I also think prosecutors are absolutely negligent when it comes to the police and others they need a relationship with for their other day to day activities.
I've kind of come to the conclusion that we need a _separate_ prosecutor's office for police matters.
It's just as bullying as false testimony, but far more common. I suspect a magnitude more innocent people are screwed by this than by purgery. Other countries, like the UK, seem to have more fair systems.
The proverbial headmaster arbitrarily deciding my fate? That feels more terrifying than a jury of my peers, to me.
In general through, judges have a strong bias towards the prosecution. DAs and judges are often extremely friendly since they work with each other every day. I would say that if you're innocent or your case has any extenuating circumstances, you almost always have a better shot with a jury than a judge.
Juries also allow for jury nullification, which allows for unjust laws to be ignored.
I dearly wish that jury trials were available in all cases. I recently went through a non-criminal case where justice was decidedly not served. The judge, of course, claimed he "had to follow the law" but his interpretation of the law contradicted the plain-text reading of the relevant statute. I had no choice but to suck it up unless I wanted to drop the rest of my life savings on an appeal. I feel pretty confident a jury would have seen things very differently.
The defence can ask a judge to throw out a case on the grounds that there is no evidence on which a jury could reasonably convict.
I think you're assuming quite a bit on the education, knowledge, and experience of the law on the part of the judge. There is no guarantee that the judge you get knows anything about the law pertaining to your case.
>> but their decisions have to be based in the law and either you broke a law or you haven't
And yet, judges are reversed all the time on appeal based on the idea that the judge got the law wrong.
Plus I'm fairly certain the judge has a great deal more power in the courtroom than the jury. A judge can certainly put you in jail for a period of time just because they feel like it.
But more seriously, the jury system also has serious flaws. I'd guess its bias towards existing norms. Bias against minorities in the jury pool. And its hard enough for us not accidentally trap into social media echo chambers. I doubt i'd notice attempts to personally manipulate me by a well funded defense (even without FB-like info about me). At the same time, a public defender wont have the resources to even try.
Guess "no free lunch" applies to legal systems as well. So far we haven't found an optimal system, at least.
You mean a bunch of random people who have no vested interest in the trial's outcome, and so can't be gamed or stacked for or against you in a premeditated fashion, vs. someone in a clear, long-term position of power that makes for an easy target of bribery, blackmail, or corrupt nepotism? You would seriously prefer that?
Centralization of power should generally not be preferred.
This is not how juries are formed. The parties can refuse jurors and you can refuse yourself if you are chosen.
That's not to say that judges do not exhibit such biases, but once again - they should be trained specifically against that. There is no such training or expectation on the juries. And yes, of course juries are asked "do you have any bias against this person" but I don't believe for a second that actually works.
Certainly you can introduce bias in the jury vetting process, but that's what your defense attorney is for.
Furthermore, your defense attorney has the opportunity to filter out jurors that have bias against their client. Not so for judges.
Nothing like the American system, where the lawyers can go through 250 candidates to choose 12 jurors, letting them choose the race, gender, education and class composition of the jury.
*Challenges are possible, such as if the random selection procedure wasn't followed properly or if a juror knows people involved, but it's very unusual.
They exclude jurors.
Big difference.
Each side -- depending on the state and level of court -- gets a certain number of premptory challenges; that is, they can exclude N jurors without giving a reason.
After that, the only way to exclude a juror is to prove to the Judge that the juror is biased.
One of my favorite lines about judges is: "it's the responsibility of every person to know the law, except trial judges, who simply have to consider the arguments presented and have appellate courts to set them straight"
But that is not true. An attorney will try that, while someone on a jury might not even be aware his believe in a nuclear family is used to paint the victim as a slut. Being aware of your own biases and noticing others trying to abuse them will require education and training. Random citizens won't have the time for that. A professional judge (should) take that time.
Do you take you medical advice from random citizens as well, since it is harder for the pharmacy industry to influence them? I'd want to avoid corruption. Transparency helps, but comes with its own issues... if at all possible. I do want a system that avoids centralized power as much as possible but still lets trained experts do the job. There's got to be a better balance.
So? That's what the jury selection process is for. Your defense should exclude jurors with such obvious biases.
> Do you take you medical advice from random citizens as well, since it is harder for the pharmacy industry to influence them?
Except I'm not beholden to only a single doctor. You are beholden to a single judge, and you don't get a say which judge tries you.
The system worked exactly as intended. Because jurors are paid almost no money to be there, I had a strong feeling that I didn't want to live with the guilt of sending a person to prison unless they were completely guilty and completely deserving of it.
While a judge will usually act fairly, a jury has a selfish incentive to actively look for ways to avoid sending someone to prison.
I don't think juries are a good solution everywhere. The UK does not have the remnants of racial segregation that the US does; racialism is endemic in US thought patterns. Additionally, the average person where I live is university educated. For that reason, I feel that every defendant should be given the option of a bench trial.
Btw, if you wanted to go into the free will vs formed by society thing: The reason parents tell their children to "work hard" and "be responsible for them self" is this being an effective influence. Such is necessary by society to provide for people to become better individuals. I know it sounds contradictory at first.
Meanwhile someone forced to do jury duty is gonna spend the time there whether they like it or not, so there's also no motivation to _not_ try to make good decisions. It won't save any time.
Roy Moore was a judge. Think of that. Ousted from the bench, twice, for defying court orders, ignoring the law, and displaying a lack of impartiality. This guys thinking was basically "I don't have to follow the rules, because God tells me what's right." And he was a judge for a number of years.
