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In jury trials, prosecutors have not only a huge advantage, but also a perverse incentive to lie and cheat. They know that the jurors are not going to be experi

In jury trials, prosecutors have not only a huge advantage, but also a perverse incentive to lie and cheat. They know that the jurors are not going to be experienced enough in criminal law to sniff out procedural bullshit or "expert witness" gambits or bullshit science, much like a novice is unlikely to win at poker against a professional player. And therein lies the problem. In every trial, you have professionals (lawyers) playing against novices (jurors), and since the prosecution automatically gains special believability status in the eyes of jurors, they hold the upper hand. To make matters worse, prosecutors have the automatic full cooperation of police, whereas the defense has no such guarantees. And since prosecutors are gauged by their wins, and high ranking prosecutors are the most likely to be voted/appointed into coveted judge seats, there is a perverse incentive to prosecute the innocent. But since the system operates on the fiction that all members are equal (much like all sides are equal in a game of poker), it's easy to brush aside the reality that they are most certainly not equal, and that the more experienced has such a huge advantage that it's laughable to even call it fair. In a system with professional judges, that wouldn't fly, as the trained judge would see through their shenanigans and rebuke them.

wonderwonder 8y ago
Further compounding this is the sheer amount of work and cases public defenders have to contend with, they are over whelmed. In New Orleans, they have 50 public defenders for 22,000 cases, to the point where they are refusing to represent on certain felony cases. Which means the accused gets to hang out in jail. Article is a quick read and does a good job explaining the mindest of people who plead guilty to crimes they did not commit: https://www.cbsnews.com/news/inside-new-orleans-public-defenders-decision-to-refuse-felony-cases/ https://www.cbsnews.com/news/inside-new-orleans-public-defen...
- Someone1234 8y ago
  This is why you should avoid waiving your right to a speedy trial when you have a public defender. While in THEORY it should give them more time to prepare, more than likely you'll get 20~30 minutes of prep time either way on the day of your trial but spend longer in jail just waiting. If you have a private defender, it might make a lot of sense to waive, since they can use that additional time to assemble enough evidence for either court or a better deal. But in modern US "justice" even if you're innocent expect to take a plea. That's just how it works now.
  - defen 8y ago
    > This is why you should avoid waiving your right to a speedy trial when you have a public defender. That makes sense, but there's a coordination problem. If everyone invoked their right to a speedy trial, the system would indeed collapse under its own weight. But the first set of people to use that strategy would be at a disadvantage since their own lawyers would have less time to prepare. Everyone wants to take advantage of this right but no one wants to be the sacrificial lamb, especially since there's not even a guarantee that enough other people will follow suit (your "sacrifice" might really be for naught).
    - Fnoord 8y ago
      Perfect example of large scale prisoner's dilemma (with more than 2 prisoners).
    - horsawlarway 8y ago
      I think his whole point is that the public defender only has time to put in ~30 minutes either way. So why hang out in jail for the days the public defender is just going to spend working on other cases?
    - gamblor956 8y ago
      That makes sense, but there's a coordination problem. If everyone invoked their right to a speedy trial, the system would indeed collapse under its own weight. Yes, and it is glorious...from the perspective of a defense lawyer. Because as soon as the DA realizes they can't just railroad defendants, they start getting realistic about the plea bargains they offer and which cases to triage due to lack of evidence. I've seen it happen before (the entire local defense bar refused to wave speedy trial rights) and the DA held out for about 1.5 days before buckling.
      - defen 8y ago
        In practice, how is a "speedy trial" defined?
  - idontpost 8y ago
staticautomatic 8y ago
I agree with some of your points but if you think judges are the answer I'd guess you haven't met many judges.
- gamblor956 8y ago
  I agree. Juries are far better at understanding science than judges. The only cases I ever lost were bench trials (before judges, no juries) where the judges refused to accept scientific challenges (backed by actual research) to the prosecution's pseudo-science evidence.
  - staticautomatic 8y ago
    Yeah. Jury consultant here. Juries definitely have their problems but a lot of the scary bad things I've seen happen in trials have stemmed from bad rulings by the judge. I'm reminded of a case I had where the judge refused to DQ an expert economist who produced a damages model with a p value of 0.5 (yeah, not 0.05). Basically all the defendants had to settle because it had the judge's imprimatur and they wouldn't be able to convince the jurors it was bullshit. It's easy to blame juries when there are bad outcomes but a lot of the time their bad decisions are precipitated by bad rulings.
pmoriarty 8y ago
"In jury trials, prosecutors have not only a huge advantage, but also a perverse incentive to lie and cheat." The prosecutorial advantage is even bigger in grand juries (ie. the juries that decide whether the suspect will be charged or "indicted" with a crime), where only the prosecution's side is heard and the standard used to indict is much lower than the "beyond a reasonable doubt" standard used in a real trial. The running joke being that a good prosecutor could indict a ham sandwich. It's after indictment but before trial that the prosecution pressures the defendant to take a plea deal (ie. plead guilty to reduced charges) to avoid risking going to jail for a much longer time and bearing the insane expenses of a trial. To my memory, in the US only something like 6% of indictments actually go to trial, where (as you point out) the prosecutors have a huge advantage. 94% of the time inicted defendants plead guilty and never actually get a trial. In some cases, like with Aaron Swartz, they commit suicide. So for the overwhelming majority of cases, it's not what happens at trial that matters (as they never get a trial), but rather what happens in the even more skewed for prosecutorial advantage grand jury that matters -- a grand jury where defendants and defense attorneys are not even present and where their side is not heard.
