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I had a conversation with a public defender over
cocktails
once during a double date (we were all getting drunk to
be more accurate) and
asked how he could sleep at night trying to keep people
he
knew were guilty out of jail. He said he does absolutely
everything
in his power to
do
so, but if they're found guilty and go to prison he
celebrates it just as much as anybody. I think the term
he used was: "Fuck 'em". In vino veritas eh? Laudable
enough.
But I see no reason for the acting that goes on, where
the
attorney who knows that the party is guilty needs to lie
to
the jury about their client's innocence, especially since in
many cases the perp has confessed to his attorney. Facts
in
support of the client's innocence and acquittal can be
presented for the jury's consideration without the bullshit
performances these guys put on.
So in other words, the lawyer wouldn't weep about his
poor
client who ".. merely saw the old lady being mugged, ran
up to help, grabbed the knife and was running to the
nearest police station to turn this evidence in when he
got
caught". They'd simply say: "My client states that he saw
the crime and picked up the weapon to turn it into the
police having not actually committed the crime himself."
What's the big diff? One's a lie, the other isn't, but the
facts
have been fairly presented. I think it's an important
distinction.
It seems like a small change but to me, but isn't the
standardized lying by the officers of the court an affront
to
the legal system that's supposed to be a bastion of truth
finding? So in other words, no lying allowed by anybody.
State the facts, dump the charades.
Just because lawyers are the center of most of the
civilized
world's problems doesn't mean they don't have their place
but I think we might take a big step towards improving
the
institution by telling them they can present any facts in
support of their case, but they can't lie.
And of course, this would go for the prosecution as well.
A Study in Bias
http://catalogue.nl...v.au/Record/2246417
This book provides a good, short, common-sense explanation of why this idea won't work. It has to do with the necessary incompleteness of any given list of facts. [pertinax, Oct 17 2010]
[link]
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I think what you really want is to do away with juries. If
you want the decision to be made in a dispassionate way,
uninfluenced by lawyerly histrionics, then go to the root
of the problem, & replace juries with judges. |
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Alternatively, keep juries and do away with the adversarial
system. But as long as you have an adversarial system,
plus juries composed of amateurs susceptible to
emotional arguments, you will inevitably have the sort of
extra-factual forensics you complain of. |
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The English tradition of heavy reliance on juries and an
adversarial justice system isn't universal; my knowlege is
limited, but I have the impression that some
comparatively civilized countries do things differently. |
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Incidentally, I think the stage where facts in
support of the client's innocence and acquittal are
presented without bullshit is called "discovery"
This precedes, and, in the US, often supplants the trial
proper (A quick visit to
Wikipedia suggests that discovery, like juries and the
adversarial system also has its disadvantages.) |
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They do have non-jury courts, they're called
inquisitorial systems but they have kind of a bad
rep. |
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There has been serious talk about having
professional juries, especially I remember after
the lame morons on the O.J. Jury let him off
because he pretended a glove didn't fit. (Ask any 3
year old about the trick of making clothes hard to
put on) He splayed his fingers out and grimaced
while "trying" to make it fit and the equally lame
prosecutors were too stupid to just walk up and
repeat the trick. |
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Anyway, the problem with professional juries
would they'd probably want to be paid more than
fifteen bucks a day or whatever they pay. |
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My idea is to just have the judge admonish council
on both sides with: "Just the facts please" when
drawing a picture of the client with a halo or horns
on the courtroom's blackboard. |
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//They do have non-jury courts ... but they have kind of a
bad rep// I know. When I said what you really wanted was
to do away with juries, I meant it as criticism (I tried to
express myself politely, and maybe succeeded too well). |
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In Tom Stoppard's _Rosencrantz and Guildenstern are
Dead_
the title characters play a conversation-game called
"Questions." In that game, any non-factual rhetorical
question (or
statement) is a foul,
and they're constantly shouting things like "Rhetoric! Two-
love." |
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I imagine the judge doing that under your system. |
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Yea, maybe. But if you were a juror, wouldn't you
rather just see all the facts that were allowed in
discovery presented without the histrionics? |
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I guess I don't like the eye rolling and head shaking
the public does when confronted with some of
the
acting lawyers do. It cheapens and demeans the
process that I think is a cornerstone to our
civilized
