RoR: Forum

Post 0

Wednesday, July 9 - 11:17am

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The review of this book raises a lot of questions that would be interesting to discuss. The reviewer perhaps did him or herself a disservice by not posting this as a review, since we cannot sanction that person. I personally do support nullification. In the one trial where I have sat as a juror (a civil case, I was foreman) I essentially nullified the plaintiff's case.

(I realize this is not the usual usage of nullify.) A woman had supposedly tripped on an unrepaired step owned by the city. She was indeed injured, and the city's own surveillance tapes of her showed this - she limped when obviously unaware that she was being taped. The city tried to claim that she was not so badly injured, but ended up proving she was not faking. But the woman had also been drinking, she was leaving a party in a hurry. The crack that "caused" her to trip was quite small. She said her heel had slipped through it on the edge of the step. If so, she could not have been walking down the step properly.

Her lawyer made a case for a two million dollar settlement. Her medical costs had been under $50,000. We were not allowed to see her walk in the court, and no reason why was given. Four of the six jurors said they wanted to "give" her the two million. One juror said $0. I was the deciding vote - it's 5 out of six in a civil trial. I told the four that I would agree to $50,000, since the city did not contest her assertion that she tripped because of the crack. Rather, they argued her own culpability and no real damage. The crack had been reported as needing repair several times over a few years. I told the four that if they did not accept my settlement, the vote would be 4 to 2 and she would get nothing - a hung jury. As soon as we reported that a hun jury was the case, we were told to stop deliberating, that a settlement had been reached.

Discussing the case with the lawyers afterwards, we got the impression that the settlement had been on the order of $50,000.

During the deliberations, we discussed the facts according to instructions. But we discussed the award directly as an amount, rather than going step-by-step through the instructions to calculate it. I realized that if we did not do this, the four jurors would not understand why we would end up being a hung jury. But even after explaining this to them, they would not settle for my lower award. As they settled, it seemed to be fair to both sides by their reaction. Everyone left the court smiling. We found out that ours had not been the first jury to hear the case. It had evidently been a mistrial at least once before.

Not that this has anything to do with probable cause. I am more suspicious of the police than the author of this book. I have been stopped by the police for being white in Harlem, and have seen far to many causeless arrests and searches. I do find the plea system distressing. I think I'd even support outlawing pleas. The author might argue that the cops are generally aggressive because the courts favor the defendants. I don't accept this argument. I wouldn't mind hearing about how trials are conducted overseas. But I prefer adherence to matters of form over the police being able to pooh pooh abuses.

Post 1

Wednesday, July 9 - 12:48pm

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Ted, I added the item. I didn't add it as a book review because I'm adding new products to the virtual store (and changing how that works in the process).

Also, don't presume the author trusts the police. His point was not that we need to empower them more. His argument was that the rules they work under are actually extremely vague, and necessarily open to interpretation. And the courts throw out everything on a procedural error, no matter how small or whether it was made in good faith. There's no method to make the "punishment" proportional to the "crime". The system can't distinguish between a minor difference in opinion about what is "a reasonable suspicion", and outright abuses.

I don't believe the author said that the police are aggressive because the courts favor the defendant. But he makes a related point. Our system puts the police "on the same side" as the prosecution. That's why when the police make a procedural error, their "side" loses. Instead of the police focusing on investigating, they have a strong incentive to seek a successful prosecution. Similarly, they have incentives to not look very hard for evidence that might prove the innocence of the defendant. Instead of impartial investigators, their job is to win convictions.

This is part of the wider point that the trials should be aimed at discovering the truth, as a means of achieving justice. Whenever these goals are sacrificed, justice will be subverted.

Post 2

Wednesday, July 9 - 1:58pm

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I am missing context here as I don't know what book or what post you guys are talking about. But from what I can tell, and for what it's worth, I would take issue with the notion that trials should singularly prioritize the search for truth. In practice, truth must be balanced with a trial's cost and speed.

Jordan

Post 3

Wednesday, July 9 - 2:26pm

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Thanks, Joe. Having drawn you out, I'll have to sanction you, since I complained I couldn't.

