Does An Impartial Jury Mean An Ignorant Jury? Can Barry Bonds Get An 'Impartial' Jury?

from the knowledge-is-good dept

One of the most controversial subjects that we've discussed on this site is the question of whether or not juries should be barred from doing additional research on the cases they're reviewing. This is one issue that really gets people upset with me, including many who normally agree with me. I'll admit that I'm not completely convinced that letting juries do their own research is sensible, and understand the basic issues with rules of evidence, but there's a nagging voice in the back of my head that keeps asking what exactly is wrong with a more informed jury? Apparently, I'm not alone in questioning this. Christopher D. Dize points us to an article he's written (which mentions our previous article on limits on Barry Bonds' jury), which explores the question of whether or not these kinds of bans on research really make sense.

He points out the reality of the situation. As Bonds' lawyers fight to keep certain evidence out of the case, the details of that evidence is widely available to anyone on the internet, and many potential jurors might see it. One way to deal with it might be to ban all such jurors, but in high profile cases, this becomes more and more difficult. From there, Dize points out that this view of a jury that can't do any research isn't quite as historical as some believe:
High-profile cases such as USA v. Bonds highlight the impact that Internet and social media are having on the ability to get an impartial jury and a fair trial. However, as Caren Myers Morrison has pointed out in her article, "Jury 2.0," forthcoming in the Hastings Law Review, the idea of "impartiality" does not necessarily require an ignorant or passive jury.

Professor Morrison, who teaches law at Georgia State University, points out that in the Nineteenth Century, the meaning of an impartial jury was more open to debate. To say a juror was "impartial" simply meant that he or she had no manifest conflicts of interest, i.e. the juror was not family, friend, or enemy of the parties. And it was not uncommon for jurors to have personal knowledge of the events and people involved.

As this country moved into the Twentieth Century, the idea that jurors should be ignorant of the facts and parties became solidified. As a result, today's jurors are dismissed with regularity for simply having familiarity or acquaintance with a defendant.

With Bonds' widespread popularity, the publicity of his case, and the swift ease of online research, all this begs the question: Can Bonds get an "impartial" jury, especially in San Francisco where Bonds played for 14 years, breaking numerous records and garnering worldwide fame? Or does the jury system need to bend back in time to give the home run hitter his day in court?
Again, I recognize the potential downsides here. People can be misled. They can find information that isn't accurate, and there may be no one to tell the other side of the story. That's a serious issue. But does keeping a jury ignorant outside of two specific sources really present the best solution? Is there some third (or fourth) alternative, that gives the jury more leeway in seeking out information in a more supervised manner that allows the attorneys for either side to also present their arguments over the evidence, rather than just letting them present the evidence? Perhaps it comes down to: what do we want the jury system to do? Do we want it to help adjudicate the truth of the situation, or simply weigh two competing arguments? Something tells me that having them responsible for seeking out the truth could be more effective.


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  1.  
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    Anonymous Coward, Mar 18th, 2011 @ 7:42am

    It is always the same thing: The jury must make it's decision based on the law and the facts presented by the defense and prosecution. There is nothing else they are allowed to do.

    Quite simply, they are not researchers. Can you imagine that appeals when someone is found guilty and they later find out that evidence not presented was added into the jury room?

    Worse, can you imagine someone being found innocent, and then the prosecution moving for a new trial because the jury "failed to do extra research"?

    Sorry Mike, this one is a non-starter. Once again, your failed fantasies of a perfect world come crashing down.

     

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    Anonymous Coward, Mar 18th, 2011 @ 7:58am

    Hum...Maybe what we need is a computer program, where data about the case is poured in, and it decides, based on that data.

    Otherwise, there are so many factors involved that a jury trial simply does not seem "fair" to me. I mean, jury members can be more easily manipulated than a judge (I guess), and they are not trained not to feel an immediate bias against any of the sides.

     

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    :Lobo Santo (profile), Mar 18th, 2011 @ 7:58am

    Re: Herr Trollington, I presume?

    Hi!
    I would like to say it is absolutely amazing how you can allegedly read but not comprehend. Somehow, out of a post which was a combination of three things: a question, an opinion, and some quoted source material; you managed to manufacture from the aether some horrid offense which the author is undoubtedly guilty of. (In this case, apparently, delusional fantasies about a utopian legal system (an oxymoron, btw)).

    I am amazed, astounded even at your level of skill. Is it an acquired skill, natural talent, or years of salaried practice? From the acuity of your post, you're either a top-end reporter at some puppet theatre (CNN or FOX news or something) or you're 11 years old and still having trouble grasping certain concepts presented in written form.

    Either way, bravo. An amazing zinger you've got there. Good day.

     

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    Josh in CharlotteNC (profile), Mar 18th, 2011 @ 7:59am

    It is always the same thing: The jury must make it's decision based on the law and the facts presented by the defense and prosecution. There is nothing else they are allowed to do.

    That's the fundamental argument of someone who cares nothing for the truth. To you, rules and procedures are more important than the truth.

    Once again, your failed fantasies of a perfect world come crashing down.

    Idealism is not a bad thing.

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:02am

    Re:

     

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    Anonymous American, Mar 18th, 2011 @ 8:06am

    I almost agreed with the first AC

    But then I got to the last line where the snark was unneeded. Oh well.

    In any case, the job of the jury is to weigh the evidence presented, not what they may have read/heard/experienced elsewhere.

    I think both sides of the adversarial justice system deliberately conflate "impartial" and "ignorant of reality". I think I can be impartial without being ignorant; even though I thought OJ was guilty as sin with the murder of his ex-wife, once the blood evidence was tainted it became a lot more difficult to convict based on "reasonable doubt".

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:09am

    Re:

    It isn't a question of caring about the truth (the truth is nice, but who's truth do you want to use?), the question is about fairness.