- gamblor956 8y ago
  Former public defender here. >90% percent of defendants plead guilty before trial because 90%+ of defendants are actually guilty of the crimes they've been charged with. In most cases, the defendants accept their guilt and are simply trying to get the best deal (i.e., least prison/jail time) as they can.
  - metalens 8y ago
    >>90% percent of defendants plead guilty before trial because 90%+ of defendants are actually guilty of the crimes they've been charged with. In most cases, the defendants accept their guilt and are simply trying to get the best deal (i.e., least prison/jail time) as they can. Except that a disproportionate percentage of poor defendants (who can't afford expensive lawyers) plead guilty before trial because their overworked and underpaid public defenders advise them to. Logic is that pleading guilty before trial gets you a shorter sentence than going to trial. The alternative is going to trial and being incorrectly found guilty and getting a larger sentence for a crime you didn't commit (your public defender has limited time/resources to make a great case for you). The American Justice system is particularly unjust to the poor. Edited for clarity
Fezzik 8y ago
This is not really accurate - defendants have a right to a jury trial, a right that they can waive for the opportunity to have a bench trial (trying their case before a “professional judge”). The prosecution has zero say in whether or not a case is tried to jurors or a judge. The reason most defendants do not waive this right is because their odds of winning over/convincing a lay jury are much better than with a judge. At least according to any defense attorney I have talked with that is why.
- Amezarak 8y ago
  For some reason every time the topic comes up, people come out of the woodwork talking about how bad the jury system is for defendants, while ignoring this exact point: the defendant has a right to a jury trial, but he can waive it and have a bench trial instead. In fact, the state would much rather you waive your right to a jury trial since they’re more expensive and much more of a procedural drain on the court system. If you’re a defendant and you think you have a better shot with a jury, you choose a jury trial. If you think you have an unsympathetic but legally justified case, you pick a bench trial. Either way, it’s your choice, and I have difficulty understand how it could be inferior to a system where you’re deprived of the choice and subjected solely to the judgement of an unelected permanent bureaucracy. I can assure people that years of legal dedication and training and the connections to get a judgeship does not by any means mean that someone is a good judge, and I’m becoming increasing convinced it has a pernicious impact on the legal system as a whole.
refurb 8y ago
In a system with professional judges, that wouldn't fly, as the trained judge would see through their shenanigans and rebuke them. But professional judges oversee jury trials. I sat on an 8 week trial and the judge very tightly controls prosecutorial conduct, with usually the defense raising objections.
- kstenerud 8y ago
  No, by professional judge I mean in the German style, where the judges decide the verdict, are not elected, and must undergo 5 years of schooling and a one year apprenticeship, plus have a ton of legal work experience.
  - scott_s 8y ago
    More on the German style, "Land without Plea Bargaining: How the Germans Do It (1979)", https://news.ycombinator.com/item?id=5059044 https://news.ycombinator.com/item?id=5059044. Although I have read that they use plea bargaining more now. While the lens of the article is on plea bargaining, it gives a good overview of the German system.
  - gamblor956 8y ago
    The German style is horrible. Read the Metamorphosis by Kafka for a German perspective of their criminal justice system.
    - chmod775 8y ago
      A 1915 book created during a time when Germany had a justice system that has since been changed significantly at least twice? Also just from the plot summary I fail to see how it could even be relevant.
      - gamblor956 8y ago
        The German system's primary changes since Kafka's days were the introduction of US-style procedural protections. My point was that having the judge act as judge and jury in all cases is a worse option that having the option to use juries. (Also: Like Camus' The Stranger, Kafka's Metamorphosis is an extended metaphor, so a plot summary won't help much.)
Spooky23 8y ago
I disagree. I've served on 5 juries, and everyone had a fairly healthy questioning attitude towards both sides. There were acquittals in 3/5, mostly on the basis of the prosecution doing a poor job of questioning their police, or the police playing dumb for reasons unknown. In one case it was hard to acquit as I think the defendant committed a serious crime, but the prosecution case sucked. I'd love to see the differences between counties and type of defense representation and jury selection. How much of this is due to awful public defender practices or other abusive practices? The public defender is key as jury selection is critical.
ducktypegoose 8y ago
How the justice system is allowed to proceed with a farce in the way it is blows my mind. Like nobody's driving the bus, it's just a bunch of self-serving entities trying to get as much as they can for themselves. Prosecuting and defending seems like two sides of the same coin. There's no reason the roles of prosecutor, defender, and juror couldn't be assigned cases randomly from the same pool of lawyers. At least the perverse behavioral economics of the personal incentive game would be turned on its head.

