Comment by gnicholas | Hacker News Reader

Comment by gnicholas | Hacker News Reader

I've served on a jury in CA and have seen jury selection on a couple occasions. Based on what I've seen, I think it will remain highly unlikely that a convicted felon will make their way onto a jury of a criminal trial (civil trials might be more likely).

In the standard questionnaire that prospective jurors are given, they are asked if they or members of their immediate family have been victims of a crime, or if they work in law enforcement. Now that felons will be part of the jury pool, they will undoubtedly also ask if they have been convicted of a crime themselves.

In my experience, judges will themselves excuse jurors who have family in law enforcement (parent, spouse, sibling), which means the lawyers don't have to bother using a challenge on it. I would expect the same will happen with many/most criminal convictions, especially when they are related to the crime that is alleged.

And even when they are unrelated, I expect the prosecutor would dig in and ask questions like "have your feelings about respect for the law changed since you were convicted of embezzlement?" — even if it's an assault trial. These questions will be uncomfortable for the potential jurors, who may feel like they're being humiliated and put on trial all over again. I would not want to be a felon being questioned for jury selection by a prosecutor.

note: my experience is in San Mateo county jury selection as a private citizen. I am also a former lawyer, and almost all of my lawyer friends have never made it past jury selection. I served once, only because I emphasized that I practiced tax law, which is very different from criminal law.

I think it's kind of random. Last time I was on jury selection, the defendant, a black man, was accused of robbing a bank at gunpoint.

The woman being questioned for jury duty was asked about being a victim of crime. She said, "I've been a bank teller for over 20 years. I've been robbed at gunpoint three times, and every time it was a black man. Black men are always guilty".

I was shocked she would say such a thing, but even more shocked to see her back the next day. She wasn't dismissed.

Was he guilty?

That is the wrong question -- if a juror is that certain, pre-trial, that a defendant is guilty, there is no way that the defendant can get a fair trial.

I guess the question was whether he was finally found to be guilty by the jury.

> if a juror is that certain, pre-trial, that a defendant is guilty, there is no way that the defendant can get a fair trial

Sure they can, one nutjob juror cannot convict.

I've also been seated on juries where some of my fellow jurors were quite obviously biased against the defendant, and this really hurt their credibility with me. I wasn't the only one either, other jurors challenged some of the statements they made and it was clear to me that they also picked up on the bias and rejected it.

My first time on a jury a pleasant looking retired white man said he wanted to be foreman, for a trial of a Hispanic youth, and the guy started with "well he's obviously guilty right?" and he was serious. This was met with total outrage from several others on the jury and the foreman sat there meekly for the rest of the deliberations. The rest of us carefully reviewed the evidence and the defendant absolutely received a fair trial.

What was the verdict?

One nutjob juror cannot convict, but one person can prevent a unanimous verdict by refusing to cooperate or objectively evaluate testimony and follow the rules. The result of that in many cases is a hung jury and then a mistrial.

Combine this with the concept of jury nullification (something law enforcement DESPISES) and there are lots of situations where it would make sense for a juror to refuse to align with the rest of the jury.

Fuck ... I hated that so much. I loved the actual courtroom experience, I learned so much about how our legal system worked and both sides’ lawyers did an excellent job in explaining the case from their view points. By the end, it was pretty clear to the majority of us which party had the better case .... except for one old lady who wanted to “stick it to the man” and hated both parties. 4 ish days of deliberation trying to get her to put aside her biases. Eventually we were able to explain it to her and she stepped down (after we pointed out it’d be a waste of everyone’s time, including hers, if we didn’t come to a decision), but man it sucked until then. It was a complex business case, and it required a unanimous jury vote.

I don't know. I was dismissed the next day. Never got to see how the trial turned out.

There is a good chance she used an explicit statement like that to get herself dismissed from the jury pool.

And whoever was in charge of ensuring an unbiased jury was willing to take that chance?

in that case they probably found it endearing

They pick jurors trying to guess who will go their way or help rally other jurors. Nothing to do with removing bias, if anything they want bias the direction that suits them.