    Can you imagine jury selection - giving people a test in how to use Google, checking to see if they know what findlaw is, and so on. Perhaps they could measure the amount of internet traffic, and keep track of all of the sites they visit, looking for "correctable error" in their judgement.

    There is also no way to separate the truth from fiction. No potential for the two sides to address the "facts" and to challenge their crediblity.

    Legally, it's a non-starter.

     

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    Chris Rhodes (profile), Mar 18th, 2011 @ 8:09am

    Re: Re: Herr Trollington, I presume?

    I would like to say it is absolutely amazing how you can allegedly read but not comprehend.

    Seriously. I don't know how he managed to get through the whole post and not realize that Mike was soliciting opinions about ways the system could be better.

    We need better quality trolls around here.

     

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    cc (profile), Mar 18th, 2011 @ 8:10am

    Re: Re: Herr Trollington, I presume?

    Let's stop feeding them, please. Just click 'Report' and move on. They are only interested in making attacks on Mike, and we're enabling them by replying. Just ignore them.

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:11am

    Re: Re: Re: Herr Trollington, I presume?

    I understood what Mike said. The point is there is no "better solution" because it comes to the same problem: Legal cases are decided on the facts brought into evidence by the two parties, not by third parties (jury or others).

    There isn't some way to "make it better", without tipping the balance away from the rights of the person charged or the state's interests.

     

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  11. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Mar 18th, 2011 @ 8:13am

    Re: Re: Re: Herr Trollington, I presume?

    Hey, douche. Rather than calling me a troll, why not just consider the opinion? It is as valid as your pointless post.

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:14am

    While I'd support a system in which the jury can request additional information through the judge, with opportunities to object for the lawyers, and perhaps even call witnesses back under oath to ask further questions of their own (again under the supervision of the judge), just letting jurors go do research on their own seems like a horrible idea (although the resulting law firm/SEO company crossovers would probably be in some sense amusing).

    That being said, I do feel like they are using the wrong standards for a high-profile trial like this. The question should not be "Does the juror know about Barry Bonds?" but rather "Does the juror care about Barry Bonds?"

    Picking only jurors that haven't heard about Barry Bonds in the news will, if it's even possible, result in a jury that's considerably skewed toward complete recluses who do not read or watch the news at all, and such people may well tend to have a considerable bias in one direction or another.

    What's more important is just that the jurors don't care about Barry Bonds: they shouldn't be fans of him or his team or any baseball team or the sport of baseball at all, and they shouldn't care much about steroid use in professional sports in general. It seems like these factors are far more relevant to the impartiality of the jurors than whether they read the news.

     

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    Dark Helmet (profile), Mar 18th, 2011 @ 8:18am

    Re: Re: Re: Herr Trollington, I presume?

    "Seriously. I don't know how he managed to get through the whole post and not realize that Mike was soliciting opinions about ways the system could be better."

    Fine, here's a simple system in which you can incorporate this. Allow jurors to do their additional research. Amend the legal procedure for a jury trial so that, just prior to closing arguments, jurors are allowed to submit 2 questions each on any points they'd like the lawyers to speak about. This can include clarifications of what was said during the trial or, more importantly, anything that was discovered during additional research.

    Having it in writing will allow both sides to prepare and address the question. It should also keep the time impact relatively low. Doing it prior to closing arguments allows the attorneys on both sides to incorprorate the questions into their closings. Limiting it to 2 per juror also keeps the time impact low and keeps them focused on important questions.

    I'm sure there are flaws and unintended consequences in this suggestion, but I'm havng trouble seeing them....

     

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    Michael, Mar 18th, 2011 @ 8:22am

    Re: Re: Re: Re: Herr Trollington, I presume?

    "The point is there is no "better solution" because it comes to the same problem: Legal cases are decided on the facts brought into evidence by the two parties"

    That's the point - I'm not sure how you missed it. Shouldn't legal cases be about finding the truth? You are making the assumption that it is better to weigh facts presented by two sides than it is to determine what really happened. It has been my experience that when two people argue, both of them are usually wrong.

     

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    Jay (profile), Mar 18th, 2011 @ 8:23am

    At odds...

    Two sides do not an argument make.

    At the very least, there are three sides to every tale. There's your side, my side, then there's the truth, lying somewhere in the middle.

    Juries are supposed to be a collection of your peers. People that you may or may not know, judging you based on that community's standards. The standards of Hollywood, should not apply to someone living in Macon, Ga.

    Barry Bonds, being a "hero", in San Francisco, should be getting a decent trial. However, you'll find very few people that didn't hear about his testimony to Congress that was sealed. No matter where the trial goes, there may be a bias against Bonds for various reasons. It could be as simple as Bonds is a Giant and a fan of the Angels hates his guts.

    But that doesn't excuse the fact that our judicial system keeps people ignorant. In ANY profession, if you have a tool available, you use it. This is akin to knowing about jury nullification. Maybe there's a stalemate in court. Perhaps, there's a hung jury. Or perhaps it's a waste of time for all involved.

    Sometimes, the law really doesn't work to the benefit of society as it should. I'll grant that people shouldn't talk about every detail of a case, but if the information is already OUT THERE, then there should be merit in allowing people to filter out good and bad information in a case like this one.

     

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    pixelpusher220 (profile), Mar 18th, 2011 @ 8:25am

    Re:

    Truth is rarely as cut and dry as idealism might believe.

    Shall we use 'video evidence'? as an example. Pretty rock solid, unless the video was doctored. Should the video be allowed into evidence if you can't prove it wasn't doctored?

    If a surveillance video was taken home by someone, is it still viable as evidence? The chain of trust has been broken in terms of the authenticity of that data.

    Now what if that video was available online and the jury was able to research and see it. They clearly see the video, but they don't know that it was doctored because it wasn't 'proven' as a fact in court.

     

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    cc (profile), Mar 18th, 2011 @ 8:28am

    Re: Re: Re: Re: Herr Trollington, I presume?

    The good thing about free speech is that when you abuse it other people can tell you to shut the fuck up.

