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July 07, 2014

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Other observations - the peremptory challenge process seems rather dubious, akin to voodoo. I suppose if you're challenging someone you tried to dismiss for cause it makes a little more sense, otherwise it seems it's just rampant stereotyping. If they remain, I would limit them to the defense in criminal cases.

I'm sure having someone simultaneously translate the proceedings for you doesn't make you feel good about your chances of acquittal.

A simple metal detector and x-ray are apparently sufficient security for a place that constantly deals with known violent criminals. But god forbid the TSA ease off (the latest).

The reason that a simple metal detector and x-ray are sufficient for a court is that they aren't involved in an exercise in theater. They are just trying to provide real security.

TSA, in contrast, is all about appearances, and does little or nothing to enhance real security. The whole reason for TSA to keep people reminded that politicians have done something. That what they have done is utterly useless is simply beside the point.

TSA would say they are engaged in prevention, and the fact that they have never caught a terrorist attempting to board an aircraft with a working bomb just means the terrorists have given up trying (with an exception here or there) because they know security is so tight.

I'd probably have to give them that it's "better than nothing," but that's not really the question. As you note, is it better than a metal detector and x-ray, plus whatever else the saved funds could be spent on (like, say, schools).

I just got finished with jury duty a month ago. Yeah, there were some real idiots but not as bad as what you had. When I was a kid my dad often had work at the city court house & when school was out I would occasionally go with him & sit in court rooms while he worked. With the exception of electronic crap I don't think it is much worse now than in the early 60s.

Larry - I suppose once people have nothing to do but pay attention it might be better. But I was dreading being in deliberations with person X saying he thought the defendant was guilty/not guilty for completely irrelevant and/or nonsensical reason Z. I would have gone nuts.

Ugh, you would have loved the jury I was on, decades ago. We ended up hung 11-1 for conviction one of the charges.

Why the one against? A little old lady on the jury who was convinced that "all blacks look alike." Therefore it was impossible for the (black) undercover officer to positively identify the (black) defendant as the person from whom he made a face-to-face drug buy. She actually said that to the judge. (Did I mention that the judge was black, too? And looked nothing like either the defendant or the police officer.)

I'm not sure whether the DA or the PD was more astounded at the outcome. But after she and the defendant had left, everybody else sat around shaking their heads over the outcome.

Who says prejudice always works against you?

It was a deeply held belief eligible for protection under the RFRA.

No RFRA in 1975.

Not to mention that it isn't clear that it was a deeply held religious belief. So far, I've seen nothing that suggests that the Court's majority would be similarly sympathetic to non-religious beliefs. I sure wouldn't bet the ranch on it.

My expreience, over a hundred jury trials to verdict, is different. Sure, some jurors don't care and don't listen, but most try to do the job and most of the time they get it right--on the civil side. I agree that criminal defendants have an uphill fight absent really good counsel and at least some evidence in their favor. Minority defendants have an even rougher time of it on the criminal side.

Most of my cases are fairly complex--my last trial involved hurricane damage to forty different pieces of property owned by a middle sized city in Galveston County. I had the insurance company that supposedly underpaid by 3.5 million and owed that plus another 5mm because my client was just plain bad. Our defense was that we paid what we owed. We got nicked for 115K and attorneys fees and won on several 'affirmative defenses'. It will get sorted out on appeal and I expect my client will owe nothing in the end.

I almost always demand a jury. Much better than judges 95% of the time.

Would you do the same if you were defending criminal cases McKinney (demand a jury)? Genuinely curious.

I have been seated twice as a juror. Both times were a joke - stupid "peers", lazy judges and lawyers and complete misunderstanding of the facts in both cases. I often felt like the accused was the smartest one in the room. Our justice system is seriously broken and if you are wealthy and can afford good counsel, you get better "justice" than the next guy.

Why do you suppose it is that juries are better than judges for you?

Interesting coincidence, Ugh -- I have US District Court jury duty starting Monday, which is new for me: I've only ever been called for County. I've never been on a jury, only once made it as far as the voir dire room but my number never came up.

About 15 (?) years ago IIRC NJ went from a jury system that accepted many excuses to one that accepted very few. The result is that jury duty is much less onerous, because the pools are so much larger. I have no idea how this US District Court business works, I anticipate a Learning Experience.