Now look at this video of a recent trump judicial nominee.
https://www.youtube.com/watch?v=c-zvNnFjk3Q
He couldn't even answer basic legal questions, and admits to have never tried a case in court. I believe he dropped out of the process. But others have gone on to be judges, with only slightly better credentials.
So having a judge decide is no guarantee of a fair outcome. Juries exist for a reason. They aren't perfect, and nothing ever will be.
Also seems like we have a somewhat high bar that should filter the worst people... you need a 4 year legal education and after that have an up to 5 year trial period til you got a life long position.
Except when the arbitrator has a grudge against you (maybe personally, maybe more generically - racially, ethnically, etc., maybe he just read a hit piece in the newsletter and is prejudiced against cases like yours). You can have a chance to sway the mob, but you have no chance against the professional who is out to get you.
To understand American system one has to understand that a lot of things there are designed not to produce best outcome in optimal cases, but to reduce harm in sub-optimal cases. It is meant not to solve cases with maximum ease, but to reduce the incidence of abuse. Of course, since people with power - aka the police, prosecutors judiciary, etc. - are not very interested in reducing their own powers they are actively working to undermine this design. Thus plea bargains, testilying, qualified immunity, blue wall of silence, etc.
In the vast majority of nonviolent cases I think we as a society tend to be overly punitive with the criminal justice system.
Maybe I'm making the same emotional overreaction here.
I've started to think that prosecutorial discretion is one of the main problems in Western societies. It yields all kinds of injustices, and overly vague and expansive laws that essentially result in every citizen breaking a few laws a day.
If prosecutors didn't have a choice on whether to prosecute a case, the law would ultimately be a lot more reasonable because old and unjust laws would more readily be stricken from the books, and there would be no possibility of favouritism.
I've had the idea that the current system we have, which is basically you're not breaking the law unless someone is watching, isn't going to play nice with constant surveillance.
Currently, if a law isn't enforced, it's de-facto not the law.
Just imagine if computers in people's cars were phoning home to police. How many speeding fines would be issued daily? Failure to (completely) stop at a stop sign? Reckless driving? Look at how China is currently testing the waters with shaming j-walkers[0]. Just wait until this is fully institutionalized.
[0] http://www.abc.net.au/news/2018-03-20/china-deploys-ai-camer...
It is not "Western societies", in some Roman/Civil Law countries, as an example Italy, prosecution is not discretional, it is "mandatory" for crimes (whether this is effectively enforced in the same way and everywhere is another thing).
One problem with that is that e.g. someone who testified that they show OJ killing the woman would have gotten the "punishment the accused is facing" when OJ was found innocent.
So this has the potential to put an innocent man (testifying correctly, but where the accused for BS reasons is free of charges) to jail just as a false testimony now has the potential to do so.
I realize that distinction may seem pedantic, but I think it's actually quite relevant in this case.
It's not sufficient that someone testified about what they saw, and have the case decided the other way. To start a perjury case against the witness, I would still demand all of the strictures of due process that apply to a criminal defense case.
That is, you would need to prove beyond a reasonable doubt that the witness was _lying_ about what they saw. It would absolutely _not_ be sufficient evidence just to have a "not guilty" ruling. You would need to prove that they _could not have seen_ the testimony they provided.
Absolutely, this standard would make _some_ prosecutions against police for perjury hard or impossible. However, there are a number of cases that I believe could meet this evidentiary standard that are simply not pursued by the prosecutors office.
A problem with this is that people giving false eyewitness testimony often believe they genuinely did see the thing they could not have seen and are telling the truth. So, a system like this would have the potential to punish as "liars" people who simply fell victim to what seem to be built-in foibles of the human memory system.
https://www.scientificamerican.com/article/do-the-eyes-have-...
https://agora.stanford.edu/sjls/Issue%20One/fisher&tversky.h...
(Note I'm not doubting that some witnesses really are consciously lying. The problem would be the potential to sweep up the innocent with the guilty, if the standard used is "what they said they saw is impossible, therefore they are lying." Additional factors showing they were consciously lying would be needed.)
The standard for perjury is not "their testimony was inaccurate, or was false". The standard for perjury is "they _knowingly_ made false testimony".
My complaint is not about changing the standard for perjury. My complaint is that prosecutors often avoid a perjury charge towards police, even when there is the evidence to support a perjury charge.
In order for anyone to be found guilty of giving false testimony the burden would be likewise. It would require that it be shown without a doubt that they lied.
Well, if the accused is considered non guilty of what they said they saw them do, then doesn't that "prove" that they lied? (as much "without a doubt" as the other person is innocent).
No. It absolutely doesn't prove that they lied. That's simply not what "not guilty" means in the criminal justice system.
Video that contradicts officers testimony.
Physical evidence that proves the testimony was a lie.
All of the above would have to be sufficiently different from reality that would suggest that its impossible to consider the possibility that the officer misremembered.
Example fake scenario:
I heard violent screaming coming from inside the home so I had to break down the door and search for the person in need of help and I just happened to find drugs.
Contradicted by video from the ring door bell which recorded the officer just walking up and kicking the door down so he could conduct an illegal search.
For real examples see the article. None of the listed scenarios suggest any reasonable party could think that the police officer misremembered.
Mark Furhman was definitely a liar and just a few months later the Rampart scandal happened.
Theoretically a sound idea, but people misremember things. It is possible to give false testimony without actively lying, and difficult to prove conclusively whether someone is actively deceiving or misremembering.
So for law enforcement, any lies or withholding of evidence to ensure conviction would automatically mean that the penalty being asked for is applied to all of those law enforcement and prosecutors involved. There would be no "free passes" given to law enforcement or prosecutors.
This, of course, will not happen any time soon in most jurisdictions.
This conflicts with the feminine imperative.