     

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    Michael, Mar 18th, 2011 @ 8:28am

    Re: Re: Re: Re: Herr Trollington, I presume?

    But then you have the problems Mike was referring to. Jurors may only ask two questions, but may have been swayed by incorrect or misleading information. If they are relying on the internet and news media to do their research, they could be getting information from a bias source or one that is simply incorrect.

    Having a third party without bias involved in the case may make more sense. Another group to research and present evidence that was missed, overlooked, or hidden by one of the parties to the suit may help, but I'm sure that is a system ready for corruption as well.


    It's all a mess. I say we settle everything with quick-draw contests.

     

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    Michael, Mar 18th, 2011 @ 8:32am

    Re:

    Knowing our government, Diebold would get the contract to build it...

     

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    Christopher Weigel (profile), Mar 18th, 2011 @ 8:33am

    Re:

    "Can you imagine that appeals when someone is found guilty and they later find out that evidence not presented was added into the jury room?"

    You mean "Can you imagine when the jury actually gets to see *all* of the evidence without filters?"

    Yes, I can, and it's beautiful. I'd much rather gather information from many diverse sources than from simply 2 biased ones.

     

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    Ima Fish (profile), Mar 18th, 2011 @ 8:34am

    "what exactly is wrong with a more informed jury?"

    We have centuries of law on the books regarding what constitutes valid, fair, and admissible evidence. We have laws against hearsay evidence and even more laws regarding various exceptions. The infamous Daubert case limits what scientific evidence can be used. (At one time, if you hired a scientific "expert" he or she could testify to anything he wanted. It was up to the jury to believe it or not. Now the judge has to conduct a hearing to ensure that the scientific expert's testimony truly proceeds from accepted scientific knowledge.

    Your suggestion to let juries research issues themselves opens up the floodgates. It eliminates all the protections we've developed over the past several centuries. (Yes, centuries.) Jury could use non-scientific evidence to figure out scientific issues. They could use hearsay, hearsay upon hearsay, or just something someone made up online.

    If you have the judge sitting there while they research, well telling them what they can and cannot look at, then you're not really allowing the jury to do research. Because the judge would only let the jury see what the attorneys want them to see.

    And lastly, in our adversarial system, while not perfect, there is a huge incentive for both sides to push for as much evidence as legally possible. To think that there's some key research sitting there online for every juror to find, that none of the attorneys found, is simply bizarre. Certainly it's possible in very rare circumstances. But that mere and slight possibility is not sufficient basis for me to throw out all of our rules of evidence.

     

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    Donny (profile), Mar 18th, 2011 @ 8:35am

    Re: At odds...

    "There's your side, my side, then there's the truth, lying somewhere in the middle."

    Could you clear that up? It's raising warning flags as I read it.

     

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    Michael, Mar 18th, 2011 @ 8:37am

    Re: Re:

    "the truth is nice, but who's truth do you want to use?"

    Not that I disagree completely, but that sad statement is really the problem. Our legal system doesn't really even try to get to the truth anymore. Apparently, it has become so difficult that we no longer care.

    It is probably impossible to get to the truth in a all cases, but a discussion about how to improve our chances seems worth having.

    Oh, and fairness is nice, but how can any legal finding based on falsities be fair?

     

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    Michael, Mar 18th, 2011 @ 8:43am

    Re: Re:

    Truth is absolutely cut and dry. Evidence is not. What happened, happened.

    Your example of video surveillance is an interesting start. Say there was a video on YouTube of a crime and the jurors found it. Now, say there is a news report saying that the video was doctored and does not really represent the truth. Now, there is another report that says what was doctored did not really impact the images of the crime committed.

    A well-informed jury could sort through all of this. An uninformed jury could have parts of this information - say that there was a video, but the video was doctored (and they can't see the video). Which jury is more likely to come up with the truth?

    A free-for-all is scary, but so is dangling small portions of the evidence in potentially misleading ways. I'm not sure which of these is better (perhaps neither), but it does feel like both are so bad that there must be a better third option out there somewhere.

     

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    Dark Helmet (profile), Mar 18th, 2011 @ 8:44am

    Re: Re: Re: Re: Re: Herr Trollington, I presume?

    "If they are relying on the internet and news media to do their research, they could be getting information from a bias source or one that is simply incorrect."

    Um, that's why my plan gives both attorneys a chance to respond to the questions/research. That's the whole point.

    "Having a third party without bias involved in the case may make more sense."

    There's no such thing as a 3rd party w/o bias.

    "It's all a mess. I say we settle everything with quick-draw contests."

    I like it....

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:47am

    Re: Re: Re: Re: Re: Herr Trollington, I presume?

    The adversarial system by it's nature forced the two sides to not only "bring the truth" but to shut down the "less than truthful" information provide by the otherwise. The defense has to refute the charges, show alternate possiblities, show where the evidence doesn't add up to "he did it". It is the nature of the game.

    One of the key elements is that both sides get a chance to address the "facts". A system that would allow those facts to come in via outside research or "jury room intervention" would destroy that, and make the legal system meaningless.

    While baseball fans might know a lot about the Bonds case, I doubt many of the rest of us (the sane people that can't stand watching a sport that rivals grass growing) give a crap. I have no idea what he did or did not do. Does it matter what I know just barely enough about him to say "I heard the name, I know what he does"?

    If they are that concerned, perhaps they can have the court case in another jurisidiction, away from his "fans".

    Exceptions or extreme cases should not be the basis of a legal system.

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:48am

    Re: Re: Re: Re: Re: Herr Trollington, I presume?

    ...and in return, we can call you a douche and point out how little you added to the discussion. Troll indeed!

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:50am

    Re: Re: Re:

    Both sides get the chance to bring evidence into the hearing. One side or the other should have the truth. If the defendant is lying to create doubt, is that any better or worse that the truth not being in the case?