FYI, Simple Justice (blog by criminal defense lawyer) discusses the many problems with both judges (frequently) and juries (occasionally) in a seemingly (to me, a non-lawyer) coherent and insightful way. If you're interested, it's probably worth paging through a couple of the blog posts. Fair warning, he seems to me chauvinistic at times, but I think his legal stuff is quite good. Some examples:

http://blog.simplejustice.us/2014/06/23/judge-wilkinsons-view-of-the-good/

http://blog.simplejustice.us/2014/04/26/who-do-you-trust/

http://blog.simplejustice.us/2014/04/22/ladies-and-gentlemen-of-the-jury-why-would-they-do-this/

A recurring theme in his posts is that judges tend to trust and defer to the prosecution more than the defense. There was one in particular that I couldn't find, but discusses in a fairly honest way: The majority of defendants are guilty, eventually all the unwashed, poor, ill-mannered defendants get lumped together in judges' minds. The rare innocent one becomes guilty by simply being accused...because all the other defendants were guilty and its so hard to distinguish them.

It's something I saw a little bit of first hand in a recent jury trial. One witness (arresting officer), during a pat down for weapons (necessary for safety), found a meth pipe on accused (only physical evidence). After arrest, accused confessed to meth use and possession...in an unrecorded interview with arresting officer at the scene.

And yeah, we heard the "Why would a police officer lie or plant evidence?" phrase *a lot*, but the judge admonished us repeatedly that we should give no more weight to an officer's testimony than anybody else.

But after we returned after 2 days of deliberation as hung (10-2, innocent) and it was pretty clear he was annoyed and was also convinced it was 10-2 to convict. He urged the hold-outs to really carefully consider the relative trustworthiness of the testimony (officer and accused). Hint hint, the mexican guy in workout pants is probably lying.

Another day of deliberation shifted to 9-3, and he declared us hung and it ended in mistrial.

But overall, I'd say it worked. There were certainly people in the room I disagreed with. There were certainly people who had some odd reasoning behind their decisions. But I think there are 2 very real advantages to juries:

1) they can be (although aren't always) a bulwark against the constant stream of barely differentiated defendants presented to a judge or tribunal. If you are trying to winnow out a small percentage of the innocent out of a pool of people that are guilty...how long before the judge loses the ability to empathize with the defendants? To really dig deep and ask if the burden of proof has been met?

2) they allow the mass of generally law-abiding (or more discreet) citizens to see and hear the people that are getting churned in our justice system. Hearing that 100 degenerate low lifes have ended up in jail because they smoked weed is one thing. Voting to send one there yourself is another.

Maybe overall juries "don't work". I don't know. But I can't even think of a way to begin to measure that, beyond the number of innocents we imprison. But I can't really think of a good metric to compare one system to another...if we had an "gold standard" of getting it right in court cases, we'd probably be using it.

This (http://blog.simplejustice.us/2014/04/19/incentives-revisited-which-lying-liars-do-you-favor/ )was the post I was thinking of, which is largely a response to a blog post (http://herculesandtheumpire.com/2014/04/18/why-does-kopf-believe-cops-most-of-the-time/ ) by a sitting federal judge about why he tends to believe LEOs over defendants.

Both are worth reading (they are really the result of a back and forth between the two bloggers). But I think the this line, by Judge Kopf, pretty much sums it up:

While I do not think of myself as “pro prosecution,” I deeply fear for our society because of the many predators I see on a daily basis. I suppose that if I am going to err, I err on the side of what I see as order.

I've seen a few jury trials from within the box, and it has been informative.

In one brief period I was on 2 juries in Oakland and saw the pretty stupid level of little criminal cases in superior court. The second of them was amusing, when they did the voir dire on a sweet, gray-haired, very well (conservatively) dressed lady; then the bored and not very sharp defense attorney did a peremptory challenge. No apparent reason except that such a lady would necessarily be against any poor black defendant. Little did he know, which I knew well from the earlier case, that the very sweet lady hardly had the heart to convict *anybody* of anything. Pure gold, down the toilet.