wonderwonder 8y ago

Further compounding this is the sheer amount of work and cases public defenders have to contend with, they are over whelmed. In New Orleans, they have 50 public defenders for 22,000 cases, to the point where they are refusing to represent on certain felony cases. Which means the accused gets to hang out in jail. Article is a quick read and does a good job explaining the mindest of people who plead guilty to crimes they did not commit: https://www.cbsnews.com/news/inside-new-orleans-public-defenders-decision-to-refuse-felony-cases/ https://www.cbsnews.com/news/inside-new-orleans-public-defen...

Someone1234 8y ago
This is why you should avoid waiving your right to a speedy trial when you have a public defender. While in THEORY it should give them more time to prepare, more than likely you'll get 20~30 minutes of prep time either way on the day of your trial but spend longer in jail just waiting. If you have a private defender, it might make a lot of sense to waive, since they can use that additional time to assemble enough evidence for either court or a better deal. But in modern US "justice" even if you're innocent expect to take a plea. That's just how it works now.
- defen 8y ago
  > This is why you should avoid waiving your right to a speedy trial when you have a public defender. That makes sense, but there's a coordination problem. If everyone invoked their right to a speedy trial, the system would indeed collapse under its own weight. But the first set of people to use that strategy would be at a disadvantage since their own lawyers would have less time to prepare. Everyone wants to take advantage of this right but no one wants to be the sacrificial lamb, especially since there's not even a guarantee that enough other people will follow suit (your "sacrifice" might really be for naught).
  - Fnoord 8y ago
    Perfect example of large scale prisoner's dilemma (with more than 2 prisoners).
  - horsawlarway 8y ago
    I think his whole point is that the public defender only has time to put in ~30 minutes either way. So why hang out in jail for the days the public defender is just going to spend working on other cases?
  - gamblor956 8y ago
    That makes sense, but there's a coordination problem. If everyone invoked their right to a speedy trial, the system would indeed collapse under its own weight. Yes, and it is glorious...from the perspective of a defense lawyer. Because as soon as the DA realizes they can't just railroad defendants, they start getting realistic about the plea bargains they offer and which cases to triage due to lack of evidence. I've seen it happen before (the entire local defense bar refused to wave speedy trial rights) and the DA held out for about 1.5 days before buckling.
    - defen 8y ago
      In practice, how is a "speedy trial" defined?
- idontpost 8y ago

staticautomatic 8y ago

I agree with some of your points but if you think judges are the answer I'd guess you haven't met many judges.

gamblor956 8y ago
I agree. Juries are far better at understanding science than judges. The only cases I ever lost were bench trials (before judges, no juries) where the judges refused to accept scientific challenges (backed by actual research) to the prosecution's pseudo-science evidence.
- staticautomatic 8y ago
  Yeah. Jury consultant here. Juries definitely have their problems but a lot of the scary bad things I've seen happen in trials have stemmed from bad rulings by the judge. I'm reminded of a case I had where the judge refused to DQ an expert economist who produced a damages model with a p value of 0.5 (yeah, not 0.05). Basically all the defendants had to settle because it had the judge's imprimatur and they wouldn't be able to convince the jurors it was bullshit. It's easy to blame juries when there are bad outcomes but a lot of the time their bad decisions are precipitated by bad rulings.

pmoriarty 8y ago

"In jury trials, prosecutors have not only a huge advantage, but also a perverse incentive to lie and cheat." The prosecutorial advantage is even bigger in grand juries (ie. the juries that decide whether the suspect will be charged or "indicted" with a crime), where only the prosecution's side is heard and the standard used to indict is much lower than the "beyond a reasonable doubt" standard used in a real trial. The running joke being that a good prosecutor could indict a ham sandwich. It's after indictment but before trial that the prosecution pressures the defendant to take a plea deal (ie. plead guilty to reduced charges) to avoid risking going to jail for a much longer time and bearing the insane expenses of a trial. To my memory, in the US only something like 6% of indictments actually go to trial, where (as you point out) the prosecutors have a huge advantage. 94% of the time inicted defendants plead guilty and never actually get a trial. In some cases, like with Aaron Swartz, they commit suicide. So for the overwhelming majority of cases, it's not what happens at trial that matters (as they never get a trial), but rather what happens in the even more skewed for prosecutorial advantage grand jury that matters -- a grand jury where defendants and defense attorneys are not even present and where their side is not heard.