    The truth has all it's chances to be in court. The people involved are the ones choosing not to bring it in the door. That is their problem, not anyone else's. It certainly isn't up to the jury to go trying to find it themselves.

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:51am

    Persons standing accused of having commited a crime have a constitutional right to face and question their accusers.

    While the rules of evidence may seem arcane, they have not been created in a vacuum. They have been created over several hundred years in order to limit as best as reasonably possible the presentation of relevant evidence to a jury. Imagine, if you will, a prejudicial comment transmitted to a juror over the internet. Should the comment hold some measure of persuasive force over the juror, just how is the defendant to enforce his/her right to face the accuser in order to cross examine that particular accuser? This is, of course, but one of many scenarios that may arise.

    Our judicial system has been able to function in many high profile cases while remaining faithful to the rules of law. It is not clear to me why this case would be any different.

    Is the system perfect? Of course not. Nevertheless, nobody as yet has been able to figure out another system or additional rules of evidence that pay fealty to the basic, constitutional rights of an accused.

     

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    Anonymous Coward, Mar 18th, 2011 @ 8:53am

    Re: I almost agreed with the first AC

    Mike earns the snark. For a guy who seems incredibly bright, he often goes off on these little fantasy flights that mean nothing. 10 minutes chatting with a lawyer will get you the answer why juries are not allowed to do their own research. It would also explain why Mr Bonds can in fact get a fair trial, and would go further to explain what sort of errors by the judge, the jury, and any of the players in the process can lead to a re-trial or at least an appeal.

    The system has it's checks and balanced, and it has it's pressure for the parties to bring the truth. Why Mike would even both to ask the question is beyond me.

     

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    Atkray (profile), Mar 18th, 2011 @ 8:57am

    Re: Re: Re: Re: Re: Herr Trollington, I presume?

    Thanks for making me choke on my Ramen.

     

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    Anonymous Coward, Mar 18th, 2011 @ 9:00am

    "It is always the same thing: The jury must make it's decision based on the law and the facts presented by the defense and prosecution. There is nothing else they are allowed to do."

    I might be mistaken, but I believe this is what a *judge* is required to do by the oath they swear. Jurys are allowed (but usually don't know) that they can do whatever they feel is best, even going against evidence and precedents through jury nullification. If it wasn't for this idea of complete jury ignorance, the poor people the MAFIAA convicts of file-sharing could get reasonable sentences instead of getting railroaded by the technologically illiterate who don't understand the issues and actually seem to think the statutory rates are reasonable.

     

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    cc (profile), Mar 18th, 2011 @ 9:07am

    Re: Re: Re: Re: Re: Re: Herr Trollington, I presume?

    The trolls think I'm a douche? I'm honoured! :D

     

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    Jay (profile), Mar 18th, 2011 @ 9:08am

    Re: Re: At odds...

    Everyone has a bias and you can't trust everything that people say at face value. People lie for various reasons, but you should be able to listen to what they have to say. You have to filter out what you know about a person to find out the truth about a situation.

    Ex. You have three children on a playground. One is hunched over crying on the slide, holding his cheek. Near him is a rock, while his knee looks freshly scraped.

    You have two girls that are the only witnesses to the incident. One of them says "She threw a rock at him!" while she has a stick behind her back, trying to hide from you. You have yet to ask a question...

    The second one says "She did it!" while her hands are empty.

    Now, what did they do? And what do they have to hide?

    Correct answer - Both probably tortured the poor boy at different times and were ratting on each other.

    The point is, if you usually find a reason for people to lie, you can figure out what actually happened and possibly make better decisions.

    Otherwise, we can all make stuff up far worse than the RIAA/MPAA.

     

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    pixelpusher220 (profile), Mar 18th, 2011 @ 9:10am

    Re: Re: Re:

    'Well-informed' is quite hard to distinguish from 'misinformed' without context and reasonable disclosure rules.

    Truth is only as cut and dry as the amount of context you have.

    Person A shot Person B. Truth.
    Person A is a cop. Truth.
    Person B is a cop. Truth.

    None of which determines if a crime was committed or not. The 'truth' is not just what happened, but the situation and details under which it happened.

    The US system of trial by opposing forces (prosecution/defense) allows for relevant (and provable) data to be introduced. Every single case where the 'truth' wasn't introduced because of evidence rules can be traced to a situation where 'untruth' was introduced the same way.

    Much like the statement "Democracy is a horrible form of government, but it's the best we've got" our trial system is the same way. There isn't a better system out there.

     

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    Joseph K (profile), Mar 18th, 2011 @ 9:10am

    A practical question

    I think a lot of the commenters here are sort of missing the point by talking about principles like "the jury should weigh the facts presented" or "impartiality" or whatnot. This is a practical question. It's a question of is the jury more likely to get the verdict right or not.

    I can see no reason why a better informed jury would make poorer decisions. There are certainly cases where the jury would tend to find distorted information from independent research, but there are other cases where the jury gets distorted information in the courtroom, like say in the Mike Tyson rape case. But only balance, it would seem to favor better decisions by juries.

    The only objection I can see is that people tend not to be very good at handling lots of information, and that their ability to decide increases the more information presented. Thus, perhaps, more information would tend to lead juries to acquit more often.

     

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    bloodyhell (profile), Mar 18th, 2011 @ 9:22am

    Rules of evidence

    I don't see any possible way to introduce other sources of information without undermining the rules of evidence. As soon as this is allowed in any form, councils for both side will begin to use those outlets to try their cases (more than they are doing now).

     

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    Jay (profile), Mar 18th, 2011 @ 9:23am

    Re: Re: I almost agreed with the first AC

    And if a juror practices the Socratic Method, then he should be able to seek out those errors and come to his own conclusion.

     

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    Anonymous Coward, Mar 18th, 2011 @ 9:25am

    Re: A practical question

    I can see no reason why a better informed jury would make poorer decisions

    Please defined "better informed". Remember that more information isn't better. Remember that "I found it on wikipedia" doesn't mean it's true. "I saw it on Fox News" doesn't mean it's right, and so on.