But a case that this post reminds me of is from a panel I escaped from a couple of years ago in Marin County. I sat through a pretty long voir dire without being selected to go up and be questioned, and I actually have some mixed feelings about being left out.

It became clear during all the questioning that the case pitted firepersons against policepersons (some kind of picnic turning into a brawl, apparently). And each jury prospect was asked whether he/she/it felt that police *are held to* a higher standard than others. Emphasis added, but the phraseology is verbatim. Passive voice and all.

Now, if asked that in a rational way (e.g., whether *I* gave any different weight to their testimony), I'd find it trivial: according to everything I've heard from a judge's instructions, the law says I give equal weight to all. Which is exactly what I'd say, including the judges, so as to be annoying and perhaps disruptive to the process.

But this? Could you answer it? Of course the correct answer would be "Held by whom, asshole?" But assuming we don't want a Contempt charge, one could politely act naive and ask for clarification of the question -- which would likely get you challenged as a smart-ass.

Weird. And from the inferred desctription, it sounded as if the trial, blue vs red, would call for popcorn. But not quite enough to make me come back to watch the whole thing.

...if we had an "gold standard" of getting it right in court cases, we'd probably be using it.

Call me a cynic (which would be correct btw) but I have strong doubts about that. Too many vested interests to keep the system broken (plus strong unwillingness to properly finance it in the first place).
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For comparision, over here we have not jury but Schöffen duty for civil cases (in lower courts) where the judge panel gets filled up with laypeople (typically 1 judge, 2 Schöffen).

Would you do the same if you were defending criminal cases McKinney (demand a jury)? Genuinely curious.

Probably. A lot would depend on the facts of the case. To win a criminal case you need some evidence, or a lack of state's evidence, that is palpable enough to persuade a reasonable jury that there is a reasonable doubt of guilt. I've done exactly four criminal cases in my entire career, all of them pro bono. Three of my clients were flat out guilty and happy to plead out. The fourth was innocent and when I wouldn't plead, the state dropped the charges.

Civil and criminal are quite different. People do defer to police officers and the defendant's failure to take the stand is held against him/her, even if on a less than fully conscious level. Plus, the evidence is usually pretty overwhelming, or the crime is so outrageous the jury gets inflamed.

On the civil side, there are usually several jurors who can just as easily or more easily see themselves or their employer getting sued without just cause. A lot of times, people who are suing for money damages and their lawyers come across as greedy. A lot of times, people suing exaggerate symptoms and damages. You don't have that, much, on the criminal side.

On the civil side, I try at least one case a year where my client is definitely at fault, and the damages are usually pretty significant (loss of a limb, or wrongful death or what have you). I'm trying the case on damages because the demand is too high. I'd rather have a jury do that, particularly in an urban county. If a jury has 3-5 educated citizens who take their job seriously, that core group will generally lead the rest of the jury (known in the vernacular as 'furniture' or 'spare tires') in the right direction. Sometimes I draw a bad panel and get a bad jury. When that happens, if I can't settle, I lose.

As it happens, I will try a case in the next two weeks where my client is at fault but the plaintiff's damages are BS and I expect the jury to award between zero and 5K.

Interesting coincidence, Ugh -- I have US District Court jury duty starting Monday, which is new for me: I've only ever been called for County. I've never been on a jury, only once made it as far as the voir dire room but my number never came up.

Doc, jury service should be a very rewarding experience. I disagree with those who criticize it. Every citizen has the duty to serve and, more importantly, to serve conscientiously. This includes disqualifying yourself if, after you hear the outline of the case, your own views cause you to lean toward one side or the other. The system works most of the time and that is because, most of the time, enough people force themselves to put aside their own biases etc and give both sides a fair hearing and then follow the law from the judge. The law may and often does produce a result that is not what the heart would want. Jurors who go with the heart and against the law may be nice people, but they are not good jurors and they have let the system down. I think you'll do great. Good luck and be patient with the lawyers. The two biggest complaints I get from jurors is that I didn't cover X in enough detail and I spent too much time on Y. Here's the problem: the jury can't tell either side when they are "getting it" or "when they are not getting it". It's the human element of the system. Be patient, stay focused on the evidence, listen for who is shooting straight and who has an agenda. Do all of that, follow the law, and you'll be inside the parameters of a fair trial.