Each side has no goal to remove bias, but I think the overall process does. By allowing each side to exclude some people, the most biased outliers will likely be removed, and more middle of the road people will remain.

Perhaps the lawyer thought the blatent racism would shock the other jurors and make them more likely to "overcorrect"/compensate and be lienent or find the defendant not guilty (IDK facts of the case).

The jury system seems completely corrupt to me. I am glad we do not use this method in criminal trials here in Germany where I live.

Corrupt? It's a jury of your peers, how is it corrupt? It's random people that decide your fate.

In German it's judges. So a judge tries you and says you're guilty or innocent?

You have to forego your right of trial by Jury in the USA for that to be the case.

The corruption is that the lawyers are allowed to take advantage of the jury dismissal system to stack the jury, and in many locations they will do so.

have you ever served on a jury? it really does not work this way. the defense and prosecution both get to dismiss as many people with obvious bias (eg, victim of gun violence in a murder trial) as they want. then they both get to dismiss a small number of people without giving a reason. usually there are not enough of the second type to actually "stack" a jury. plus the other side is going to use their strikes to dismiss your favorites anyway, and I believe the defense generally gets more strikes.

In Germany there is the Schoeffengericht aka jury trial for intermediate crime. Schoeffen are also called Laienrichter, layman judges, there just aren't that many of them and procedures are different.

The decision of facts (as opposed to legal decisions) is a majority vote of professional and layman judges...

edit: major —> intermediate

I like being judged by a professional with experience. Judges are great. And if one judge or panel of judges is bad you will notice everything they do will be overturned in appeals.

The problem is selecting good judges. In Germany this seems to work great, but what I see in recent times in the US terrifies me. Voting for judges leads to populists winning, appointing them leads to very questionable people being appointed for their stance on single issues. Maybe the real problem is that the US is so divided with all sides trying to score points against the other side (whether that's Democrats vs Republicans, Feminists vs everyone else, Black vs White, Pro-Life vs Pro-Choice etc). Everything else just follows from that.

Part of trial by jury is to prevent the government from pushing immoral, dictatorial laws on its citizens. I wouldn’t say that Germany has a great track record of avoiding that.

Hitler was a populist with many popular policies and broad support in the population. Trial by jury wouldn't have slowed him down.

Apart from Hitler I can't think of any dictatorial laws in the last 150 years or so of (Western) German history. 12/150 seems better than average, so I wouldn't dismiss anything based on that. Trial by jury didn't seem to help African Americans in the first 100 years or so after slavery was abolished, so that's clearly not foolproof either

Maybe if they'd had their white nationalists cleared out by outside influence it would have. That's what it took with Germany, they should thank the Americans for their part in that.

Regardless, the foolproof is the enemy of the good. I doubt whataboutery based on whose deeply immoral and harmful behaviour is worse, of all things, is the way to win that argument.

>Maybe if they'd had their white nationalists cleared out by outside influence it would have. That's what it took with Germany

I don't think "cleared out" is the right word. The war killed indiscriminately, and only 200 or so were sentenced to prison. Removing those people from power, let alone the country, would have left to few competent people to run a government. What happened was showing people why Nazis are bad (I think everyone is thankful for that).

> I doubt whataboutery based on whose deeply immoral and harmful behaviour is worse, of all things, is the way to win that argument.

You started with "your system is bad because of the one thing that happened 80 years ago". I think "your alternative failed as well and shows no evidence of preventing the thing it's supposed to prevent" is a perfectly valid counter argument.

> You started with "your system is bad because of the one thing that happened 80 years ago"

I did? Strange, but those quote marks are around something I've never said or written.

> I don't think "cleared out" is the right word. The war killed indiscriminately, and only 200 or so were sentenced to prison. Removing those people from power, let alone the country, would have left to few competent people to run a government.