    What wonderful, perfect source are you suggesting they should use to get "better informed"?

     

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    OC, Mar 18th, 2011 @ 9:26am

    truth? Pfft!

    Whenever I hear people talking about truth in the judicial system I kind of cringe. A courtroom has never been, in my opinion, about finding out the truth. It's simply a way to minimize the risk of people taking matters in their own hands. In order to have a relatively calm society you have courts decide who is right and wrong but it has nothing to do with finding out the truth. Sure, it's nice if they do and I'm sure it happens from time to time but it's not the primary function.

    If finding the truth the system would be very different. For instance, any evidence no matter how it was produced would be allowed. If it was obtained illegaly there would be a subsequent process to handle that issue.

     

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    Jay (profile), Mar 18th, 2011 @ 9:27am

    Re: Rules of evidence

    I believe it's being tried in other civil cases...

    Link

     

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    Anonymous Coward, Mar 18th, 2011 @ 9:31am

    Because an informed intelligent jury will not rule as the system wishes.
    Look at how hard they work to suppress jury nullification. While it is entirely legal and as much a part of our system of justice as juries themselves, the legal system has managed to marginalize it to the point that people that talk about it are personally marginalized and often, arrested for exercising their rights to free speech.

    Most of the time, it's not about truth or justice anymore and frankly, I have no idea what to do about it.

     

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    CK (profile), Mar 18th, 2011 @ 9:38am

    Re:

    How is extra research necessarily evidence? Perhaps they just want to find out more about a witnesses background or how they relate to the case at hand, or have follow up questions on something they did not understand that neither side touched on. I think the subject is much more open-ended that you're allowing yourself to think.

    And how did you make the jump from the jury being allowed to research on their own to being forced to research on their own?

     

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    Joe, Mar 18th, 2011 @ 9:43am

    New field of work

    This could actually lead to a new field of legal SEO. A law firm, knowing people will do this whether it's allowed or not, will seek to bury bad results that make their client look guilty, astroturf some support to make jurors think the wind is blowing that way, or else flood the results with irrelevant noise to try and make searches difficult.

    In truth, this may be happening already, just under the table. It would be interesting to see how changes in Googles algorithm could affect jury trials.

     

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    Anonymous Coward, Mar 18th, 2011 @ 9:49am

    Re:

    Jury nullification is a powerful tool, but it is also a nuclear option, something that shouldn't be used lightly. The fact that it exists doesn't make it a clearly viable option in every trial.

    I suspect that in every case, you could find one juror who "doesn't like the law". They push the big red button, and we get a nuclear result.

    It is something that is meant for extreme circumstances, not every day use. What the people pushing for jury nullification are trying to do it is to nuke the justice system by having people push that button every day, in all cases. It is incredibly stupid, and the end result would likely be an amendment to remove that choice.

     

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    Michael, Mar 18th, 2011 @ 9:55am

    Re: Re: Re: Re: Re: Re: Herr Trollington, I presume?

    "Um, that's why my plan gives both attorneys a chance to respond to the questions/research. That's the whole point."

    But it does not address the information they learned but don't ask any questions about. I think that becomes a big concern when one party has more influence over the media. If they all read "he did it!" and believe it, why ask any questions?

     

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    Dark Helmet (profile), Mar 18th, 2011 @ 10:00am

    Re: Re: Re: Re: Re: Re: Re: Herr Trollington, I presume?

    Fair question, but if we can't trust our jurors to bring such evidence into question of both attorneys, then we might as well not trust them at all, in my opinion. I think that if someone researched the Bonds case and pulled up his sealed grand jury testimony where he offered some very damning evidence against himself, the juror's natural inclination is going to be to ask about it. If that isn't his inclination, then he has no business being on a jury to begin with....

     

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    Michael, Mar 18th, 2011 @ 10:01am

    Re: Re: Re: Re:

    "Both sides get the chance to bring evidence into the hearing. One side or the other should have the truth"

    Not really. Both sides are going to present the evidence that best supports their position. This would (in most cases) mean that NEITHER side is presenting the entire truth. You are making the assumption that one side is entirely truthful and completely in the right. While that may be true in some cases, the fact that we have a legal system at all suggests that this is not the case in all. The court system is not there to be a horse and pony show for people that have absolutely done something wrong, it is there because lots of disputes are really disputes and both sides have some merit.

     

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    Michael, Mar 18th, 2011 @ 10:05am

    Re: Re: Re: Re:

    The quote was from Churchill:

    It has been said that democracy is the worst form of government except all the others that have been tried


    And I actually agree with you that our court system seems to be better today than those we have seen in our history, but what Churchill was careful to include in his quote (but you missed) is that there may be something better that has not been tried yet. So, excluding alternatives because "this is the only thing we have tried that comes close to working" is not a very good argument.

     

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    Jay (profile), Mar 18th, 2011 @ 10:15am

    Re: Re:

    It's a choice, just like any other. And I highly doubt 12 or 13 jurors will really not understand the consequences of nullification should it come up.

    But making people aware of it shouldn't be vilified.

     

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    Chris Rhodes (profile), Mar 18th, 2011 @ 11:10am

    Re:

    just how is the defendant to enforce his/her right to face the accuser in order to cross examine that particular accuser?

    Hadn't considered that angle. +1 for you.

     

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    Donny (profile), Mar 18th, 2011 @ 11:10am

    Re: Re: A practical question

    "What wonderful, perfect source are you suggesting they should use to get "better informed"?"

    As many as possible!

    You want as wide a variety of hypotheses, of rebuttals, or corrections, of counterarguments, of overviews, of dissents, of amendments, as you can get.

    The truth is what's left after you've thrown out all the research, not what was found within it.

     

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    Eric, Mar 18th, 2011 @ 11:13am

    Everyone has preconceived notions..

