Why the trial by ordeal was actually an effective test of guilt
aeon.co
aeon.co
In the USA, in 2017, people who knows they're guilty plead not guilty because they have reason to believe that they'll be able to get away with something. Either their entire crime, or at least the heaviest punishment for it. Meanwhile, people who know they're not guilty frequently plead guilty (or more accurately, take plea bargains) to avoid a slow and expensive justice system they don't perceive as an instrument of true justice.
Even in the system described in the article, it seems one third of people claimed innocence and yet were found guilty by the priests. My cynical thought is that they didn't pay the priest, or weren't regular churchgoers, or were "outsiders" to the community, and so justice didn't work for them.
I don't have a problem with this. Allowing a defendant to plead not guilty puts the onus on the system to make its case. The purpose of the justice system is not only to determine innocence and guilt, it's also to show that there is a fair and transparent process to get to that result. The procedure is often as important as the substance.
> people who know they're not guilty frequently plead guilty
Not sure how often this occurs, but this is definitely bad.
Unless you have a clear alibi with documented proof that you were nowhere near the scene of the crime, every public defender in America (and plenty of private lawyers) recommends you take a plea deal.
Even if the charges are absurd. Even if you repeatedly assaulted the police officer's fist with your eye-socket in the process of being arrested. Even if your friends, your parents, and your priest were all witnesses to your innocence, a plea bargain is the first and most prominent option.
There is no requirement for the prosecution to provide a clear case (or even a weak one) at the time of presenting a plea bargain. They often use the extremity of the charges as their hand.
John Oliver did a piece on public defenders that talks a lot about plea bargains, amongst other problems.
https://www.youtube.com/watch?v=USkEzLuzmZ4
Here's a study from the Department of Justice:
https://www.bja.gov/Publications/PleaBargainingResearchSumma...
According to the Bureau of Justice Statistics (2005), in 2003 there were 75,573 cases disposed of in federal district court by trial or plea. Of these, about 95 percent were disposed of by a guilty plea (Pastore and Maguire, 2003). While there are no exact estimates of the proportion of cases that are resolved through plea bargaining, scholars estimate that about 90 to 95 percent of both federal and state court cases are resolved through this process (Bureau of Justice Statistics, 2005; Flanagan and Maguire, 1990).
> As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”
[1] https://www.theatlantic.com/magazine/archive/2017/09/innocen...
A lawyer lying in court should be risking their own livelihood at least, with prison as a certainty for attempting to manipulate the court to imprison someone through deceit.
It's probably already part of the system, right?
If I remember correctly, the defendants had run out of money, the private lawyer they hired was increasingly doing things pro-bono (and losing focus because of it), and they had already disrupted their lives for two years. Each court date required hours of travel for both of them and days off work. They'd get there, only to have the prosecution kick the can down the road and have the court date postponed for another few weeks, in which case they'd have to do it all over again.
That they lasted as long as they did is a testament to them, but the system wore even them down.
To add a whole new angle of going after the prosecutors for contempt would have increased the stress on their lives and resources by an order of magnitude.
Wow, this is not true at all. Unfortunately, for many jurors simply being charged with a crime is evidence of said crime. The prosecution wields an amazing amount of power, and based on a lot of the news stories coming out they abuse said power. Remember, prosecutors are not rewarded for finding the truth, but for convictions.
And even when you have a clear alibi including video proof, you're still in grave danger[1]:
> Three months later, Juan would be facing a murder rap. The slaying in question had taken place on May 12, the same night he was at Dodger Stadium — 20 miles from the crime. Investigators didn’t buy his story. As covered in the Netflix documentary “Long Shot,” out Friday, Juan’s innocence would ultimately rest on a near brush with fame — more specifically, with Larry David and “Curb Your Enthusiasm.”
*
> Show’ producers allowed Melnik to view their footage from that day. He sourced eight 10-minute tapes before finding his holy grail: Juan, in his No. 27 Kevin Brown shirt, and his young daughter walking to their seats after returning from the concession stand.
*
> The discovery seemed a home run for Juan, who by then had been in jail over a month. Still, the prosecutor argued that the footage was from 9:10 p.m. — and the murder had occurred at 10:32. Juan ostensibly could have left early, driven to the scene of the crime, and still had time to kill Puebla.
It's worth reading the whole thing. They were going to push the death penalty for the guy. Eventually, his lawyer finds other evidence proving he wasn't there. After sitting in jail for five and a half months, he's finally let out, but then has to go back to jail for another 2 weeks because of a clerical error.
