risks, such as bias within the field. A bigger problem is defining field boundaries and determine who gets to judge qualifications, both of which introduce points at which biases can be introduced systematically.

jbooth 10y ago
I'd settle for not actively weeding out experts as we do in the current voir dire process.
- Avenger42 10y ago
  The issue with having experts on the jury is twofold: - If they're experts in the field, they may have had enough interaction with the case in question (or the people involved in the case) to have formed an opinion without having heard any testimony - Due to their expertise, the jury could decide "it's easier (more convenient, more likely to be correct, etc) to defer to the expert" and just vote whichever way the expert votes By not having experts, everyone makes their own decisions on how to weight different pieces of evidence, and no one's opinion drowns out anyone else's (at least, any more than would have happened anyway with that particular jury).
  - seanp2k2 10y ago
    I'd like to believe that that's true, but from what I've seen, it more often turns into a battle of personalities within and without the jury. "[they] look guilty!" or just thinking a person is slimy / deserving of punishment, among the less racist reasons.
- dragonwriter 10y ago
  Eliminating (or reducing the number of) peremptory challenges might go along way to achieving this, domain expertise itself usually will not support a dismissal for cause. (Though it might be an earlier link in a chain of questioning that reveals a cause for dismissal, but that's perfectly legitimate.)

ISL 10y ago

I once espoused a similar opinion, but have since changed my mind. I'm a physicist, and once expressed to a judge I had met on the trail that I wished I could be judged by my academic peers. It was my belief that they would be more receptive to logical argument, understanding in their analysis, and more committed to fundamental principles. The judge was visibly surprised, but said little. What later changed my mind was the realization that our society is a human one, and that humanity has a huge spectrum of experience. A group of physicists may not understand something about the world that others do. Furthermore, any select group of citizens will differ in belief somewhat from the interests of society at large. But do I want educated and principled jurors on any jury that judges me, ones with enough fortitude to mis-trial a jury or nullify a law if that's what is required? Damn straight. If the notion that your citizen-peers might not be informed troubles you, take time to help others form informed opinions.

foldr 10y ago
> I wished I could be judged by my academic peers. It was my belief that they would be more receptive to logical argument, understanding in their analysis, and more committed to fundamental principles. Have you met any academics?
- ISL 10y ago
  Yes.
- Cyph0n 10y ago
  Exactly this. You would be surprised how petty and subjective academics are in practice. There is a reason why everything is done through committees in academia.
  - georgestephanis 10y ago
    To be fair, a jury is a committee.
  - rhizome 10y ago
    You would be surprised how petty and subjective academics are in practice. Sayre's Law[1] was paraphrased by Henry Kissinger as, "Academic politics are so vicious because the stakes are so small." 1. https://en.wikipedia.org/wiki/Sayre's_law https://en.wikipedia.org/wiki/Sayre's_law

rayiner 10y ago

Would a jury of technically-minded people have helped here? Put aside the natural bias that software developers would have to be skeptical of any claims against a company with which John Carmack is involved. Now, you're trying to sell the story that Code B is a copy of Code A, even though they don't look the same, because of fancy math. Is that harder to sell to a jury of software developers than a jury of ordinary people, or easier? As someone who knows you can identify similarities between seemingly dissimilar text using mathematical analysis, I feel like it'd be easier to convince me that there was "non-literal copying."

TeMPOraL 10y ago
I feel if the devs were worth any salt, they'd clearly smell the bullshit. Just because you can do fancy math and turn one thing into another, doesn't mean it's what actually happened. Experienced developers should also easily recognize that two independently developed codebases may end up pretty similar at places simply because of the problem domain. There's for instance only so many ways you can structure the rendering code in your game efficiently.
- pmoriarty 10y ago
  Then there's the (controversial) option of jury nullification.[1] A juror may vote not guilty even if they believe the defendant broke the law. They could do this, for example, if they believe the law itself is not just or not legitimate, as could be the case if they thought that software patents or copyrights were illegitimate. [1] - https://en.wikipedia.org/wiki/Jury_nullification https://en.wikipedia.org/wiki/Jury_nullification

mlmlmasd 10y ago

I would pay to see Google, Oracle, Microsoft, etc be judged by FSF.

protomyth 10y ago

> Of course if you start to fill a jury with people competent in the area being judged, you run different risks, such as bias within the field. And it's still not clear that it would help with delivering justice. If you've ever worked at a company with an "problematic" architectural committee you might get a little scared of having them as a jury.

EdHominem 10y ago
That's because they've been given the position and it's gone to their heads. If new architecture had to be reviewed by a representative sampling of your workmates, randomly selected for each review, I don't think you'd have such issues.

emodendroket 10y ago

I think your example illustrates clearly one problem with such a system, which is that it's ripe for conflict of interest.

simplicio 10y ago

I think even if the field had a strong bias, even one I disagreed with, I'd still prefer it. One of the frustrating things about the US court system is how unpredictable it is. At some points in working with IP and corporate law, I've found myself just wanting to know what the rules are, so I can go ahead and follow them. But way too often, I've had lawyers basically tell me that whether we should pursue something is basically a function of how much money we're willing to put into pursing it in court convolved with some vague probability function of how 12 random people will feel about how trustworthy our expert witness looks versus how the other guys. I'd gladly trade a more "just" system for a more predictable one.

fictioncircle 10y ago

> This is a very common argument against juries, and I think it's one of the most powerful. Of course if you start to fill a jury with people competent in the area being judged, you run different risks, such as bias within the field. And it's still not clear that it would help with delivering justice. True but at the same time nothing says its all or nothing. I really think there is an argument for cases like this to have ~4 people with degrees relevant to the case sitting on the jury which is likely enough to swing the jury's results if there is something that just wasn't communicated effectively or the issue being clouded by one party. Sure there might be bias in that case, but I don't think its particularly pronounced when a civil suit is ultimately decided by a majority.

shrewduser 10y ago

i think it wouldn't be hard to interpret 'jury of peers' as a jury of people made up of those in a particular area. i feel like we need to make allowances for specialised cases, in this circumstance you may as well be talking in german and expect english speakers to understand what's going on.