"Cleared out", while being something I have actually written - in this thread even! - is the correct phrase because it's what happend after the war in an initiative termed denazification. 400,000 Germans were interned[1], which is a tad more than 200.

[1] https://en.wikipedia.org/wiki/Denazification

> I wouldn’t say that Germany has a great track record of avoiding that.

Can you please explain this statement? Can you point at immoral dictatorial laws in Germany which do not exist in USA?

> Can you point at immoral dictatorial laws in Germany which do not exist in USA?

He mentioned track record - as in a reference to the past. Does the Nuremberg Laws ring any bells for you?

Trial by jury would have been useless against Hitler. What would have stopped him from abolishing it? Certainly not the Weimar Constitution -- even if trial by jury had been enshrined as a basic right -- because it demonstrably wasn't effective at protecting peoples' rights.

Also, it apparently didn't prevent the Trail of Tears, Japanese internment during WW2, slavery, the continued official discrimination against blacks afterwards, civil forfeiture...

Even after the abolition of juries in 192x, Germany had a system not too different from it: A panel of three professional and six laypeople judges. See https://en.wikipedia.org/wiki/Emminger_Reform

The difference is that these lay judges work alongside the regular judges. They can, for example, ask questions and decide on questions of law as well as fact. They also serve for something like two years and get a few weeks of preparatory classes.

With a 6:3 ratio "the people" had the power to overrule the professionals. Today, the ratio is one of 2:1, 2:2, or 2:3, depending on the crime.

Of course the worst court of all did (pretend) to include "a jury of your peers" (read: Nazis), although they were unimportant enough to not even warrant a mention in this article: https://en.wikipedia.org/wiki/People%27s_Court_(Germany). (Note the name, though).

That last link is really worth reading, I believe. It'll make you appreciate the rule of law as we (some of us) enjoy today.

I used to have a very low opinion of the jury system. I can’t imagine how a system designed to be swayed by emotional or ignorant but opinionated people would look any different from what we already have.

After I served on a jury, I had to admit that, whatever its faults, there is some value to occasionally explaining the law to random citizens and asking them to apply it in a given case. It should put a limit on how weird or explicitly unfair the law can be. To be honest, it’s not much of a limit. Several words already have a different legal meaning than their everyday meaning (e.g., in copyright law, “to copy” includes activities that don’t end with an identical copy of the protected work). But there is some limit.

The whole point of the jury is determining whether or not these laws are even reasonable in the first place.

The courts do their best to discourage jury nullification, but it is important to remember that after Colonial American juries regularly failed to convict people for particular crimes, the British government would instead charge people for those crimes in Britain. That was listed in the Declaration of Independence as one of the king’s abuses: “For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences.”

Indeed. This knowledge has been withheld from the public for generations, hidden in plain site. We have to educate each other.

> It should put a limit on how weird or explicitly unfair the law can be.

The defense isn't allowed to tell jurors about jury nullification and there's an effort to keep out any potential jurors who are aware of it. In general there seems to be a big effort to not have jurors think to much on their own. Once during selection I mentioned how unreliable eye witness testimony can be (they were trying to weed out anyone who had problems with convicting based solely on eye witness testimony), and the prosecutor asked me "What if the judge told you to give eye witness testimony the same weight as physical evidence?"

I often see people worry that if we didn't have trial by jury a lot more innocent people would get convicted. Yet if you look at a country like Germany, it doesn't have trial by jury and it has ~1/9 the incarceration rate as the USA.

I've had to sit in the room more than once waiting to see if any trials wanted to actually select a jury. There were only two times when I was in the room while the jury was selected. Once, when they filled up the jury before they asked me anything, and the other time when I was actually put on the jury.

I think it's very telling that the first time, the prosecutor kept asking if people would apply the law as written, and not how they would prefer it to be written. I didn't think I could answer that question without hearing the details, but she refused to provide them (she never got to me, so I never had to answer). It turned out that an inmate was caught with some drugs inside a prison, and she was charged with possession of the drugs, and possession of drug paraphernalia (the paraphernalia being a plastic bag the drugs had been kept in).