society, and in my opinion, it's not necessary. |
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//When I said what you really wanted was to do
away with juries, I meant it as criticism (I tried to
express myself politely, and maybe succeeded too
well).// |
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And yea, I caught that but didn't feel I needed to
defend my wanting to do away with juries when I
don't. |
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//wouldn't you rather...// I, like, probably most of the
people here, am exactly the sort
of person who gets excluded by peremptory challange at the
voir dire stage, precisely *because* we'd rather just see all
the facts presented without the histrionics. |
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//Hu?// I mean that attorneys reputedly hate engineers,
and similar personalities, on juries, because they won't be
led by "narrative," and insist on a very rational approach,
forming their own conclusions from the facts. Such people
are, from the lawyers' point of view, unpredictable. I
suppose that wouldn't be true, though, if the lawyers
planned on making a strictly logical case. |
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Another reason
I'm an unattractive juror is that I'm extremely
countersuggestable
as I believe I've demonstrated ad nauseum in this thread. I
almost never argue with someone I actually disagree with,
but I frequently argue with my own position, either
internally or when I hear it from someone else. |
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Yes, that's exactly my stream of consciousness you've
captured there. James Joyce got nuthin' on you. |
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Well mouse, as a level headed kind of guy who's
more impressed with facts than presentation, I
think you'd be the first one to want to dispose of
the dinner theater that goes on in court. |
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If we're going to have play acting in court (and
that's what it is) why not do the same when say,
presenting the structural calcs on a bridge you
designed? Rant, rave, yell, pound your fists, drop
your voice to a whisper for dramatic effect etc?
You'd never do that because that's not the way
serious facts are presented for review. |
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Or they shouldn't be in my opinion. |
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As an aside rant, I think one of the biggest
problems our society has stems from the old
parental adage: "We want our kid to grow up to be
a doctor or a lawyer." How many kids looked at the
hard work and dedication it takes to be a doctor
then looked into how any scumbag could become
a lawyer and potentially make lots more money
with a lot less work? |
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I believe the engineers, scientists and
businesspeople giveth and the lawyers taketh
away. If parents would start saying "We want our
kid to be a doctor or an engineer" we'd have a lot
better world in my humble opinion. |
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Case in point: When we Earthlings put a man on
the moon 40 years ago, a group of under half a
million people got together and made it happen.
Their average age was 25 years old. Kids put us on
the moon back then because kids were educated
about real science, not indoctrinated with feel
good bs. |
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//You'd never do that because// ... because your audience
doesn't buy that crap. which is my original point. If
engineers presented to an audience which *did* buy that
crap, the temptation to engage in histrionics would be
extreme, and many would succumb. Eventually, the
culture would change, and histrionics would become the
norm. Better to eliminate the temptation -- by
eliminating juries -- or by making them better. My belief -
- just to clarify it, not to argue the point -- is that they
couldn't be better and remain juries -- making them better
(in that particular respect) would turn them into judges. |
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Or maybe I mis-heard, and it's not really "a jury of one's
peers." Maybe it's "a jury of engineers." |
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I wouldn't have a problem with a jury of engineers. |
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Gotta go to the beach now. Wife and kid in the car,
horn honking. |
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//They do have non-jury courts, they're called inquisitorial systems but they have kind of a bad rep.//
Non-jury criminal courts are a common aspect of many jurisdictions. Generally speaking, the adversarial leading and examination of evidence is retained - the difference is that the judge makes a finding of fact, rather than a jury doing it - so to characterise them as inquisitorial is not correct, unless you're talking about the sort of criminal justice system they had in place in the Soviet Bloc for "political criminals". |
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I would have been more comfortable if you hadn't started
off with the example of defense lawyers who know their
client is really guilty. I would imagine that, in many cases,
the defense lawer doesn't actually know, or knows that
they are in fact innocent. Likewise, there must be many
trials where the prosecutor knows the defendent is
innocent. |
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So, why start with the assumption that the theatricality of
the defense lawyer is only serving to help a guilty man
walk free? Your final statement that it applies to the
prosecution as well doesn't really undo the bias inherent in