Call me a cynic (which would be correct btw) but I have strong doubts about that. Too many vested interests to keep the system broken (plus strong unwillingness to properly finance it in the first place).

This is largely incorrect. The system certainly can be jiggered and it often is when corruption or gross bias by the judge is in place. "Vested interests" can play a role, but it's almost always a function of local politics and local improper influence by one side or the other. Trial lawyers typically know when they are walking into a buzz saw and advise their clients accordingly. My trial in two weeks will be in a fair venue, fair to both sides. Next fall, I will try a case that I will likely lose (and lose big, most likely) for reasons having very little to do with the actual evidence. That case will get a lot of press statewide and maybe a blurb or two beyond Texas. In fact, it's already gotten a fair amount of buzz, even out of state. That's fine. I'm already working on the appeal. My last trial was perceived to be a significant uphill fight for my side. Turned out a lot differently. The judge called the rulings down the middle and enough of the jury was clued in on the facts, and a lot of the BS my opponents ran up the flagpole, so that a fair result was obtained.

I've only been asked to actually enter a courtroom and sit for jury selection 3 times. Only one of those times did they actually get around to the jury selection process; the other two times the defendant pled before it got to that stage.

The one time I was actually questioned about background, etc was a case where the defendant was accused of perpetrating a string of robberies in my part of town where the MO was breaking into a house and stealing Christmas presents of value, just prior to Christmas.

I am not making this up.

The defendant was found to have all of this loot stored in his apartment. Again, not making this up.

I have some empathy for the poor PD who had to struggle his way through the initial questions, like: how many of you have immediate family or friends in law enforcement? About two-thirds of the pool had their hands in the air. I didn't, because my closest relative in law enforcement is my wife's cousin.

One of the jury pool was actually a law-school classmate with the judge. That was a fairly easy strike, but there was really very little possibility that the PD could have gotten his client a better deal through trial than through a plea deal.

It's not that police never plant evidence; it's that the police planting an entire apartment full of evidence (we're talking a LOT of stuff, here) without anyone taking note of it, or being caught in the process, is just very implausible. From what I recall, the guy's neighbors had noticed that he was moving a lot of stuff in.

Most of the jury pools I have been grouped with have been fairly not-stupid bunches of people, but that doesn't mean you never get idiots.

McK:

The two biggest complaints I get from jurors is that I didn't cover X in enough detail and I spent too much time on Y. Here's the problem: the jury can't tell either side when they are "getting it" or "when they are not getting it". It's the human element of the system.

In the CA courts I've juried for, the jury has had a chance to write down questions for the lawyers to ask witnesses (which they may decide to or not, and also the judge had a role, I'm assuming to decide if such questions were admissible). It wasn't perfect, but I thought it helped guide some of the jurors.

Is that not a broadly true feature of jury trials? I have no experience out of 2 superior courts in CA.

Slarti:

Most of the jury pools I have been grouped with have been fairly not-stupid bunches of people, but that doesn't mean you never get idiots.

And to really sway a jury trial, you'd need idiots with strong opinions. On top of that, I'd imagine most jury trials really aren't that 'complex', in that there is an obvious answer that is buried in piles of details that have to be winnowed out by the jury on their own.

The finer points of rules of evidence and interpretation of law is probably out of reach of the majority of jurors, who lack training in law. But being convinced by beyond reasonable doubt (or preponderance of evidence) or not, I would like to think is well within reach of most jurors.

where the judge panel gets filled up with laypeople (typically 1 judge, 2 Schöffen).

How does this work for the deliberations? Does the judge normally lead the discussion and then there is a vote? Is the judge more of an advisor? Or is the judge really the one making the ruling, but the laypeople have a chance to weigh in?

The Schöffen are supposed to be equal to the judge. If there is a dissent between the judge and the two Schöffen, there is a majority decision, so the two Schöffen may garner 2/3 of the vote. But in practise, they are usually not as well educated in law and procedure and so usually defer to the judge. They have the right to ask questions during trial and to look at all paperwork. The idea behind it all is to provide external oversight to the court and to foster trust in the general populace. Schöffen can judge civil and criminal cases. German Wikipedia says that only about 13% of all lower court criminal trials are still conducted with Schöffen.