My suspicion of the police comes from unfortunate direct experience. I could tell about half a dozen similar stories. Perhaps the worst was a night when I and my boyfriend were walking from his grandmother's to the train to attend a concert. As we passed a parked police car approaching the A Train station at 145th Street its lights and sirens went off. We were ordered up against the wall and frisked by two young cops, Hernandez and Bernstein, asking me, "whitey," what I was doing with "blackey," and vice versa. I was livid. I demanded to know why we were being stopped. I was told that the baseball cap I had pulled out of my jacket pocket could have been a gun. Could have been. It was not, they had discerned it was not. But they had their excuse - their lie - ready. They were bragging as they cuffed me how easy the catch was, that they knew I must have outstanding warrants. I was held for several hours cuffed to a locker and then released with a ticket for disorderly conduct which was never submitted to the docket. I took a day off to appear. They had torn up the ticket rather than going to court. Like I said, I can think of five other such incidents off the top of my head over a two decade period.

Now I am very "conflicted" when it comes to the police. I view them as a standing army. When they are needed, after a crime has actually occurred, their presence is a happy relief. I can tell of two times that I called the police, an attempted break-in against myself, and a the murder of a husband by his wife in my apartment building when the police responded overwhelmingly and in under two minutes to my great relief. They do their job - when that is what they are really doing - admirably and with obvious pride. And when they are standing around looking for busts they are cowardly, shameful and ashamed. I couldn't do that job. To carry a gun and to risk one's life and to have to meet a bust quota and to do so by intentionally and knowingly arresting people on the basis of their skin color?

The root problem is the war on drugs. This is the cause of the plea bargain philosophy. It is the great corruptor.

I have two moderate suggestions. End the war on drugs. And double, or even triple, the salary the police make. But fire them if they step over the line, clearly drawn. No one has a duty to become a police officer. But no one has the right to be one either. That people do now with the salary they make is troubling because either we are getting what we are paying for - bullies who will do the job for cheap - or these men of integrity are putting their lives on the line for much too little reward. I am troubled either way.

(Image: Watch Whitman frisk, watch Whitman smile, watch Whitman deservedly fired.)

Post 4

Wednesday, July 9 - 2:28pm

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http://rebirthofreason.com/Store/Trials_Without_Truth.shtml

Efficiency is a great, but the whole purpose of a trial is to determine the truth. If you do try to make it efficient, it must be with this overarching goal in mind. The problem as argued by the book is that the truth is not the standard by which trials are operated or judged.

Post 5

Wednesday, July 9 - 2:30pm

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Jordan, look at the book of the same title on the main bulletin board now or under products later. Or, simply click here

Post 6

Wednesday, July 9 - 2:32pm

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Not truth, Joe but justice. Justice requires the truth, but the truth achieved at a finite cost and without resorting intentionally to criminal methods to achieve it.

Post 7

Wednesday, July 9 - 2:51pm

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Ted, I was referring specifically to trials, not to the full justice system. Trial by jury is a method of evaluating the evidence and determining the truth. That's the primary purpose. It's the whole point of having a trial. (Sentencing is a follow-up step.)

The question of evidence gathered in illegal ways is interesting. Certainly if someone violated the law, they should be punished. But does this mean the evidence should be excluded? Excluding evidence prevents the jury from making a fully informed decision. This is the kind of procedure vs. truth trade-off that is constantly being made. Jurors are intentionally uninformed and kept in the dark. The truth stops being the purpose. When that happens, the trial system becomes pointless and irrational.

Post 8

Wednesday, July 9 - 10:21pm

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The failings of the criminal justice system certainly derive from non-objective law. What we here (and other Objectivists) seek to achieve with this dialectic is to identify the procedures required by identification of the axioms of objective knowledge. The axioms are easy; the applications are hard.

Within the criminal justice system as it exists, "everyone" (nominallly) knows that it is imperfect: police, prosecutors, defense attorneys, judges, all admit to that. The question is: Can we live with the imperfections. Bob Bidinotto is an Objectivist who strongly advocates for retributiion. He readily admits that lack of omniscience is no reason to scrap the system. If we condemn the innocent or pardon the guilty -- though he favors erring on the side of condemning the innocent -- such is the limitation of being human in a real world.

So-called "technicalities" are, in fact, the guarantees of civil rights that we Objectivists expect and demand of a proper government whose function is the defense of individual rights. Take the quintessential case of fraud, the blind horse. The horse is blind now but lived his whole life in one farmyard and knows his way around. The horse is sold. They buyer discovers that the horse is blind. This is fraud. Can the police come into the seller's home looking for evidence of a criminal conspiracy or any and all other types? Can they torture him for a confession? Why not? I mean that: given the discussion here, if truth is the ultimate goal, why does it matter how it is discovered?