gamblor956 8y ago
Former public defender here. >90% percent of defendants plead guilty before trial because 90%+ of defendants are actually guilty of the crimes they've been charged with. In most cases, the defendants accept their guilt and are simply trying to get the best deal (i.e., least prison/jail time) as they can.
- metalens 8y ago
  >>90% percent of defendants plead guilty before trial because 90%+ of defendants are actually guilty of the crimes they've been charged with. In most cases, the defendants accept their guilt and are simply trying to get the best deal (i.e., least prison/jail time) as they can. Except that a disproportionate percentage of poor defendants (who can't afford expensive lawyers) plead guilty before trial because their overworked and underpaid public defenders advise them to. Logic is that pleading guilty before trial gets you a shorter sentence than going to trial. The alternative is going to trial and being incorrectly found guilty and getting a larger sentence for a crime you didn't commit (your public defender has limited time/resources to make a great case for you). The American Justice system is particularly unjust to the poor. Edited for clarity

Fezzik 8y ago

This is not really accurate - defendants have a right to a jury trial, a right that they can waive for the opportunity to have a bench trial (trying their case before a “professional judge”). The prosecution has zero say in whether or not a case is tried to jurors or a judge. The reason most defendants do not waive this right is because their odds of winning over/convincing a lay jury are much better than with a judge. At least according to any defense attorney I have talked with that is why.

Amezarak 8y ago
For some reason every time the topic comes up, people come out of the woodwork talking about how bad the jury system is for defendants, while ignoring this exact point: the defendant has a right to a jury trial, but he can waive it and have a bench trial instead. In fact, the state would much rather you waive your right to a jury trial since they’re more expensive and much more of a procedural drain on the court system. If you’re a defendant and you think you have a better shot with a jury, you choose a jury trial. If you think you have an unsympathetic but legally justified case, you pick a bench trial. Either way, it’s your choice, and I have difficulty understand how it could be inferior to a system where you’re deprived of the choice and subjected solely to the judgement of an unelected permanent bureaucracy. I can assure people that years of legal dedication and training and the connections to get a judgeship does not by any means mean that someone is a good judge, and I’m becoming increasing convinced it has a pernicious impact on the legal system as a whole.

refurb 8y ago

In a system with professional judges, that wouldn't fly, as the trained judge would see through their shenanigans and rebuke them. But professional judges oversee jury trials. I sat on an 8 week trial and the judge very tightly controls prosecutorial conduct, with usually the defense raising objections.

kstenerud 8y ago
No, by professional judge I mean in the German style, where the judges decide the verdict, are not elected, and must undergo 5 years of schooling and a one year apprenticeship, plus have a ton of legal work experience.
- scott_s 8y ago
  More on the German style, "Land without Plea Bargaining: How the Germans Do It (1979)", https://news.ycombinator.com/item?id=5059044 https://news.ycombinator.com/item?id=5059044. Although I have read that they use plea bargaining more now. While the lens of the article is on plea bargaining, it gives a good overview of the German system.
- gamblor956 8y ago
  The German style is horrible. Read the Metamorphosis by Kafka for a German perspective of their criminal justice system.
  - chmod775 8y ago
    A 1915 book created during a time when Germany had a justice system that has since been changed significantly at least twice? Also just from the plot summary I fail to see how it could even be relevant.
    - gamblor956 8y ago
      The German system's primary changes since Kafka's days were the introduction of US-style procedural protections. My point was that having the judge act as judge and jury in all cases is a worse option that having the option to use juries. (Also: Like Camus' The Stranger, Kafka's Metamorphosis is an extended metaphor, so a plot summary won't help much.)

Spooky23 8y ago

I disagree. I've served on 5 juries, and everyone had a fairly healthy questioning attitude towards both sides. There were acquittals in 3/5, mostly on the basis of the prosecution doing a poor job of questioning their police, or the police playing dumb for reasons unknown. In one case it was hard to acquit as I think the defendant committed a serious crime, but the prosecution case sucked. I'd love to see the differences between counties and type of defense representation and jury selection. How much of this is due to awful public defender practices or other abusive practices? The public defender is key as jury selection is critical.

ducktypegoose 8y ago

How the justice system is allowed to proceed with a farce in the way it is blows my mind. Like nobody's driving the bus, it's just a bunch of self-serving entities trying to get as much as they can for themselves. Prosecuting and defending seems like two sides of the same coin. There's no reason the roles of prosecutor, defender, and juror couldn't be assigned cases randomly from the same pool of lawyers. At least the perverse behavioral economics of the personal incentive game would be turned on its head.