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.-- doctorremulac3, Oct 16 2010 A Study in Bias http://catalogue.nl...v.au/Record/2246417This 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] 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.
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.
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.
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.)-- mouseposture, Oct 16 2010 They do have non-jury courts, they're called inquisitorial systems but they have kind of a bad rep.
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.
Anyway, the problem with professional juries would they'd probably want to be paid more than fifteen bucks a day or whatever they pay.
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.-- doctorremulac3, Oct 16 2010 //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).
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."
I imagine the judge doing that under your system.-- mouseposture, Oct 16 2010 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?
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.
//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).//
And yea, I caught that but didn't feel I needed to defend my wanting to do away with juries when I don't.-- doctorremulac3, Oct 16 2010 //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.-- mouseposture, Oct 16 2010 Hu?-- doctorremulac3, Oct 16 2010 //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.
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.-- mouseposture, Oct 16 2010 Yes, that's exactly my stream of consciousness you've captured there. James Joyce got nuthin' on you.-- mouseposture, Oct 16 2010 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.
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.
Or they shouldn't be in my opinion.
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?
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.
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.-- doctorremulac3, Oct 16 2010 //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.
Or maybe I mis-heard, and it's not really "a jury of one's peers." Maybe it's "a jury of engineers."-- mouseposture, Oct 16 2010 I wouldn't have a problem with a jury of engineers.
Gotta go to the beach now. Wife and kid in the car, horn honking.-- doctorremulac3, Oct 16 2010 //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".-- calum, Oct 16 2010 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.
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.
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).
Now, the defense lawyer states "My client claims that he was not at the scene, and has no explanation for the matching DNA fingerprint."
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.
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.
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.
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." ?
I think this is a dumb idea based on a prejudiced premise.-- MaxwellBuchanan, Oct 16 2010 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.-- ldischler, Oct 16 2010 [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. //
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.
And, I think [doc] was proposing (b) fewer theatrics, and (perhaps hoping for) more intelligent and reasonable arguments.
That is his idea, at least as I understood it. Just to be fair.
(cut and pasted from my previously ignored and deleted anno):
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.
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.-- Boomershine, Oct 16 2010 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.
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.
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?
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?-- MaxwellBuchanan, Oct 16 2010 //(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?//
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.-- Boomershine, Oct 16 2010 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.
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.-- MaxwellBuchanan, Oct 16 2010 //No, it's not central to the whole idea.//
Is too.
[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.'
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.
I do not, however, think, this idea is a workable solution.-- Boomershine, Oct 16 2010 As it is, the onus of proof is on the prosecution. This would see the defence effectively colluding with the prosecution.
Bad idea.-- infidel, Oct 16 2010 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.
I think you see where I'm going.-- MaxwellBuchanan, Oct 16 2010 //I think you see where I'm going.//
Fishing?
...not to the pub, AGAIN?!?-- Boomershine, Oct 16 2010 //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.//
And that's a dumb anno based on not having a clue about what I'm suggesting. Maybe it's my fault.
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."
The difference would be that facts are presented, not stories and lies.-- doctorremulac3, Oct 17 2010 Wanting people to stop lying isn't a bakery idea. It's WIBNI and advocacy, so [marked-for-deletion].-- ldischler, Oct 17 2010 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).-- DrBob, Oct 17 2010 [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.
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).
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.
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.
(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.)-- mouseposture, Oct 17 2010 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.-- infidel, Oct 17 2010 //This I take to be [MaxwellBuchanan]'s objection.)//
Well, he wrote:
//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.//
Which makes about as much sense as saying I'm suggesting making chainsaws out of butter.
So I'll try to clarify it a different way.
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.
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.
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."
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.
I'll check out pertinax's link later. Looks interesting though.-- doctorremulac3, Oct 17 2010 What [Max] said less any marks for deletion plus a whole lot of warmth and humor.-- Voice, Oct 17 2010 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.
Appreciate the warmth and humor though.
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.
Ok, said my piece. The defense rests.-- doctorremulac3, Oct 17 2010 It's a farce and a necessary farce, or at least a useful one.
OK, said my piece, prosecution rests.-- mouseposture, Oct 17 2010 ... 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.
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?"
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.
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."-- doctorremulac3, Oct 17 2010 One juror whispering to another: "...Hello! They're LAWYERS!!!..."-- Grogster, Oct 17 2010 OK, OK. I re-read the idea. I stand by my objections, basically.
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.
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.
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.
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.
Has nobody here seen the original version of "12 Angry Men"? That dealt with the jury, not the trial, but the same point applies.-- MaxwellBuchanan, Oct 17 2010 //Has nobody here seen the original version of "12 Angry Men"?//
..as opposed to the gay porn version?
Kidding Max.
Your point's taken, the people have voted so what can I do except resort to elementary school level doo-doo jokes?-- doctorremulac3, Oct 17 2010 As opposed to the modern remake.
But you're right - you can't beat a good old doo-doo joke for lightening things up.-- MaxwellBuchanan, Oct 17 2010 [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.-- Boomershine, Oct 17 2010 True that. Might not get accolades but the debate can be interesting.
Plus it's a great place to drop the occasional wiener joke.-- doctorremulac3, Oct 17 2010 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...-- Ling, Oct 18 2010 //Has nobody here seen the original version of "12 Angry Men"? // Or even the Tony Hancock version!-- DrBob, Oct 18 2010 // 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...//
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.
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.
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.-- doctorremulac3, Oct 18 2010 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.-- calum, Oct 18 2010 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...
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".
But on the other hand, maybe you need the theatrics to keep the jury awake.-- doctorremulac3, Oct 18 2010 //One final comment...//
You are such a kidder, [doc]!
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.
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.-- Boomershine, Oct 18 2010 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.
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.
I'm sure there's good honest lawyers out there someplace though. Well, pretty sure anyway.-- doctorremulac3, Oct 18 2010 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.-- pocmloc, Oct 18 2010 //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.//
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.
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.
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.
In other words, the lawyer's partiality actually helps keep it impartial.-- MaxwellBuchanan, Oct 18 2010 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.
Busy today, won't be able to continue this brawl till later tonight interesting as this is.
(Thanks for the mercy bun Big. It's lonely out here in bone land. ;)-- doctorremulac3, Oct 18 2010 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).
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.
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.
I'll bow out, since I haven't got anything to say that I haven't already said.-- MaxwellBuchanan, Oct 18 2010 I'll strike my colors too, I'm starting to get redundant.
Ok people, dead thread, let's clear out, nothing to see here, everybody go home.-- doctorremulac3, Oct 18 2010 (Actually, people, you don't have to go home. You just can't stay here.)-- Boomershine, Oct 19 2010 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.
// 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.
In other words, the lawyer's partiality actually helps keep it impartial. //
Bravo, [Maxwell], that's the most succinct explanation I've yet encountered.
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.-- BunsenHoneydew, Oct 24 2010 // there's no fundamental flaw in your proposal, except that I don't think it can (or should) be implemented by humans. //
[marked-for-tagline]-- 8th of 7, Oct 24 2010 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.-- MechE, Nov 19 2014 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.-- RayfordSteele, Nov 19 2014 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.-- nomocrow, Nov 20 2014 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.
It's not a dissertation on how the court works. It's a proposal to do something differently.-- doctorremulac3, Nov 20 2014 //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.//
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.
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.
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.
* In places with a common law tradition, such as most of North America and the Commonwealth.-- spidermother, Nov 24 2014 //If the facts of the case were clear and completely known, there would be no need for a trial.//
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.-- spidermother, Nov 24 2014 random, halfbakery