The criminal justice system depends on its so-called "flaws" to ensure whatever objective justice is possible. Police must convince a judge of the need for a warrant. Then, they must convince a prosecutor that they have evidence. Even prosecution is a multi-stage process of preliminary hearing, charging, and binding over. One way to think about this is a funnel with screens. The accused can be culled out at several stages before trial by a jury. (We say that if you are innocent, get a judge, but if you are guilty, get a jury.) Even after being found guilty by the jury, further sorting separates those who deserve prison from those who do not.

No one gets through a police academy or a law school without learning these facts and arguing these theories. The very term "criminal justice system" is debated on the grounds that it is not at all a "system" but merely a conveyor belt. We all know that.

This brings us back to the original question. It is easy to document miscarriages of justice. Are they isolated instances or are they evidence of structural flaws?

Arguing against the theory of natural rights, I have asked: whence derives your natural right to trial by jury. When a jury consisted of neighbors who lived with you, that was one thing. Juries today are something else -- and that construct of being tried by your lifelong neighbors may never have been valid, but only a theoretical construct.

The courts were once the first bulwark against the government. The courts are a separate branch of government for that reason.... or were... today, they are the government, as much as the prosecutor or police. Yet, that, too, is an easy gloss that may not bear close examination. Judges are people. Some see themselves as the embodiment of blind justice, others purposely take the role of divine retribution. Most are in that murky gray area that we Objectivists hate so much.

Science fiction stories have posited trial by computer. Mostly, they are dystopias -- and for good reason.

It is easy enough to criticize the present system, but what would you replace it with?

Post 9

Wednesday, July 9 - 10:58pm

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Michael has said in my quote of him at the bottom of this post what I intended above by my statement that justice is a more fundamental goal than truth.

Not that one can have justice without truth, but that truth should not be bought at the cost of injustice.

Michael does oversimplify in asking where one's natural right - to a jury trial - comes from. There is no natural right to a jury trial per se. Rather, the jury trial is one of the best means we have found to secure our natural rights in a civil context.

Hence the answer to Michael's last question is we make small incremental changes within the current system as much as possible. We have free speech and assembly and can advocate and petition the government. Laws can be changed or repealed, and if necessary, the Constitution allows for amendation and calling for a constitutional convention. Reasonable incremental steps include what I advocated above, such as ending the "drug war" and raising both the standards and the pay of the police. We all should have 100 such changes at the tips of our tongues.

MEM:

"So-called "technicalities" are, in fact, the guarantees of civil rights that we Objectivists expect and demand of a proper government whose function is the defense of individual rights. Take the quintessential case of fraud, the blind horse. The horse is blind now but lived his whole life in one farmyard and knows his way around. The horse is sold. They buyer discovers that the horse is blind. This is fraud. Can the police come into the seller's home looking for evidence of a criminal conspiracy or any and all other types? Can they torture him for a confession? Why not? I mean that: given the discussion here, if truth is the ultimate goal, why does it matter how it is discovered?"

Post 10

Wednesday, July 9 - 11:56pm

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I recommend reading the book before people jump to the conclusion that "technicalities" is a euphemism for individual rights. It's not.

But Michael's statement about trying to determine the truth by reference to axioms highlights a confusion. The justice system is not something that can be robotically implemented without judgment by the individuals in the system. It can't be rationalistically deduced from axioms. People have to think. They have to interpret the evidence. They have to make judgments. And there may be honest disagreements about the conclusions. Instead of accepting that fact, American law tries to reject it. It tries to produce a countless number of rules, each of them applicable to certain situations, where there is no possibility for individuals to use their own judgment. That would be bad enough, but there's never enough rules in place for every situation. So honest disagreements become "procedural errors", and criminals are released because rules omit motive and degrees.

The point isn't that there are non-objective laws. There are, and they're bad. But even when there are objective laws, there will be the possibilities of differences in judgment. That's partly why we have a jury system, with multiple jurors, so we can minimize the chance of judgments being incorrect. But any dreams of removing judgment entirely from human affairs must lead to injustice.

Michael, my answer to why torture shouldn't be allowed is that it presumes guilt, when the point of the trial is to determine it. Same with invading a person's privacy by searches without reasonable doubt. The danger isn't that we'll torture someone who deserves it, but that we'll torture someone who doesn't. If we infallibly knew who was a criminal and what crimes they committed, we wouldn't have a need for trials. So the problem isn't that these methods produce the truth, but that they presume guilt.

But again, even if the truth was arrived at through inappropriate (or unjust) means, how is discarding the truth going to lead to justice? How can you have justice without truth? When the courts spend so much time trying to present a partial and/or skewed view of reality to the jurors, what reason would we have for expecting just results?