The second time, the judge asked if anybody had served on a jury before, and those who answered "yes" were asked if anything happened during that service that shook their confidence in the system. They were specifically cautioned to not go into details so that the rest of us wouldn't be tainted.

Both of those experiences feel like huge red flags for the system in general. But, again, I have to acknowledge there does seem to be some value in including regular citizens. I'm not sure if that value outweighs the negatives. But, it's an explicitly guaranteed Constitutional right in the US, so without an amendment, it isn't going away.

For the record, in the US, if you'd rather take your chances with just the judge, you can waive your right to a jury. But most people accused of crimes seem to believe the jury is a better bet.

>For the record, in the US, if you'd rather take your chances with just the judge, you can waive your right to a jury. But most people accused of crimes seem to believe the jury is a better bet.

Apparently this happens quite a lot in extreme cases like child rape or murder where the accused probably committed the crime but has a defense that replies on legal technicalities. They know that a jury would likely ignore the instructions to focus on the exact law and find them guilty because, well, they probably did it.

> They know that a jury would likely ignore the instructions to focus on the exact law and find them guilty because, well, they probably did it.

Or, if they probably didn't do it (perhaps school nurse convinced the teenager she had been abused and the police officer led the kid into saying what would make up a charge) the accused would worry that the witch hunt attitude of most people (who have children) would not give them a fair shake.

My sister and my father had a strained relationship during her teenager years, and my mother tried to coach her through a criminal charge against him to help her divorce case. Thankfully, my sister eventually relented and recanted. But if it had gone to trial, my father would have not been fairly judged by a jury.

The incarceration rate is irrelevant to your argument, because it depends on both the base rate of criminality and the conviction rate.

The conviction rate is what you're looking for, and consulting Table 5 and Table 6 of this document:

https://www.bjs.gov/content/pub/pdf/gap.pdf

We see that Germany has a higher conviction rate than the US.

What we'd really like to see is the rate of false conviction, but this is difficult to determine, for obvious reasons.

We do have remnants of it. In all more severe criminal trials the number of lay judges is calibrated such that they alone without the votes of the professional judges can acquit.

Unfortunately, there are many, many problems with it.

Lay judges don't get to see the court record (or even the written indictment), they stumble into the trial unprepared, and since oftentimes the oral proceedings are referring to things in the record, they can easily be overwhelmed and confused.

Additionally, court secrecy is absolute, and they must not tell anyone how they voted or why, so the professional judge can always sabotage an acquittal by introducing an error in the written judgment, which is written without the lay judges, and the lay judges never even see the written judgment.

If there are things in the record, how do you prevent these lay judges from reading them? Do you have any insight as to why the court system prevents the lay judges from begin informed -- presumably to prevent the record from being an undue influence.

> If there are things in the record, how do you prevent these lay judges from reading them?

As a lay judge you walk into the court building in the morning of those days you've been appointed for. You meet the professional judges, and they give you a short rundown of the day planned. Then you start the trials.

Until then you never even knew that Mr Miller was going to be tried for arson or that Mrs Johnson was going to be tried for shop-lifting.

If you walked into the judges office and asked the secretary (well, officer of records) for the indictment, she would tell you to walk away. She, the defender and the prosecutor have the only copies of the record (and in smaller cases the prosecutor does not even have the whole record, just excerpts he photocopied, because the prosecutor in the court room is not the one who worked the case).

Yes, the idea is to have totally uninfluenced lay judges.

there are a lot of things that are unfair about the us legal system that are unfair, but the jury selection process is not one of them. the prosecutor and defense attorney both get an unlimited number of "strikes for cause". it's a good system for eliminating jurors with potential bias.

if you face criminal charges is the US, you can have the verdict decided by the judge if you prefer, but it's usually not a good idea. trial by jury tends to favor the defense more than a bench trial (where the judge decides).

imo trial by jury is probably the best part of the US legal system. the real issue is the imbalance in resources between state prosecutors and public defendants. a poor or overburdened attorney can fail to make use of the many advantages you have as the defendant in a jury trial.