    Every person who is on a jury is impartial in some way or other, that is why each side gets to ok or deny a juror. As an IT person I have more knowledge about computer issues than most people so in certain cases a lawyer would find me "impartial" because he couldn't warp the case into his favor. The whole objective of a lawyer is to warp the "facts" in favor of their client.

    I'm all in favor of Dark Helmets suggestion of allowing the Jury to ask questions in writing, except w/o the research part.

    As for Jury Nullification, I would have totally used it on a case that I was on a possible jury panel for. In Texas if you've asked the person their age, they've shown you ID and several other things lead you to believe they are of legal age.. but they aren't.. then if you have sex with them you can be convicted of sex w/ a minor. I would have totally nuked that.

     

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    Josh in CharlotteNC (profile), Mar 18th, 2011 @ 11:20am

    Re:

    And lastly, in our adversarial system, while not perfect, there is a huge incentive for both sides to push for as much evidence as legally possible. To think that there's some key research sitting there online for every juror to find, that none of the attorneys found, is simply bizarre. Certainly it's possible in very rare circumstances. But that mere and slight possibility is not sufficient basis for me to throw out all of our rules of evidence.

    A big problem with our adversarial system and all the rules of evidence is that both sides are assumed to have relatively equal amounts of resources and skill.

    That is far from the reality. Whether it is a poor black man with a public defender in Texas accused of murder, or a billionaire with the best defense lawyer in the country against an overworked and underfunded prosecutor's office, the system we have is too prone to manipulation by one side or the other (usually the side with the most money).

    Is allowing the jury complete and unfettered access to anything a Google search comes up with the answer? I'm not saying it is - but depending only on information presented by defense and prosecution has horrible pitfalls.

     

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    ts, Mar 18th, 2011 @ 11:38am

    I've always thought members of the jury should be allowed to question witnesses. What if a person who is on trial can't afford a lawyer, and his public defender doesn't do a good job? If there was a question that could be asked, and the answer would definitely sway a juror.. but no lawyers ask that question.. why shouldn't a juror be able to ask? If they think it's relevant, then I don't see the harm.

     

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    Ron Rezendes (profile), Mar 18th, 2011 @ 11:41am

    We need ESPN justice...

    I believe it is the show Pardon The Interruption that has a fact checker that points out erroneous statements and claims made by the commentators near the end of every show.

    We should have something along these lines in the courtroom to point out the fallacies presented on the stands.


    @OC, "If it was obtained illegaly there would be a subsequent process to handle that issue."

    Committing a crime to attempt to prove another was committed is not a downward spiral anyone should want to start. By the way I like my 1st, 4th, 5th, 6th, 7th, and 8th Amendment Rights just the way they are, thank you! Just back away from the Constitution and try not to use it to wipe your nose or ass with please!

     

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    Chris in Utah (profile), Mar 18th, 2011 @ 11:43am

    Why I miss raising the bar

    There is merit in Dark Helmets suggestion. We have lived in a world where the the case presented is only one way. If there is confusion on a juries part there only recourse was to defer to one of the other jurors judgment. I find it very chilling that the jury system is only one way. As a professional anything we've all heard garbage in, garbage out. So if there is any way to include getting input from any source; the lawyer, judge & witnesses why is this not how to get a balanced source of information?

    I don't proclaim to have the answers but i sure as hell don't like being dictated to not think for myself and that my friends is a fundamental flaw in the jury system; and probably why if I ever get sequestered to jury duty its the answer to:

    "Is there anything preventing you fulfilling your oath?"

    "If it pleases the court, I am an independent thinker and I refuse to be dictated to without asking my own questions. Now if there was a system to ask questions to every source(again lawyer,witnesses,experts ect.) presented to me in a case then, and only then can I make a truly informed decision for thumbs up, thumbs down or nuke button. "

    Wonder if this type of answer will ever be adopted into the minds of the law. Idealist that I am.

     

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    Josh in CharlotteNC (profile), Mar 18th, 2011 @ 11:47am

    Re: truth? Pfft!

    Whenever I hear people talking about truth in the judicial system I kind of cringe. A courtroom has never been, in my opinion, about finding out the truth. It's simply a way to minimize the risk of people taking matters in their own hands.

    And what happens when society no longer trusts the courts to be able to protect innocents from prosecution or punish the guilty?

    This is not just a theoretical discussion. There have been two major issues just recently in North Carolina. The state crime lab has completely ignored evidence that would have proved the innocence of suspects or omitted it from reports. And a sheriff who tortured two suspects into confessing. I don't think NC is particularly abnormal, so I can only guess what happens in other states that doesn't make national news. I certainly wonder how many innocent people the state of Texas has put on death row and executed.

    I completely reject the notion of accepting the fact that our justice system is imperfect and this is the best we can do. Allowing some additional information to get to juries seems like it would help.

     

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    HothMonster, Mar 18th, 2011 @ 11:57am

    Re: Re: Re: Re: Re: Herr Trollington, I presume?

    Its funny how we get hung up on the additional source being biased when the two sources the jury currently have for information couldnt be more biased.

     

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    Capitalist Lion Tamer (profile), Mar 18th, 2011 @ 12:27pm

    Re: Re: Re: Re: Herr Trollington, I presume?

    Fine, here's a simple system in which you can incorporate this. Allow jurors to do their additional research. Amend the legal procedure for a jury trial so that, just prior to closing arguments, jurors are allowed to submit 2 questions each on any points they'd like the lawyers to speak about. This can include clarifications of what was said during the trial or, more importantly, anything that was discovered during additional research.

    I don't really see any problems with that method other than instructions to the jury sounding somewhat like something from The Exorcist:

    "You may ask what is relevant. Anything else is to take a risk. The lawyer is a liar. He will mix lies with the truth to attack you."