[1] http://nypost.com/2017/09/23/how-curb-your-enthusiasm-saved-...
Only a tyrant would do that. But you still need to recognize that a justice system cannot provide justice unless it has power and credibility. A powerless justice system isn't a justice system at all. So there are definitely instances where "justice" is sacrificed for the sake of the "justice system".
Innocent until proven guilty and all that.
Eyewitness testimony is known to be seriously flawed. I'm not sure that's enough.
No. It is absolutely enough in our current legal interpretations.
"I saw naasking communing with Satan, I swear it" is enough to get you put in prison or to a death sentence in the US. We like to think we are beyond the days of witch trials, but a few weeks in a courtroom would change your mind.
Trying to change that legal interpretation is going to be very difficult. Many crimes have very little physical evidence, even the interpretations of physical evidence we have are horribly bad because of biased expert witnesses and broken crime labs. Moreso, any push for better physical evidence will get more pushback from voters that are "Tough on crime", which is a very strong voting block in the US.
Think about everything you did yesterday, now put near exact times on it. It's very hard to do, and if someone pushed or suggested you in either direction 1 hour here or there you would likely go along with it. Now go out to last week or last month. Unless something extraordinary happened on the day in question most people do not have the ability to remember the time or even day. It's just not how memory works.
EDIT
And don't even get me started on jailhouse 'witnesses'. The prosecutor says if current criminal can get person arrested and sitting in jail to talk, current criminal gets a reduced sentence. I'm sure that's completely reliable testimony /s, yet it is pushed and used all the time.
I am of the very strong opinion that it is better to let 10 criminals go rather than putting 1 innocent person in jail. IMO, putting innocent people in jail damages society much more than letting criminals with little evidence of the crime walk.
Quite impossible, obviously. But I can't remember a single detail of what I was really doing. Probably ignoring the television with my nose in some fantasy novel, based purely on statistics.
Kimmel's late night television show does "lie-witness news", which effectively demonstrates that ordinary people will say pretty much anything if you prompt and cue them towards what you want to hear.
Walking from one class to another, while I was in the 8th grade. I was likely walking from my English class, but I don't recall what class I was walking to. I was told by a friend of mine who had just gotten out of his science class. We both participated at the time in the "Young Astronauts Program" as an afterschool thing, taught by our science teacher. I was walking past the PE locker / gym building, in a grassy area.
For all I know, though, this was so long ago that I could be completely wrong, so I don't really trust that memory too much; that's just how I remember it.
I do not think there is anything wrong using it, as long as it is explained to a jury that the accuracy of eyewitness testimony is suspect. Similar to how they are told that DNA evidence is ~99.999% accurate, they should be told that eyewitness testimony can often be incorrect (I wouldn't provide a number value though).
Between the criminal justice system (that can be read two ways), mass surveillance, warrantless searches etc., it's pretty clear we're all guilty until proven very guilty.
"Everyone is guilty of something or has something to conceal. All one has to do is look hard enough to find what it is." ~ Solzhenitsyn.
I have to say - outside of the obvious judicial system problems - the whole ordeal ultimately led Juan to completely change his life, in ways he probably never imagined. I'm sure he would like it had the whole "jail time" aspect of the ordeal could be deleted, but without it, he never would have ended up where he is now with his education and potential future career or business prospects.
It's one of those crazy things about life, which we rarely and truly appreciate, that oftentimes even the bleakest moments within our lives can sometimes prove to be great turning points toward better future things (of course, there's "survivorship bias" also playing into that - for many, tragedy has begotten tragedy; perhaps also leading to the whole "misfortune visits 3 times" trope).
I guess the people in power stand to lose most, as they'll no longer have relative immunity from their crimes.
And then you remember USA is "the policeman of the World" ... US voters have a big responsibility.
Now, perhaps the police are very good at their jobs and really do get the right guy 90+ of the time (everyone who pleads guilty plus everyone convicted at trial - approximately 60% of cases that go to trial [2]). Or, perhaps the court system has a bias towards finding people guilty.
One data point that argues for the latter possibility is that people defended by public defenders are significantly more likely to go to jail than people with a private lawyer. People with a public defender go to jail 88% of the time compared to ~75% for people with a private attorney [3]. To me, the implication is that the skill of your lawyer, and the time your lawyer will spend on your case, has a huge influence on your likelihood of getting convicted. That influence implies to me that the police probably aren't 96+% accurate in getting their man, and that therefore some of the people pleading guilty are doing so to avoid a false conviction.