the bulk of the idea. |
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Anyway, suppose we start from a clean slate, where the
defense lawyer does not know his client is guilty (and
where, maybe, the client is in fact innocent - this can
really happen). |
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Now, the defense lawyer states "My client claims that he
was not at the scene, and has no explanation for the
matching DNA fingerprint." |
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Is this an adequate job by the defense lawyer? No, of
course not. He is obliged, on behalf of his client, to point
out that there are serious statistical shortcomings in the
simplistic interpretation of DNA fingerprint evidence; that
the strong ethnic grouping in that part of the city makes a
spurious match even more likely than in general; that the
police did not correctly tag the sample and may have
actually confused it with a reference sample taken from
the client; and that the officer who collected the sample
at the crime scene was known to have a personal grudge
against the defendant. All of this may be unknown to the
defendant. |
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The defence lawyer is also obliged, on behalf of his client,
to ask the jury to consider all of the other ways in which a
sample of the defendant's DNA could have wound up at the
crime scene - whether or not the defendant himself has
considered those ways. |
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What you are proposing is that (a) the lawyers on each side
always know whether the defendant committed the crime,
and are always right and also (b) that neither side should
apply any intelligence or reasoned argument, nor ask the
jury to do so. |
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Suppose your son is caught entering Malaysia with a kilo of
heroin in his luggage. The death sentence applies if
convicted. Will you be happy for his defense lawyer to say
"Sure, he had the drugs on him. He can't provide a
plausible explanation for how they got there. And now
over the prosecution." ? |
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I think this is a dumb idea based on a prejudiced premise. |
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The problem with the American legal system is that too many innocent people are incarcerated, and the sentences are draconian. America today, with 5% of the world's population, holds 25% of the world's prisoners. We have the highest incarceration rate of any country, and a prison system more extensive than the Soviet gulag at its height. This is partly due to the second Prohibition, and to the tough-on-crime Republicans who are constantly ratcheting up penalties till we will eventually be hanging people again for stealing a loaf of bread. In Mississippi, for instance, two black sisters were sentenced to life for stealing $11. And the assistant DA on the case says he doesn't understand why people are protesting: "My position on this is they were tried and found guilty and sentenced by a jury. I don't know what else there is to say about it." Doesn't matter that it's insane, I suppose. In Texas the governor has been doing everything he can to stop the investigation of the case of a man executed for burning up his two children. Seems the man was innocent. Whoops. But better to execute ten innocent men than to let one guilty man go free. |
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[Max] //What you are proposing is that (a) the
lawyers on each side always know whether the
defendant committed the crime, and are always
right and also (b) that neither side should apply any
intelligence or reasoned argument, nor ask the jury
to do so.
// |
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I read [doc]'s proposal over again and I did not read
or infer any of the above from it. How can you (a)
*propose* that either side's lawyer's know anyone's
guilt or innocence? I don't think you can and I don't
think [doc] does, either. You can only propose the
conditions of those arguments. |
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And, I think [doc] was proposing (b) fewer
theatrics, and (perhaps hoping for) more intelligent
and reasonable arguments. |
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That is his idea, at least as I understood it. Just to
be fair. |
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(cut and pasted from my previously ignored and
deleted anno): |
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Do I think this is really possible? Who
would arbitrate the histrionics? Wouldn't they just
become more subtle and therefore, even more
difficult to sort from the hard facts of a case?
Maybe that's what [doc] is really advocating; less,
not none. |
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Of course hard 'facts' are at the heart of every
criminal case. But, how much 'hardness' is there to
any testimony, or even to most evidence? I just
don't see how anyone could open his/her mouth
without *some* degree of theatrics. Even the
appearance of disinterest or neutrality could be an
artifice to a jury...or a judge. |
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Perhaps I should rephrase "proposing" as "suggesting". And
the first two paras of the idea clearly describe the
situation of defense lawyer defending a person who he
knows to be guilty. |
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The [doc] is advocating that the defence lawyer merely
relays facts given to him by the defendant. This is not the
reason for having a lawyer. It would be a completely
inadequate defence if the defendant were, in fact,