     

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    okwhen (profile), Mar 18th, 2011 @ 12:27pm

    With our fraudulent legal system what difference does any of it matter. As attorneys say, with all the laws on the books everyone break several of them every day. We are a country of laws and I say we are a country of control. The woman holding the scales of justice is blind folded to prevent her from being biased. However, the facts are better looking and dressed people have a higher probability of being found innocent. The datum clearly indicates black people have a much higher possibility of being found guilty. I could ramble on and state factual information all day long and who will give a rats ass. Once anyone is charged regardless of guilt, the burden of proof is yours alone. If the cost of attorneys fees do not break you the DA's tricks with plea bargains a.k.a. let make a deal will. And for those who say we have the best system in the world, they are either wealthy people or people who have never been wrongfully charged with a crime.

     

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    xs (profile), Mar 18th, 2011 @ 12:46pm

    Mike is mistaken about what it means to be "informed jury"

    An informed person doesn't mean he/she read the most on a subject, but one who is logical, intelligent, and have enough basic knowledge to arrive at a reasonable conclusion when presented with evidence.

    So what we need isn't openning up the gate to allow every bit of garbage information to influence the jury, but a basic logic and intelligence test on the juror to make sure they are capable of sound reasoning.

     

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    xs (profile), Mar 18th, 2011 @ 12:57pm

    Re: Re:

    Judging by the amount of FUD regularly thrown about on the internet, I would take my risk with potentially biased and unscrupulus lawyers. At least what's said in court is transcribed and there's a chance I can appeal it somehow. But should Jury convict me based on some random comments logged somewhere on the internet that the Jury have no record of, then I'm truly, irrevocablly F**ked.

     

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    Anonymous Coward, Mar 18th, 2011 @ 1:04pm

    Re: Re: Re: Re: Re: Re: Re: Re: Herr Trollington, I presume?

    The point is that the jurors aren't investigators. I can smell "correctable error" in every jury judgement if you open this sort of thing up. They are suppose to judge based on what is presented, not what they come up with on their own. Jury duty doesn't come with homework.

    Can you imagine someone appealing their case because the jury failed to "research completely"?

    I know what you are trying to say, but it is incredibly impractical, and would lead to endless hung juries and appeals.

     

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    Anonymous Coward, Mar 18th, 2011 @ 1:06pm

    Re: Re: Re:

    Jay, it only takes 1 pushing for nullification to create a hung jury, and a mistrial. You don't need all 12 of them to make it effective, which is why it is a nuclear option. It doesn't just blow up, it pollutes everything around it.

     

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    Anonymous Coward, Mar 18th, 2011 @ 1:09pm

    Re: Re: Re: A practical question

    Donny, that would be a problem. You are suggesting they shouldn't work from fact, but from opinion. That won't help, that just muddies the water further.

    Can you imagine a copyright case settled when the jury only looked at the MPAA website?

    How about a hate crime site where only the KKK was considered as a source?

     

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    Donny (profile), Mar 18th, 2011 @ 1:41pm

    Re: Re: Re: Re: A practical question

    My point is that jurors are prejudiced already. Maybe a month ago they happened to glance over an article about piracy, or when they were seventeen a guy with a reputation for being in the KKK stood up for them in a fight.

    Who knows what opinions and biases lie within all of us.

    So I'm not saying jurors should seek out facts as they research. I'm contending the point that more information isn't better. Because I'd believe that, provided it's coming from multiple sources, I'd think it is - not to provide courtroom evidence, but as a means of addressing the prejudices that the jurors already hold and entered the courtroom with.

     

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    Anonymous Coward, Mar 18th, 2011 @ 3:34pm

    Put Bono, Paris Hilton on the jury they are all ignorant of what happens around the world so that probably would be considered impartial wouldn't it?

     

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    ltlw0lf (profile), Mar 18th, 2011 @ 3:43pm

    Re: Re: Herr Trollington, I presume?

    would like to say it is absolutely amazing how you can allegedly read but not comprehend.

    Quick...sign him up for a Jury. With no reading comprehension he likely isn't a learned individual, and thus is perfect for the job.

     

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    Anonymous Coward, Mar 18th, 2011 @ 3:50pm

    Please feel free to correct me if I am mistaken, but it is my recollection that federal and state trial courts have the discretion to permit jurors to submit questions to be asked of witnesses.

     

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    Chargone (profile), Mar 18th, 2011 @ 4:26pm

    Re: Re: Re: Re: Re: Re: Herr Trollington, I presume?

    they supposedly have opposing biases that cancel each other out.

    unfortunately, lawyers are trained in what amounts to rhetoric. juries aren't. which means that, to a point anyway, it's not a contest of evidence and facts, but of skill at misleading... and depth of pocket.

    dueling may have it's (many) issues, but at least no one questions where any involved parties stand (err, except maybe litterally)... though the idea of using pistols always struck me as profoundly silly.

    it is my opinion that an inquisitorial system makes a heck of a lot more sense than an adversarial one... though it does run into the problem of corrupt judges... mind you, so does the adversarial system, really...

    at least an inquisitorial system would solve the stupid corporate tactic of sueing until the other party's lawyers fees bankrupt them even if there's no way to win.

     

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    Chargone (profile), Mar 18th, 2011 @ 4:29pm

    Re: Re:

    cue epic facepalm.

     

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    Chargone (profile), Mar 18th, 2011 @ 4:33pm

    Re: Re: I almost agreed with the first AC

    that says more about you than about Mike.

     

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    Chargone (profile), Mar 18th, 2011 @ 4:35pm

    Re:

    and in your first paragraph there i think we have the beginings of that 'third (or fourth) option that was being looked for.

    useful.

     

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    Anonymous Coward, Mar 18th, 2011 @ 4:37pm

    Re:

    It is always the same thing: The jury must make it's decision based on the law and the facts presented by the defense and prosecution. There is nothing else they are allowed to do.