As an aside, this for me has always been the glaring difference between continental Europe which is largely under a civil law system, and Britain, which has a common law system (and hence, the US, Canada, Australia…)

The different systems are completely at odds philosophically and require a completely different attitude, which explains so much - Brexit and the antipathy of many Brits towards the EU, and the EU itself are the current exemplar of this - but pick any of the contested parts of the US constitution (like freedom of speech or right to bear arms) and you can gauge support either way by answering the question "do you understand/prefer common law or civil law?"

If you don't trust the citizenry to make decisions for themselves then paternalistic authoritarianism is your preference, and we all know where that leads.

There isn't a lot of contest about free speech in the US. Some, yes, but not much. The objections to getting shot are much more motivating than the objections to being spoken to or even about.

You should try Europe, there's plenty of contest about it there, and with plenty of reference to the US.

European countries have a jury system, usually reserved to criminal cases with long sentences, like a murder.

Germany is the exception. Abolished jury in 1924.

https://en.wikipedia.org/wiki/Jury_trial

While technically true, I wouldn't characterise that as "hav[ing] a jury system" but of those systems making use of a jury in exceptional cases or a very limited capacity. Even then I would feel it mischaracterised the system to anyone from the Anglosphere.

Greece, for instance, has a jury made up of judges. That's not a jury, that's an equivocation!

In my experience, judges will themselves excuse jurors who have family in law enforcement (parent, spouse, sibling), which means the lawyers don't have to bother using a challenge on it. I would expect the same will happen with many/most criminal convictions, especially when they are related to the crime that is alleged.

That's not been my experience, and I've sat through the process in San Francisco 3-4 times so far.

note: my experience is in San Mateo county jury selection as a private citizen. I am also a former lawyer, and almost all of my lawyer friends have never made it past jury selection. I served once, only because I emphasized that I practiced tax law, which is very different from criminal law.

Yep, voir dire is designed to weed out anyone with knowledge of the legal system or knowledge relevant to the case at hand. Then those people are expected to make decisions based on legal standards they've no familiarity with.

It's the best system in the world.

At least you are judged by a jury of your peers. Of course by "your peers" we mean we exclude people with the same profession as you, and we don't really mean people of the same social class. It might be people from your general area, unless the trial happens somewhere else where the laws favor the accusing party. But at least we can guarantee that your peers are humans. That ought to be enough.

Best system.

At least you are judged by a jury of your peers.

You're not though. The one trial I was one was a murder case and the two defendants didn't speak a lick of English. All of the Spanish speakers were weeded out because English is the law of the land and you are not allowed your own interpretations. Do you really think that is a jury of their peers? I owned up to speaking a few words of Spanish and vowed to use the official legal translations only, and out of desperation I wasn't excused.

When the police interrogated one of them we weren't allowed to translate the police interpretation both because we weren't official translators and because the policeman's words were not evidence. The official translation didn't match what I think the cop said. I followed the letter of the law. I asked the judge if we could consider the video of the interrogation and the judge answered in the negative. Eventually we convicted a man of second degree murder. The judge even sent out thank you letters. It's definitely up there as one of the most revolting things I've done with my life.

That ought to be enough.

It's not. Even if you ignore the baked in corruption it's an awful system designed by people enamored with a bullshit concept of legal precision.

There are plenty of things that could be done to improve it, but aren't. So here we are. Allowing felons to sit on a jury probably makes someone feel good but does little, if anything, to address the problems with our legal system.

My brothers a cop and I disclosed and served. They didn’t seem to mind. The cops had little to do with the trial though. The crime was reported by a family member and they just simply picked the guy up. The crazy part was when it was Friday. We were still hung. Guy comes in and says ok times up either you guys vote or come back Monday and the two hold outs went “yeah well I don’t agree but I don’t want to come back Monday” and that was that. That part still rattles in my brain.

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