innocent; and, since it is not the defence lawyer's job to
decide innocence, this is also a completely inadequate
defence even if the lawyer thinks his client is guilty. |
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Again - if your son were being defended but the evidence
were against him, would you not want the defence lawyer
to be as persuasive as possible? If your daughter were run
over by drunk driver, would you not want the prosecuting
lawyer to be as persuasive as possible? |
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The alternative suggestion, from the annos, of just
"reducing the histrionics" is fine, but (a) it's not the idea
that was proposed and (b) who decides between
"histrionics" and a genuinely heartfelt plea to ensure the
liberty of an innocent man, or the conviction of a guilty
one? |
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//(b) who decides between "histrionics" and a
genuinely heartfelt plea to ensure the liberty of an
innocent man, or the conviction of a guilty one?// |
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That is the question central to this whole idea, if you
ask me. The answer is the jury (or judge). Lawyers
exist to know the rules and procedures of the legal
system and to make arguments *for* people whose
self-defense could hardly expected to be free of
histrionics. |
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No, it's not central to the whole idea. The idea (as posted) is
simply to relay the facts as given by the defendant. Hence,
no histrionics or, indeed, interpretation is required. |
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The whole idea is based on the premise that the defence
council knows his client is guilty, and should therefore
distance himself from his client's claim of innocence. This is
fine, but only after the conviction, please. |
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//No, it's not central to the whole idea.// |
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[MB] Oh, alright. It's not the central idea as it's
presented. But, the outcome of a trial very often--
maybe most often--is determined by the
presentation, which usually includes a good dose of
theatre exactly intended to obfuscate the 'facts.' |
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I'll leave it up to [doc] to make his own case, but I
can understand how this system often leaves
litigants with a strong lingering sense of unfairness. |
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I do not, however, think, this idea is a workable
solution. |
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As it is, the onus of proof is on the prosecution. This would see the defence effectively colluding with the prosecution. |
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Let me tell you something. In 1984, a small lake in a place
called Bicton suddenly developed an algal bloom. The bloom
was so severe that large numbers of fish (mainly tench,
which is significant) died because the oxygen levels dropped
to about a tenth of normal. The bloom subsequently
resolved, aided by heavy rainfall over the following few
weeks, and by cold weather. |
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I think you see where I'm going. |
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//I think you see where I'm going.// |
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...not to the pub, AGAIN?!? |
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//Will you be happy for his defense lawyer to say
"Sure, he had the drugs on him. He can't provide a
plausible explanation for how they got there. And
now over the prosecution." ? I think this is a dumb
idea based on a prejudiced premise.// |
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And that's a dumb anno based on not having a clue
about what I'm suggesting. Maybe it's my fault. |
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An attorney for somebody caught with drugs in his
suitcase would say: "The officers say my client
had drugs in his suitcase. We're going to look at
several documented incidents where drugs were
planted on unwitting dupes by smugglers. We're
also going to look at cases where the police
themselves have planted drugs on people and the
fact that the suitcase was out of his possession for
12 hours, unwatched by him." etc. etc. as opposed
to: "My client had these drugs planted on him." |
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The difference would be that facts are presented,
not stories and lies. |
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Wanting people to stop lying isn't a bakery idea. It's WIBNI and advocacy, so [marked-for-deletion]. |
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Having been involved in a court case where the prosecution did everything in their power to withhold evidence from the defense and continued with a prosecution despite all common sense, I have to vote against this. The state has vastly more resources than most defendants so I think that the defence of deny, deny, deny is entirely justified. Facts aren't facts until they are proven. Unless the prosecution can present conclusive evidence for their case then the defendant is not guilty (in the UK at least). |
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[doctorremulac3] re: the example in your last anno, as the
system works at present, each lawyer presents the jury
with a story. Both stories account for all the evidence the
jury have seen presented. The jury is then supposed to
decide which story is more plausible (or in some cases,
whether the defense's story is plausible enough to cast
reasonable doubt on the veracity of the prosecution's).