An important difference is that the 'continental' system (i.e. Europe outside the UK) is not adversarial in nature (at least in theory), i.e. not primarily a prize fight between prosecution and defence. In theory both sides work with the judge(s) in order to find the truth in the matter together. No surprise that the court drama is primarily an Anglo-Saxon genre.
A major advantage of this 'boring' way of doing things is that prosecutors have little incentive to use foul means to win because 'winning in court' gives little career let alone political advantages. Prosecutors or judges going into politics is frowned upon by both the legal community and the population in general. They are not supposed to 'win' cases but to solve them.

Hartmut, I just want to say that I really appreciate the insight that you (and is(de)) are giving us into a different legal system than I, at least, am familiar with.

My familiarity too is rather limited. My father did some Schöffen duty decades ago, I never got called up. And I am not a lawyer, although I occasionally get suspected as one (a certain type of pedantry I am affected by is usually attributed to being either an old-fashioned teacher* or a lawyer).

*which I am not yet, although it may become a job of last resort (with the rather strange combo of chemistry and Latin). Likely it will/would be either to my and/or the students' detriment.

Hartmut:

Prosecutors or judges going into politics is frowned upon by both the legal community and the population in general. They are not supposed to 'win' cases but to solve them.

I think this is probably a key component of the problems we (the US) have in our criminal justice system.

Our culture, in general, doesn't really frown on overzealous prosecution.

But as a question, if the defense and the prosecution are both trying to find the truth...in what way are they on different sides? Or to put it a different way, what function does the defense play, and what function does the prosecution play?

There is of course a difference between theory and reality (we are dealing with humans even here). Where it becomes relevant is in the handling of evidence. A lot of trickery concerning that, common in courts using the Anglo-Saxon model, is simply illegal. Not an expert there but I think the defense is a bit stronger since some rules binding the state prosecutor do not apply to the defense lawyer (not fully sure about public defenders).

Our culture, in general, doesn't really frown on overzealous prosecution.

This is maybe so, but even if so the real harm, IMO, comes from what happens once you're convicted (if you're convicted) and inside the system.

We have a pretty wild and wacky sentencing regime, and if you end up incarcerated, that's it's own special kind of hell.

The criminal side of things just seems profoundly dysfunctional to me, for any reasonable meaning of "functional".

We have a pretty wild and wacky sentencing regime.

Yes, some uniformity seems appropriate. I suggest we all be subject to the same rules that appear to apply to corporations, i.e., neither admit nor deny guilt, hand over a bit of loose pocket change, and go forth to sin no more, or claim to.

Think of all the resources we could then devote to better things!

i have been called for jury duty on 6 occasions. twice the parties settled before voir dire, once i was at the end of the line of potential jurors and they had empaneled a jury before they got to me. on another occasion the parties settled after i had been through 5 days of voir dire narrowing a pool of 180+ potential jurors down to 12 jurors and 4 alternates. the issues in that case appeared to revolve around mineral rights, water rights, easements, and professional malfeasance on the part of the attorney who prepared a complex will. i assume those were the issues because those were the concepts obliquely approached during the course of questioning.

in two instances i actually served on a jury. the first time was a federal civil case involving the americans with disabilities act. neither the plaintiff's attorney nor the defendant's attorney seemed to know what they were doing. neither side was able to create any kind of a coherent narrative for the case. almost everything they did served to muddy and confuse. the only strategy either side used that made any sense was the way the defendant's attorney (representing a large manufacturer of central heat and air units) kept touching on the economic impact of the company to the area and the greediness of people suing for damages. after we went to the jury room to deliberate i began reading through the boxes of exhibits and realized that the plaintiff actually had a pretty good case for her assertions that a.)the company had acted as if her allergy to nickel was a disability and b.)they immediately began discriminating against her because of it. this included internal memos from the company describing her situation in terms that made it clear they were deliberately trying to force her to quit. it was very disappointing in the end because i felt that she had been poorly served by her lawyer. i tried to point out these details to the other jurors but most of them had given their support to a juror who contended that suits for damages were an attempt by leeches to suck the lifeblood out of their betters. the judge had made it clear that he was not going to accept a hung jury until we had deliberated for at least 3-5 days so i gave up. i was younger then and i believe if i found myself in a similar position now i would have held out for the mistrial.