If you look into this, you'll find prosecutors threaten defendants with harsh punishments as a tactic to get them to plead to vastly reduced sentences - e.g. "Take your chance at trial, kid, you'll do ten years for possession with intent to distribute. Or, plead guilty, do six months with two years probation." Prosecutors are incentivized to make these deals because they are evaluated, in part, by conviction rate.
1-http://www.uscourts.gov/about-federal-courts/types-cases/cri...
2 - http://www.justice.gov/usao/reading_room/reports/asr2012/12s... page 14
Far from all arrests even result in charges. So, if most of the police failures are identified by the DA before charges are filed, it would still look this way even if the police false positive rate was high.
In particular, that is not balancing for the crimes of the accused. Certain crimes are committed disproportionately more often by certain demographics. Burglary, for instance, has the highest recidivism rate there is and is also going to be something engaged in almost exclusively by the sort of individuals that would not have the means to hire private representation.
Recidivism is also heavily dependent upon demographics, and once again individuals without means tend to return to crime more often than individuals with means. While each judge has their own 'style' of sentencing, in general an individual they believe less likely to return to crime is more likely to be sentenced to probation, than an individual who they see as more likely to return to crime.
Another reason prosecutors are incentivized to make (and accept) plea deals is because if every accused in the US demanded a trial by jury, our entire justice system would collapse in on itself which would necessitate immediate reform. We don't have anywhere near the resources to actually handle all the people we arrest and charge if they actually attempted to defend themselves. Kind of interesting in that in a way it's like a nationwide prisoner's dilemma.
Yes, the system needs immediate reform, such as ending the "war of drugs" and not criminalizing being poor or brown. If the US stopped persecuting phony crimes, it could afford to prosecute real crimes.
Not all justice systems are the same, some States and even cities have much better systems than others. Saying the entire system is flawed goes too far. The system is very imperfect but fixable.
It has long been acknowledged that poverty is correlated with both criminal activity and conviction. Just mentioning this does not make it a causal relationship.
As to people with lawyers having better success: people who can afford lawyers tend not to commit crimes that are easy to prove. They’ll disproportionately be charged with white collar crimes, where the difference between legal and illegal conduct often could be what the accused was thinking when he took a certain action.
You've argued over the years that the justice system is in fact a justice system, not merely a legal system. In other words, you believe it's mostly fair.
I feel like I'm probably misrepresenting your position. But the overall point is that many of your comments carry a tone of "Well, there's a logical basis for why the courts work this way."
I've been trying to square your experience with anecdotal evidence, which seems to universally agree that the system is stacked against you. Those who go to court with a public defender are doomed.
In case you happen to enjoy that video, there's another on bail: https://www.youtube.com/watch?v=IS5mwymTIJU
One of my worst fears is being accused of some kind of crime, like cybercrime or anything else. I've seen how HN and Reddit treat the accused. I've done it myself: I know that the point of an indictment is to indict someone, yet when I read FBI testimony stating that the founder of Silk Road hired hitmen, I start to feel differently about him.
https://news.ycombinator.com/item?id=15414170
As cheesy as it sounds, I care about being honorable. I'd never engage in ransomware or embezzlement or anything else, let alone hurt anybody. But I know that if someone were to accuse me of those things, people would automatically think less of me, regardless of whether I did it or not. And that's why it's terrifying. Especially for those without money.
So I thought I'd ask you to please justify this system. Fundamentally, morally: is it sound?
The fact that 95% of cases end in plea deals, and that N% of that subset didn't commit any crimes -- should we feel ok with that? Yet on the flipside, it seems to work, and we seem to live in a pretty decent and free society. I'm not sure how much or little we should credit the courts for that.
The reason I'm asking you in particular is because you're one of a few people on HN with enough experience to give a thoughtful answer. You've been involved with it, and you know the territory.
To the contrary, I think it's incredibly unfair. But probably for different reasons than you do. For example, thousands of people every year are sentenced to an average of over six years in prison for possessing a firearm as a felon. It's "fair" in the sense that the error rate for those convictions is almost certainly negligible, because proof only requires showing possession and a fact that's a matter of public record. But in my opinion the crime and the sentence are unfair: we shouldn't take away the rights of people who have served their time, and six years is a sentence more appropriate for murder than possession of anything.