This isn't bullshit -- it's actually rather scientific -- and you
appear inclined to prohibit it. |
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Under the present system, the jury chooses between two
theories. The adversarial system is supposed to gaurantee
that those are the two strongest theories in favor of
prosecution and defense respectively. Under your
proposal, the jury itself would construct a theory, and the
lawyers would either present "raw," evidence untainted by
interpretation (not remotely plausible) or be limited to
gently nudging the jury in the direction of one theory or
another by judiciously arranging bits of evidence in a
particular order (what I imagine you really mean). |
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To me, this seems to be the style in which scientific paper
are written, and it's one of the things that makes them
difficult to read. It's really a rather bizarre convention --
extremely valuable, but far removed from normal ways of
communicating, and requires some training and expertise
to cope with. |
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In fact, the more a scientific paper suppresses any
clue about what conclusion the authors are arguing for the
more unreadable it becomes. Openly declaring a position,
and
then openly arguing for it isn't bullshit, it's simply a way of
making your presentation comprehensible. |
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(To say nothing of the risk that, with only nudging to guide
them, the jury might overlook a strong theroy in favor of a
weaker one. This I take to be [MaxwellBuchanan]'s
objection.) |
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I say, [drrem3], the next thing you should post as an idea is "Honest Lawyers". Then you could really stir up some cynical annotations, I think. |
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//This I take to be [MaxwellBuchanan]'s
objection.)// |
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//The whole idea is based on the premise that the
defence council knows his client is guilty, and
should therefore distance himself from his client's
claim of innocence.// |
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Which makes about as much sense as saying I'm
suggesting making chainsaws out of butter. |
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So I'll try to clarify it a different way. |
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I would propose that the council for both sides
give the information or theories relevant to and
in support of conclusions of guilt or innocence
without voicing the conclusion that the client is
guilty or innocent instead leaving that up to the
jury. All the same information would be presented
pointing to the two different conclusions, but the
jury would be the only body making any
declaration of guilt or innocence. The council for
both sides would be admonished to present their
facts, possibilities and theories but to drop the
premise of the prosecution always knows that the
person is guilty and the defense always knows that
the person is innocent. |
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I would further propose that this information be
given to the jury without the acting, fist
pounding, foot stomping and other nonsense that
doesn't give the jury any information about the
case other than how emotional the lawyer can
become in court. This may be relevant to the
lawyer's presentation or acting skill, but not the
case at hand. |
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Here's another reason why I thought this would be
a good idea (although having lawyers not lie in
court should be enough) What if one attorney is
really skilled and the other isn't? What of a rich
person can afford a lawyer who's a great actor and
a poor person can't? ( I think this may have
happened once or twice) This method of detached
presentation would level the playing field. You
could easily change the name of the two sides to
"Presenter for statements suggesting guilt and
presenter for statements suggesting innocence." |
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As for the "marked for deletion, let's all". Well,
this is a proposed new procedural rule for
presentation of a case in the courtroom. |
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I'll check out pertinax's link later. Looks
interesting though. |
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What [Max] said less any marks for deletion plus a
whole lot of warmth and humor. |
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Ok, that's fine but realize that Max has yet to
comment on this idea. He commented on what he
thought this idea was which is wrong. And
granted, if I thought this idea was what he
thought it was, I would have boned it as well. |
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Appreciate the warmth and humor though. |
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I'll leave with this one last thought: Does anybody
really think that the attorney always thinks the
person is innocent and the prosecutor always
thinks the person is guilty? So since that's not the
case, why imply that it is? It's a farce, and it's an
un-necessary farce. It's also a farce taking place in
a building that's supposed to be a hallowed hall of
truth. |
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Ok, said my piece. The defense rests. |
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It's a farce and a necessary farce, or at least a useful one. |
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OK, said my piece,
prosecution rests. |
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... but before you render your verdict ladies and
gentleman of the jury, please remember that
Doctorremulac3 loves English people, is pro
humanity, anti bad things and donates liberally to
the cause and or organization of your choice. His
favorite sports team is also the same as yours and
hates the opposing teams. |
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Look into those eyes ladies and gentlemen and
ask yourself: "Are those the eyes of a person with
a bad idea? This loving father and pet owner? This
stalwart supporter of civil rights and freedom?" |
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And before you cast a bone ask yourself this: Who
among you has never had that crazy idea, that
wild notion, that impossible dream? The
centerpiece of our great society is the freedom to
speak our mind! (falls to his knees) Freedom!