    Not always.
    This concept is a relatively modern innovation - originally juries were responsible for investigation themselves

     

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    Chargone (profile), Mar 18th, 2011 @ 4:45pm

    Re: Everyone has preconceived notions..

    i think you've got 'partial' and 'impartial' mixed up. the 'im' is a negative prefix and 'partial' means 'bias towards, prefering' or something to that effect. (of course, 'impartial' comes up more often so for cases like this people tend to use 'not impartial' rather than 'partial' but whatever.)

     

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    Chargone (profile), Mar 18th, 2011 @ 4:46pm

    Re:

    this by itself would probably be a significant step in the right direction.

     

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    Chargone (profile), Mar 18th, 2011 @ 4:49pm

    Re: Mike is mistaken about what it means to be "informed jury"

    humm. not sure that's quite the definition of 'informed' exactly. possesing some level of common sense and awareness of the world around them, maybe.

    certainly the ideal for a juror though.

     

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    Chargone (profile), Mar 18th, 2011 @ 4:51pm

    Re:

    ahh, but do the jurors know this, and at what point does it happen?

    and is it actually used in a useful manner or is the process of selecting jurors so screwed up that no one capable of doing so in a meaningful way is ever selected, because anyone with the knowledge base to meaningfully do so is, by the current methods of selection, not impartial?

    significant factors all, i think.

     

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    athe, Mar 18th, 2011 @ 5:37pm

    Re: Re: Re: Re: Re: Re: Herr Trollington, I presume?

    The defense has to refute the charges, show alternate possiblities, show where the evidence doesn't add up to "he did it".



    Actually, no, the prosecution has to prove the charges, show alternate possibilities, show where the evidence does add up to "he did it".



    It's called "innocent until proven guilty", not the other way round...

     

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    monkyyy, Mar 18th, 2011 @ 9:17pm

    Re: At odds...

    " There's your side, my side, then there's the truth, lying somewhere in the middle."
    nonsense the truth is nowhere near the other two
    it isnt black/white/grey
    its red/blue/green/black/white/and everywhere in between

     

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    Anonymous Coward, Mar 19th, 2011 @ 12:04am

    Re: Re: Re: Re: A practical question

    Juries already work from opinion, whether you like it or not. No jury in the land will ever work purely from evidence.

     

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    Anonymous Coward, Mar 19th, 2011 @ 12:12am

    Re: Re: Re: Re:

    And keeping people completely ignorant, or blatantly lying to them about such things, is the answer? I think society as a whole is a bunch of drooling morons, but people, as individuals, can be quite intelligent if treated as such. All you are pushing for is 'We the dipshits,' not 'We the People.' A less informed society is a weak and easily controlled society.

     

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    Chargone (profile), Mar 19th, 2011 @ 12:19am

    Re: Re: At odds...

    well, given that reguardless of colour you can't get further away from black without getting closer to white, and vice versa, and the actual colour in question is more of a sideways thing...

    the other colours simply replace grey in the black/grey/white sequence...

    so... your objection doesn't make much sense from the point of view of the analogy...

    and from any other point of view i can find looks far more like agreement.

     

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    bloodyhell (profile), Mar 19th, 2011 @ 6:26am

    The rules of evidence slippery slope

    If we were to move to a system where jurists do their own research, and councils for both sides play the information system, it eventually gets us to a place where the trial is more or less irrelevant, where your peers essentially vote their minds.

    We already know what this looks like. It's in comment sections all over the Internet, and it's not pretty. I'd say it's uglier by a few shade than what currently goes on in deliberation.

     

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    Gene Cavanaugh, Mar 19th, 2011 @ 1:48pm

    Juries and independent research

    RIGHT ON, Michael!
    In a law suit, one side is trying to mislead the jury one way (for the benefit of the client) and the other side is trying to mislead the jury in the other way (for the benefit of THEIR client, say, the State).
    The Judge is, by law, not allowed to interfere except in extreme cases.
    So, the purpose of the system is to mislead the jury; thus, OJ Simpson arguably gets away with murder.
    We need a better system; perhaps with the Judge being apprised of what a jury member found, so that the sides can be told what the jury member found and rebut it, where appropriate.

     

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    JEDIDIAH, Mar 19th, 2011 @ 5:34pm

    Athenian style jury.

    I think there is an obvious way to make it better. Choose juries by random and allow no challenges. End the cherry picking of juries. You get the luck of the draw whatever that may be. It may not be better, but it won't be biased in favor of the lawyers. You won't get kicked off the jury just because you have half a brain and aren't gullible.

     

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    Anonymous Coward, Mar 19th, 2011 @ 6:36pm

    Who's Barry Bonds?

     

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    Anonymous Coward, Mar 24th, 2011 @ 9:00pm

    Re:

    Worse, can you imagine someone being found innocent, and then the prosecution moving for a new trial because the jury "failed to do extra research"?

    The above question is a non starter, at least if you live in the USA.
    If you live in the USA you really need to read the 5th Amendment to the US Constitution.

     

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    Anonymous Coward, Jul 7th, 2011 @ 4:31pm

    Re: Re: Re: Re:the truth

    You are missing larger picture here.

    Lawyers twist reality ALL THE TIME. Even if one side is completely truthful, it's fairly simple for the other side to confuse the issue considerably..


    In many cases, it's trivial to clear the issue up on the internet especially on any technical matter... (Wikipedia is FAR more likely to be factually correct than anything you hear in the court).

     

    reply to this | link to this | view in thread ]

  91.  
    identicon
    Anonymous Coward, Jul 7th, 2011 @ 4:38pm

    Re:

    > And lastly, in our adversarial system, while not perfect, there is a huge incentive for both sides to push for as much evidence as legally possible.

    The major problem here is this: in many/most cases the sides will push CONFLICTING evidence/testimony...

    One of the sides may be twisting reality but if you are not an expert in the subject matter (and jurors are universally not) and are not allowed to do independent research, you have no way to judge. All the juror knows is that one of the sides is obviously lying. But which one?

    What then?

     

    reply to this | link to this | view in thread ]


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