I think the under-funding of public defenders is a travesty. But most public defenders will admit that most of their clients are guilty, and they spend most of their time ensuring their clients plead to the right charges and get a fair shake at sentencing. It's "fair" in the sense that the system mostly convicts the right people (except at the margins, which is why public defenders should get more funding) but it's "unfair" in the sense that sentences are too long and many of these crimes shouldn't be crimes.
> One of my worst fears is being accused of some kind of crime, like cybercrime or anything else.
You should be afraid! Take, for example, 18 U.S.C. 1001, which makes almost any sort of false statement vaguely related to the federal government a felony. It's "fair" in the sense that there is almost never any doubt that the accused made the false statement in question (either in a recorded interview with an FBI agent, or in in writing in some official paperwork). But it's "unfair" in that it's often used to trap (or, more often, threaten) people who only did something marginally wrong. E.g. lying to a federal agent to conceal a workplace affair.
> Yet on the flipside, it seems to work, and we seem to live in a pretty decent and free society. I'm not sure how much or little we should credit the courts for that.
That's a really fundamental question. I think the way to look at it is to look at what happens in places without enforcement of certain kinds of conduct. E.g. sex crimes in rural India or Pakistan. Why do victims plead for enforcement of the laws on the books in such situations? Partly retribution. Probably not really deterrence--even with enforcement, the odds of getting caught are so low that there can't be much of a real deterrent effect. The biggest value of punishing crimes is, in my opinion, creating social norms. The overwhelming majority of people aren't "good" or "bad," but they will readily follow social norms that are visibly enforced. The primary benefit of putting people in prison for robbery thus is showing everyone that it's conduct that is so unacceptable that we put people in prison for it.
Take something like sexual harassment. Overt sexual harassment was much more common in the 1980s than today. One could hypothesize that this is because we started punishing sexual harassment by firing people for doing it. That begs the question: would men sexually harass their coworkers if there was no risk of punishment? Most men would say no. But are men today just better people than men 40 years ago? Probably not. Rather, what we've done through punishment is create a social norm. In most people, violating a social norm creates negative feelings even in the absence of punishment.
What I'm describing is like deterrence, but different in important ways. Classic deterrence suggests a rational calculus: if the benefit is greater than the punishment weighted by the risk of getting caught, people will engage in the behavior. That suggests that you can decrease crime through harsher sentences and more aggressive enforcement. But that doesn't square with observed reality: in many European countries, for example, the maximum sentence for murder is only 15 years, but people commit far fewer murders than in the U.S.
If you view the point of the criminal justice system as establishing social norms, then the length of punishment and aggressiveness of enforcement matter a lot less. So long as both are enough to clearly establish the social norm, that's sufficient to discourage ordinary people from engaging in the undesirable conduct.
The more basic type of deterrence is a strong justification for our justice system, but your point that it also exists to adjust social norms is excellent, and often not considered. You referred to prosecutors, but it's not just the government that doles out social norms...
Back in the 1950s and 60s, civil rights leaders would drive from town to town defending black people accused of crimes. They were great lawyers, but due to a variety of reasons (the big one being racism), they lost case after case. The vast majority of their cases actually.
Even though they lost many cases, the very fact that these well spoken lawyers were representing people of color started setting social norms. They were fighting back. They cross-examined white witnesses, and showed everyone was entitled to a good lawyer, and that the word of a white person could not be trusted any more than a person of color.
The point is that courts are often used as a vehicle for larger social change. It's generally free to engage (minus your time), you get an public audience, you get agents of the state to make official pronouncements (e.g., the judge, jury, prosecutor), and even the accused and lawyers get to say their bit in a (relatively) safe environment.
Sure, but nobody is proposing repeal of the law against robbery.
And when you look at something like felon in possession of a weapon, the same argument doesn't apply. Felons mostly acquire weapons for self defense like anybody else. Even most felons aren't murderers. And felons have more enemies than most -- former rivals, compatriots who may think you ratted them out, or prosecutors told them you ratted them out whether you did or not.
When the choice is a 5% chance of going back to prison for having a weapon or a 70% chance of getting beat down for not having one, so many people break the law that no social norm can be established.
So the only effect of laws like that is to make things too easy for prosecutors. Round up some ex-convicts at random and you can throw half of them back in prison for years without ever showing that they harmed anyone.
At best prosecutors are only doing this to "bad people" for some entirely subjective definition of bad, but we all know this is exactly the sort of thing that leads to selective prosecution of minorities and dissidents.