And before anyone assumes that our system is the only fair way to do it, you may want to understand how other countries do it. The book provides multiple examples and contrasts the differences. Any assumption that our system is the best, when we readily admit that it is broken, seems absurd unless you compare. Michael's quote "We say that if you are innocent, get a judge, but if you are guilty, get a jury" further highlights the expectation of our trial system.

It's really an excellent book. The flaws in the system it highlights are not small little details, but a fundamental structural flaw. It's not simply that cops aren't paid enough, or there are corrupt individuals, or that some isolated problems exist. Read the book.

Post 11

Thursday, July 10 - 11:00am

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I just read the review.

This book sounds much like Harold Rothwax's "Guilty. The Collapse of Criminal Justice." At the time of publication (1996), Rothwax had been a judge on NY Supreme Court for 25 years.

He also had a huge problem with the truth getting lost in the process. It's a great book and very fast reading

Thanks for bringing up Trials Without Truth. I'll have to get that one.

Post 12

Thursday, July 10 - 1:15pm

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Thanks, Ted, for pointing me toward the proper webpage.

And you said it well in Post 6: "not truth...but justice." So in disagreement with Joe, I would also point to justice as the overarching purpose of a trial. Trial's are not just fact-finding missions. Fact-finding falls mostly within the province of pre-trial discovery. Rather, trials are applications of the law to the facts. They seek to *weigh* the facts presented in light of the law at issue and to explore not just what happened but who should be responsible, to what degree, and in what manner.

Per Joe's other comments, I'm sure the book addresses this, but there're ample reasons why so much information is kept from the jury and why we're so riddled with procedure. To cast those reasons in a nutshell, I'd say our justice system is most horribly compromised when jurors are idiots and lawyers (and law enforcers) are fiendish. To control for such nastiness, the system just assumes jurors and lawyers are at their worst and corrects accordingly.

Jordan

Post 13

Thursday, July 10 - 4:28pm

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Joe, could you elaborate on the virtual store? What is the incentive for someone to purchase, say, Human Action from the store, as opposed to the Mises Institute's store?

Post 14

Thursday, July 10 - 4:39pm

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Rebirth of Reason gets a small percent, which goes to offset some of the cost of running the site.

Post 15

Thursday, July 10 - 5:02pm

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Jordan voices a dissenting opinion:

So in disagreement with Joe, I would also point to justice as the overarching purpose of a trial.

Why do we have trials? To discover the truth. Why should we discover truth?  To administer the proper justice.

Making justice "overarching" says consciousness is primary over reality. That's how I'm reading the paradigm.

If you put the cart before the horse, well, the horse can't do it's job, and the cart goes nowhere.

Trial's are not just fact-finding missions. Fact-finding falls mostly within the province of pre-trial discovery. Rather, trials are applications of the law to the facts. They seek to *weigh* the facts presented in light of the law at issue and to explore not just what happened but who should be responsible, to what degree, and in what manner.

I don't think that's true at all. Trials are an on going fact finding process. Witness testimony isn't supposed to be rehearsed, and witnesses aren't supposed to be aware of what questions will be asked by the opposition, or in what order they will be asked. Evidence and witnesses are sometimes found during a trial,  which adds another process to the process, but the process is all supposed to be an effort to discover truth through facts.

Trials aren't some kind of crude game show. Evidence shouldn't be discarded because it didn't make it into the discovery deadline on time.  That's just insulting to the whole idea of "justice."

I agree with Joe, as he pointed out:

But again, even if the truth was arrived at through inappropriate (or unjust) means, how is discarding the truth going to lead to justice? How can you have justice without truth? When the courts spend so much time trying to present a partial and/or skewed view of reality to the jurors, what reason would we have for expecting just results?

Post 16

Thursday, July 10 - 8:30pm

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That's what I figured Joe, just wanted to clarify.

Post 17

Friday, July 11 - 1:14pm

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Hi Teresa,

Trials, at base, are a way of resolving disputes. Truth sure helps with this process. But like I said, the process is not about figuring out what happened; it's not just an exercise in forensics.

And I don't see any consciousness-versus-existence primacy conflict here. Truth serves the dispute-resolution process, not vice versa. Truth is only part of the means for resolving disputes.

Trials are an on going fact finding process . . . . Evidence and witnesses are sometimes found during a trial . . . .

This doesn't speak to my point. Sure, new evidence sometimes pops out at trial. That is inevitable (and very annoying to us lawers). But mostly the evidence is gathered before trial, then presented at trial for assessment. The trial is not over upon close of evidence. There still needs to be an application of the law to that evidence -- not in order to figure out the truth -- but in order to resolve the dispute.

