Comment by splat | Hacker News Reader

Comment by splat | Hacker News Reader

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What the legal profession believes to be "beyond a reasonable doubt" and what the members of a particular jury consider "beyond a reasonable doubt" are two very different things. Judge Alex Kozinski wrote very well on the matter in a great article [1]:

"Juries are routinely instructed that the defendant is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt, but we don’t really know whether either of these instructions has an effect on the average juror. Do jurors understand the concept of a presumption? If so, do they understand how a presumption is supposed to operate? Do they assume that the presumption remains in place until it is overcome by persuasive evidence or do they believe it disappears as soon as any actual evidence is presented? We don’t really know.

Nor do we know whether juries really draw a distinction between proof by a preponderance, proof by clear and convincing evidence and proof beyond a reasonable doubt. These levels of proof, which lawyers and judges assume to be hermetically sealed categories, may mean nothing at all in the jury room. My own experience as a juror certainly did nothing to convince me that my fellow jurors understood and appreciated the difference. The issue, rather, seemed to be quite simply: Am I convinced that the defendant is guilty?"

[1] http://georgetownlawjournal.org/files/2015/06/Kozinski_Prefa...

Isn't that so obvious that it's reasonable to say it's by design?

I think this specific flavor of jury trials, gun ownership and the second amendment, this insanely broad free speech thing, they all are consequences of the same fact:

America optimizes for resilience against a hypothetical future totalitarian regime and happily sacrifices acceptable outcomes in the present.

I'm not convinced it achieves even the former, but that's obviously highly controversial.

I think there's another problem which would be indistinguishable from this one. The realms of behavioral science show we're inordinately vulnerable to priming, and to various forms, conscious and unconscious, of peer pressure.

Well, it turns out we've screwed up any semblance of a 'presumption of innocence' by intermingling that concept with forced group dynamics.

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From a previous post - https://news.ycombinator.com/item?id=8546354 :

"

...Because it is not voting in the sense of other voting. A criminal jury verdict has to be unanimous, but we send them to a sealed room and tell them 'Come back when you have a unanimous verdict.', rather than "Oh, you voted and disagreed? Well, Not Guilty then."

There is a strong understanding among the populace that a jury is a majoritarian body, that unanimity is a legal fiction, and that juries which can't effectively suppress dissenting opinions are failures in their social function, and we demand both extended "deliberation", and a completely new trial to correct their issue.

We even reinforce this understanding in caselaw; A last-ditch effort to un-"hang" a jury is termed an Allen Charge, which is apparently when the judge instructs the jury's minority vote that their position isn't reasonable while glaring at them menacingly.

"

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How does a "Presumption of innocence" held by one member, survive that group dynamic? A juror who is unconvinced by the case the prosecution makes doesn't have to say "I'm unconvinced", they have to actively fight for the defendant in deliberation, and convince the other people to change their votes, in order to leave the room. The holders of minority opinions are entrained to see themselves as inconveniencing every other member of the jury, keeping them from work and families. If they do not feel strongly about the verdict one way or another, the ideals of the justice system say that this is an absolute case for dismissal, because 'better ten guilty men go free than for one man to be wrongfully convicted', but faced with these social incentives, what do you expect them to do?

We've created a system where we may as well tell jurors: "If not all of you believe strongly in the verdict, forget the presumption of innocence and go with the decision of whichever among you has the strongest opinions that are the least persuadable".

If you want a system that preserves a presumption of innocence, switch to a unanimity-which-fails-to-acquittal or a supermajority-which-fails-to-acquittal standard rather than a unanimity-which-fails-to-another-vote standard.

I didn't want my excerpt to be too long, but Kozinski actually talks about this in the very next paragraph:

"Even more troubling are doubts raised by psychological research showing that“whoever makes the first assertion about something has a large advantage over everyone who denies it later.”43 The tendency is more pronounced for older people than for younger ones, and increases the longer the time-lapse between assertion and denial. So is it better to stand mute rather than deny an accusation? Apparently not, because “when accusations or assertions are met with silence, they are more likely to feel true.”44

To the extent this psychological research is applicable to trials, it tends to refute the notion that the prosecution pulls the heavy oar in criminal cases. We believe that it does because we assume juries go about deciding cases by accurately remembering all the testimony and weighing each piece of evidence in a linear fashion, selecting which to believe based on assessment of its credibility or plausibility. The reality may be quite different. It may be that jurors start forming a mental picture of the events in question as soon as they first hear about them from the prosecution witnesses. Later-introduced evidence, even if pointing in the opposite direction, may not be capable of fundamentally altering that picture and may, in fact, reinforce it.45 And the effect may be worse the longer the prosecution’s case lasts and, thus, the longer it takes to bring the contrary evidence before the jury. Trials in general, and longer trials in particular, may be heavily loaded in favor of whichever party gets to present its case first—the prosecution in a criminal case and the plaintiff in a civil case. If this is so, it substantially undermines the notion that we seldom convict an innocent man because guilt must be proven to a sufficient certainty. It may well be that, contrary to instructions, and contrary to their own best intentions, jurors are persuaded of whatever version of events is first presented to them and change their minds only if they are given very strong reasons to the contrary."

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