The question is how to get rid of laws like that when they have bipartisan support. Republicans like to be "tough on crime" and Democrats like anything that smells like gun control.
No question that judicial and prosecutor efficiency are important factors in deciding to prosecute, but they are not the only ones. Prosecutors often take on difficult cases when there is strong political support for it.
For example, after years of dragging their feet, NYC prosecutors tried to convict someone (anyone) involved in the 2008 financial crisis. They got a few people on the sides, but their effort was mostly seen as a failure. Still, it was probably better that they tried and failed rather than not tried at all.
Another example is the war on drugs in the 1990s. As far as efficiency and resources, it was a horrible program, not easy or efficient by any measure, but the country was terrified of drug use and it's related crime. The goal was based more in societal norms than efficiency.
Last example, Mayor Guiliani's tactics of removing small crimes (illegal street vendors, minor trespassing, graffiti) was based in the theory that you can improve entire neighborhoods and reduce major crimes by eliminating the smaller ones. Again, unclear if this tactic really worked, but it's clear that his aim was not purely judicial efficiency, it was economic development.
These cases were not efficient at all, but there was strong demand to
http://www.law.umich.edu/special/exoneration/Documents/Race_...
Sting operations are vastly more expensive. They are very rare. Most all police arrests come after the perpetrator has been reported to them by some member of the public. Police then interview/search that person and either find something (guns drugs etc) or the person admits something. Stings and such are the 1% cases.
>>"people who can afford lawyers tend not to commit crimes that are easy to prove".
Yes they do. That rich people are rarely charged is no indication that they are not committing such crimes. London sewage has tested highest in cocaine. Richer cities consume proportionally more cocaine and other drugs. The rich people that live in them presumably are committing more crimes (possession) than those in poorer cities.
Because of over charging it occurs all the time. The prosecutor works to setup an impossible choice where the only answer is to plead out. Take a plea for 2-5 years now or go to trial with the possibility of 30+ years?
If they really want to admit guilt, they can do so via motion at any time, and it would be treated identically to a request for summary judgment, where the defense allows the prosecution to finish building its case, and preemptively declines to respond or go to trial. Whatever is presented would be taken at face value. The prosecutor/plaintiff would still have to make a case strong enough to meet the burden of proof.
Plea bargains are taking the justice out of the system. They shouldn't even be possible until after the state has already done all the work they would have to do for a trial, because otherwise the incentive is to terrorize and intimidate the suspect in order to coerce them into taking the deal, regardless of their actual guilt or innocence.
Yes some people do this, but the vast, vast majority of cases never go to trial. Innocent people plead guilty in the us all the time.
Then take a poor brown person without good legal representation and having a fairly empirically justified belief that the justice system is out to get him, and he woukd be found guilty regardless. So exactly this.
The final paragraph is particularly bonkers:
> "In practice, it might not have mattered whether ordeals were truly God’s judgments or instead the judgments of clever legal systems that leveraged criminal defendants’ incentives to correctly find fact. For, in either case, the result was the same: improved criminal justice, thanks to God."
It's a facile analysis indeed that posits that this setup is either "clever", might "correctly find fact", or might lead to "improved criminal justice".
> The only ones who know for sure whether a defendant is guilty or innocent are the defendant himself and God above
Maybe it is carefully written so that the writer can get across an interesting anecdote, while not upsetting the 60% of people that pray daily in Virginia.
I mean the basic premise of trial by ordeal is "Hey, we dunno if you did it or not, and we can't trust your word for it, let's ask God, and let Him burn the shit out of your hand if you're lying". Pain + religious fears.
Why assume that the people or the priests in medieval times 'believed' with any less doubt than we have today?
Humans haven't gotten any smarter since then.
If the ordeal 'proved' the defendant guilty, all it would take is for one person to know for a fact that a defendant was not guilty to create doubt in the system.
Iterate this a few times and the absolute belief required for this approach to work would quickly disintegrate across the whole village.
The whole system of ordeals seems like a charade to legitimize what amounted to arbitrary judgments in light of insufficient evidence.
Kind of like the system we have today, come to think of it.
No. That isn't how it worked. The miracle was not that the hand was not burnt. It always burned. God's intervention was measured upon whether or not the hand was healing. If it was infected then god was not with you (and there was a good chance you would die). If the wound/burn was healing nicely then god was with you.