That's all he's engaged in! Freedom! (whispering
and choking back tears)
...freedom. |
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Judge: "The jury is admonished to ignore the fact
that council for the defense was petting a baby
duck while making his closing arguments. At least I
think that was a baby duck he was petting." |
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One juror whispering to another: "...Hello! They're LAWYERS!!!..." |
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OK, OK. I re-read the idea. I stand by my objections,
basically. |
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First, as I pointed out in my first annotation, you present
your idea from an example of a lawyer who knew his
clients were guilty, which I think prejudices the whole
idea and sets the wrong tone for an unbiased discussion. |
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Second, regardless of what facts the lawyer chooses to
present, you are arguing that he is meant to be
dispassionate, or to go out of his way to present a
dispassionate case. |
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If I'm a defendant (and lets assume for a moment that I'm
innocent), I very much want my lawyer to use the full
range of human emotion and persuasiveness to try to
convince the jury of that. And if the prosecution is
representing someone who genuinely believes that I killed
their son, then I would imagine they too would want their
lawyer to be persuasive. |
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The basic argument here is for some sort of Vulcan
courtroom which operates on a purely logical basis. This
sounds ideal, but I don't think it is a very good idea on
earth. |
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Has nobody here seen the original version of "12 Angry
Men"? That dealt with the jury, not the trial, but the same
point applies. |
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//Has nobody here seen the original version of "12
Angry Men"?// |
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..as opposed to the gay porn version? |
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Your point's taken, the people have voted so what
can I do except resort to elementary school level
doo-doo jokes? |
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As opposed to the modern remake. |
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But you're right - you can't beat a good old doo-doo joke for
lightening things up. |
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[doc],et al, Fish bones are no indication of the
quality of a discussion that follows an idea, I'm
learning. You gotta love this place. Nice, gentlemen. |
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True that. Might not get accolades but the debate
can be interesting. |
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Plus it's a great place to drop the occasional wiener
joke. |
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Isn't it the case that if this idea was followed, then the side that uses emotional tools, even just a little tiny bit, has a tactical advantage over the other? Therefore it could be just as unfair... |
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//Has nobody here seen the original version of "12 Angry Men"? //
Or even the Tony Hancock version! |
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// Isn't it the case that if this idea was
followed, then the side that uses emotional tools,
even just a little tiny bit, has a tactical advantage
over the other? Therefore it could be just as
unfair...// |
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The main body of the idea was to tell lawyers they
can only present facts and dump the charade that
the prosecutor always thinks the person's guilty
and the defense always thinks they're innocent. I
still don't think lying should have any place in a
system designed to get to the truth but I've said
my piece. |
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I still think saying "if lawyers don't lie the
judicial system won't work" is like saying "if the
rooster doesn't crow the sun won't come up" but
there it is. Others disagree. |
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One final comment though, these lawyers
that have been told it's ok to falsify their
stance on something to fit the given situation,
this is where we get our politicians, a big
percentage of whom are former lawyers. Might
explain why the truth is considered so "flexible" to
the people who we trust to run our countries and
even to some extent our lives. |
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If judges thought that the risk of jurors being wowed or swayed or annoyed by defence solicitors pushing lies or storybook bollocks was greater than the risk of giving an obviously guilty accused a notional basis for appeal, then they would bang the gavel and tell the lawyers to can the ham. That they don't often do so tends to suggests that the problem described in the idea is not, in actual fact, a problem at all. |
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I guess I need to remember these aren't real ideas to be voted into being as much as topics of discussion. There seems to be some interest in this so... |
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I'm just not envisioning any scenario where an innocent man gets thrown in prison because his solicitor presented all the facts pertaining to his innocence and left out saying: "He's definitely innocent." especially if the prosecustion isn't allowed to say: "He's definitely guilty". |
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But on the other hand, maybe you need the theatrics to keep the jury awake. |
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You are such a kidder, [doc]! |
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The fact that this idea, with its annos, seems to
have a life of its own ought to tell you what a
sensitive nerve you've struck. |
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The more I read here and consider the whole
question, the more I think I understand why it
works the way it does. I just wish it made me feel
better. |
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I guess what's behind my thought on this is that I find it distasteful that people would be play acting when a person's life is at stake. On either side. |
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As fair disclosure I should probably add I'm not crazy about lawyers in general having worked with more than my share in various buisness dealings. I'm struck by how many are familiar with the letter of the law as it can serve them but utterly un-interested in the concept of justice and what's right, just what they can win, right or wrong. But I guess that's the core of the adversarial system so, oh well. |
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I'm sure there's good honest lawyers out there someplace though. Well, pretty sure anyway. |
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Surely this is just something that should be dealt with under “contempt of court” rules? e.g. if a lawyer starts piling on the emotional cheese, the judge bangs his gavel and says “stick to the facts of the matter, Mr. Gentlecloud, please”. If everyone agrees it is distasteful, and distasteful behaviour in court counts as Contempt of Court, then I dont understand why it should become a problem. |
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//The main body of the idea was to tell lawyers they can
only present facts and dump the charade that the
prosecutor always thinks the person's guilty and the
defense always thinks they're innocent.// |
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So, you have a lawyer defending a client whom he believes
to be innocent. He will inevitably betray this, however
much you ban "charades". Therefore, if you have a lawyer
defending a client whom he believes to be guilty, he will
betray this too, if only by the perfection of his poker-face. |
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Therefore, the jury will know what the lawyer thinks.