Evidence shouldn't be discarded because it didn't make it into the discovery deadline on time. That's just insulting to the whole idea of "justice."

This drops context. You make evidentiary exclusions seem arbitratry, wholly independent from the preservation of justice. If a party deliberately hides a vital piece of evidence from its opponent for tactical reasons, should it be allowed to benefit from this mischief during trial? Answer: No, that would be unjust. There are various ways to correct for such mischief, some of the harshest and rarest of which include an evidentiary exclusion. But there're procedural mechanisms built in to allow the presentation of evidence that was discovered past the discovery cut-off. Far from arbitrary, all of those mechanisms require the moving party to make a decent argument as to why the late new evidence should be exempt from the cut-off date.

Jordan

Post 18

Friday, July 11 - 4:30pm

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"Maintaining the system is not maintaining justice. Representing someone you know is guilty is not justice, it's rhetoric."
  U of California law student in 1995, commenting on the case of People v. O.J. Simpson

"My agenda has nothing to do with truth and justice. It has to do with winning. "
        Gary Weiss, defending lawyers' efforts to prevent evidence from being disclosed in    court in a large lawsuit against Prozac.

From "The Moral Compass of the American Lawyer," by Richard Zitrin and Carol M. Langford
____________________________________________________________________
Trials, at base, are a way of resolving disputes. Truth sure helps with this process. But like I said, the process is not about figuring out what happened; it's not just an exercise in forensics.

Aah. Jordan, I see. If that's true, why bother with the expense of hiring you and putting on the whole show of a trial? What's the point? Why don't both teams just turn in what they have, let a judge and jury review it, and leave it at that? I don't understand the maneuvering and manipulation involved by the parties, as you're defending it.

If we got rid of the lawyers, OJ would be locked up right now. No doubt about it. But he isn't locked up because the "truth" wasn't viewed as the means to the end. Juries aren't stupid, jury selection rules are.

Truth serves the dispute-resolution process, not vice versa. Truth is only part of the means for resolving disputes.

I'm wondering, what part does truth play? The "I'll use it if it helps my case," part?   Is the truth used as a means only when it is useful to the desired, "arbitrary" end? If truth is only a part, so is justice.

The trial is not over upon close of evidence.

That's for sure. On with the show!

There still needs to be an application of the law to that evidence -- not in order to figure out the truth -- but in order to resolve the dispute.

See, that's the thing. I think it's the law that's been, and is still being misinterpreted and manipulated. Contorted to the point of uselessness in a reckless abandonment of "Truth" as the sole means of the goal, which is Justice.

I said:

Evidence shouldn't be discarded because it didn't make it into the discovery deadline on time.  That's just insulting to the whole idea of "justice."

But Jordan cries foul:

This drops context.

Huh? Hows that? Since when is truth an act of dropping the context? Isn't truth The context?

You make evidentiary exclusions seem arbitratry, wholly independent from the preservation of justice.

Are you seriously denying many such exclusions aren't wholly arbitrary?

Calling something as dubious as "Miranda Rights" into the process, or questioning the validity of their application by law enforcement is what's "arbitrary," not my pointing out the fact.  Keeping the opposition buried in meaningless paperwork is arbitrary. Suppressing un-coerced confessions is arbitrary. Prosecuting on zero hard evidence is arbitrary.

There are various ways to correct for such mischief, some of the harshest and rarest of which include an evidentiary exclusion.

My stand is this: The Law, and it's many many tendrils, is now a vast industry. As an industry, I think it wise to examine it's methods and fruits of  production.

But there're procedural mechanisms built in to allow the presentation of evidence that was discovered past the discovery cut-off. Far from arbitrary, all of those mechanisms require the moving party to make a decent argument as to why the late new evidence should be exempt from the cut-off date.

It shouldn't be this game show difficult.

Post 19

Saturday, July 12 - 12:15am

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"Witness testimony isn't supposed to be rehearsed, and witnesses aren't supposed to be aware of what questions will be asked by the opposition, or in what order they will be asked."

Teresa -- By "should" do you mean "this is how things would work in an ideal world unlike the one we live in now?"

Because trials in the real world are mostly about winning. Sometimes truth and justice, despite the best efforts of lawyers, happen.

And if you have ever watched laws being made, as I have, you would hesitate to assume that the underlying laws being fought over in court battles have justice as their guiding motive.

I do agree that trials "should" be about justice. I just don't think that is the usual outcome.