They did not expect miracles so dramatic as a hand not being burnt. To think that they did suggests that everyone was found guilty. They were not. The OP also suggests that ordeals were rigged. Some certainly were but people in the past weren't idiots. They knew what boiling water or red-hot iron looked like, fat better than we do today. They could spot a trick.
Trial by ordeal was not some scam or legal trick. People actually believed in the process took it very seriously. And we see remnants of it today. Many still believe that sickness and recovery from wounds involves "faith" and regularly pray for healing. Others believe that sickness is the result of God's displeasure, evidence of sin. Trial by ordeal is alive and well.
I had no idea that this kind of things was actually staged. Should I understand that even the priests did not actually believe in God's influence in this, and that instead they used the whole thing as a psychological trick?
If so, that says a lot about religion in general.
What is more interesting to me is how these ordeals seem to (poorly) parallel the cut-the-baby-in-half sort of justice King Solomon was recorded to have administered. Except in his case it was obvious soon after that he never intended to carry out the sentence.
Sure, it's sort of 'defending' trial by ordeal, but it's not new that this practice was real and terrible. What's novel to me is that it wasn't just a way to automatically convict every suspect; a 2/3 acquittal rate is vastly higher than I would have guessed.
Testimony is masqueraded as truth, or at least final.
You already know the answer.
However, the priest also took holy confessions from all of his sheep, which is as good as medieval surveillance gets.
He could not, however, come out and say that somebody already confessed the crime because holy confession was supposed to br private.
So the church as a political institution used a device which allowed to act upon knowledge obtained in holy confessions without admitting that they did so, thereby ensuring that the sheep did not loose faith in the confidentiality of holy confessions.
That's exactly the sort of prejudice that we are still fighting to this today.
Nothing new under the sun. I doubt a criminal would confess in confessional, though.
I'll bite though:
What if a person is technically guilty but they have convinced themselves that they are not? Be it ignorance of the law, or just arrogance? They'll get let off.
Conversely what if someone who is easily brainwashed has been convinced they are guilty and given false memories?
However, the effect mentioned does play in modern life:
* People who did park illegally won't bother to contest their parking ticket. * People who get sued for doing something wrong would settle if they actually did (although a lot of people will settle due to the cost of fighting, so it isn't perfect?)
Then some outlier cases will not be punished.
But it was an interesting article. If you liked it, you may like this one which changed my view on how justice works in US, "Why Innocent People Plead Guilty" by Jed S. Rakoff http://www.nybooks.com/articles/2014/11/20/why-innocent-peop...
born into this
into hospitals which are so expensive that it’s cheaper to die
into lawyers who charge so much it’s cheaper to plead guilty
into a country where the jails are full and the madhouses closed
into a place where the masses elevate fools into rich heroes
Even those that really believed, understood that miracles, if they existed at all, are not something that is forced just because they have a trial.
At best they were something that happens once in a blue moon, or in the biblical times.
That's going to improve everyone's chances of acquittal, and even if it was manipulated it doesn't take any conscious fraud. You want a good judgement, you believe your prayers are a factor in that, and perhaps if you're biased it's simply by praying longer for those you believe innocent.
I'm sure some priests did rig trials intentionally, but there's plenty of room produce a result like this out of piety.
It only works as long as no criminal knows how it works.
Kerckhoffs would have frowned upon such a system.
Doesn't this system fail when priests believe in miracles? Or when the guilty believe God will spare them? Or when the innocent don't believe in miracles? Or when a guilty nonbeliever considers the same game theory? Or when the accused isn't some homo economicus rational agent? These are hardly edge cases.
Isn't that the point of a prosecutor?
In a sensible criminal system the prosecutor, just like the judge is there to ensure justice. It's an asymmetric system, the defence represent an individual but everybody else represents society's interest in justice.
In England for example the prosecutors work for the Crown and make their decision based on the "Full Code Test" which says they shouldn't prosecute unless a bunch of constraints are true, including:
They are convinced the subject is guilty They expect to secure a conviction at trial, meaning they can prove the accusation to the satisfaction of judge and where appropriate jury. The prosecution serves a legitimate public interest The subject hasn't already suffered equivalent or greater consequences for their actions than could be inflicted as punishment for the crime.
I thought it was an adversarial system and the judge was the umpire.
> They are convinced the subject is guilty
Is they believed that why wouldn't they "charge guilty" the accused? Or am I misunderstanding what "been charged guilty by an overzealous prosecutor" means?