Therefore, the defendant is actually being tried not by the
jury, but by his own defence lawyer. |
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By allowing lawyers to plead "as if" they believed in their
case, you make it more likely that their own personal
belief does not taint the jury's judgement. |
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In other words, the lawyer's partiality actually helps keep
it impartial. |
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I don't know, judges administer distribution of information to the jury without the jury reading the person's guilt or innocence into it. And judges are probably the first to have made up their minds although they wouldn't say so. |
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Busy today, won't be able to continue this brawl till later tonight interesting as this is. |
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(Thanks for the mercy bun Big. It's lonely out here in bone land. ;) |
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Well, what I know of the American trial process is mostly
what I've gleaned from Ally McBeal and Quincy, so I don't
claim to be an expert (nor even in the English system). |
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But the judge, in my understanding, says a lot less than
the lawyers, and mainly rules on technicalities such as
whether evidence is allowable, who may be called, and
suchlike. |
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I dunno. This isn't really a brawl, and there's no
fundamental flaw in your proposal, except that I don't
think it can (or should) be implemented by humans. |
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I'll bow out, since I haven't got anything to say that I
haven't already said. |
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I'll strike my colors too, I'm starting to get redundant. |
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Ok people, dead thread, let's clear out, nothing to see here, everybody go home. |
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(Actually, people, you don't have to go home. You
just can't stay here.) |
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Point of order, m'lud. The inquisitorial system [link] refers to the system used in France (et al), where the judge is involved with the investigation and discovery. There are many debates about the relative advantages and disadvantages of this system as opposed to the adversarial system. |
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// By allowing lawyers to plead "as if" they believed in their case, you make it more likely that their own personal belief does not taint the jury's judgement. |
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In other words, the lawyer's partiality actually helps keep it impartial. // |
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Bravo, [Maxwell], that's the most succinct explanation I've yet encountered. |
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I'm afraid I must fishbone the idea itself though, as it seems to be based on a crude caricature of legal systems (yes, there are more than one) and lawyers, and as [MB] has pointed out, the remedy proposed could not possibly be implemented in the real world. |
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// there's no fundamental flaw in your proposal, except that I don't think it can (or should) be implemented by humans. // |
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If the facts of the case were clear and completely known,
there would be no need for a trial. The problem occurs
when, as is typically case, the facts are generally not
completely known. In this case any conclusion will be based
on the opinions of the jury, and those opinions will either by
created in court or pre-existing upon entering court. Given
that it is not possible to control the latter, the closest to a
fair trial that is possible is to give both sides an equal
chance to create them during the trial. |
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The ethics of being a defense lawyer are a complex
world. They are required to put their best effort
forward for any client they take in defense,
regardless of their personal beliefs about their guilt
or innocence. doctorremulac3 is a shaved ewok The
system would break down further otherwise. It's a
matter of attorney-client privilege and the
preservation of trust that is required for the attorney
to provide frank and full legal advice. |
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You seem to have almost no understanding of how
courts and lawyers actually work. And not knowing
what you're talking about just fucks your premises all
up. |
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You seem to have almost no understanding of my understanding of how the courts work or any understanding that this is a proposal to possibly do things differently. |
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It's not a dissertation on how the court works. It's a proposal to do something differently. |
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//I think what you really want is to do away with juries.
If you want the decision to be made in a dispassionate
way, uninfluenced by lawyerly histrionics, then go to the
root of the problem, & replace juries with judges.// |
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I think what you really want is to do away with lawyers. If
you want the decision to be made in the customary*,
common law way, uninfluenced by lawyerly histrionics,
then go to the root of the problem, & replace lawyers
with men and women. |
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The only thing that has binding authority over a man or a
woman is an independent jury of peers - not a
magistrate, not a 'judge', not a cop, not a politician, not a
statute. |
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I never want to be in the role of defendant-with-legal-
representation; but most of us seem to have forgotten
that there is any alternative. If I have done wrong and
harmed someone, I must offer to make amends and seek
forgiveness. If I have not done wrong and harmed
someone, and I am being prosecuted, then _I_ am being
done wrong and harmed, because another man or woman
is making a false claim against me, and _I_ have a valid
claim. 'Defendant' doesn't enter into it. |
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* In places with a common law tradition, such as most of
North America and the Commonwealth. |
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//If the facts of the case were clear and completely known,
there would be no need for a trial.// |
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That's only half the story. The facts and the *law* of the
case need to be established. That's a rather large topic in
itself; but c.f. "the contract is the law" and "jury
nullification" for starters. |
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