the other jury i served on was over a landlord/tenant dispute. this was just a few years ago and i had a lot of fun with that one. the first thing i did was to suggest that a pregnant, hispanic, twenty-something would make a fine foreperson while two white guys a little older than i am were bragging about how many times they had served as foreman. i'm a white guy in my mid-50s btw. the look on their faces when they realized they weren't going to be foreman was almost as entertaining as the look on the judge's and attorneys' faces when we came out and she was our foreperson. the second bit of fun i had was in regards to our verdict. it was clear to all of us, even the conservative older guys, that the landlord was screwing this woman over because she was helping other tenants in the retirement home they all lived in to uphold their rights under the laws of the state of texas and the united states. they were seeking to have her evicted because they had refused to renew her lease and they also sought three months rent (around $8000) because she had not paid since they terminated her lease. what we wanted to do was force the landlord to issue her a new lease but the judge told us we couldn't do that so we had no choice but to rule in favor of her eviction. regarding the compensation sought by the landlord, we ruled that she would be required to pay them $1. the look on the faces of the landlord and his attorney when the judge read that ruling were pricelss.

personally, despite the mixed bag, i consider jury duty to be a rewarding experience if only for the opportunity to study our fellow human beings under unusual circumstances.

Called for duty at a largish metropolitan county court cattle call, I was in a group selected to decamp to a courtroom for the anticipated voir dire. We all sat in an empty courtroom for about two hours. Then the judge, the attorneys, and the bailiff finally arrived.

There was a brief back and forth at the bench, and the judge looked up and asked the bailiff, "How long have these people been here?"

"Two hours," replied the bailiff.

"Bring me a new set of jurors," the judge ordered.

And so it was done.

Later, I was bounced at voir dire when I foolishly admitted that more than a few of my close relatives were attorneys. Apparently that was worse than having watched every episode of Perry Mason.

For my 2 cents, the jury pool consists mostly of pretty good and civic minded folks. The ones you would not want on a jury either ignore the summons or find a way to skate. The process works. The system, perhaps not so much.

A major advantage of this 'boring' way of doing things is that prosecutors have little incentive to use foul means to win because 'winning in court' gives little career let alone political advantages.

This is an absolutely fair point - and yet it is quite possible to have an adversarial system without the extreme prosecutorial zealotry evident in the US - one only has to compare incarceration rates between the US and the UK.

I would suppose that is thanks to our having a national Crown Prosecution Service - essentially a permanent department of the civil service - whose leadership is by definition outside of party politics.
My knowledge of the US system is limited, but it seems to be something of a cliche that the position of DA (often itself elected) is a stepping stone to a political career.

In any system, the intersection of politics and the administration of justice is problematic, and a complete separation of the two things impossible (and probably undesirable), but there ought, IMO, to be a fairly plain boundary between those who make elected to make policy and those who administer it - and it should not be easy to step from one role to the other.

I'd be interested in Hartmut's take on miscarriages of justice. Are they less likely; less or more difficult to correct etc. under the continental system ?

The recently settled Central Park jogger case is good evidence that legal professionals in the US will defend for years (post the exonerating DNA) an obviously unfair prosecutorial process.
http://en.wikipedia.org/wiki/Central_Park_jogger_case

I'm not suggesting the UK has been any better on this score, as the case of the Guildford Four http://en.wikipedia.org/wiki/Guilford_Four shows.
After they had been completely exonerated, and their conviction had been quashed, (the admittedly rather old) Lord Denning - who had chaired the Court of Appeal for twenty years - remarked that if the Guildford Four had been hanged "They'd probably have hanged the right men. Just not proved against them, that's all".

He had previously expressed a similar opinion regarding the Birmingham Six:
"Hanging ought to be retained for murder most foul. We shouldn't have all these campaigns to get the Birmingham Six released if they'd been hanged. They'd have been forgotten, and the whole community would be satisfied... It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned."

There is of course a difference between theory and reality

As always :)

Where it becomes relevant is in the handling of evidence. A lot of trickery concerning that, common in courts using the Anglo-Saxon model, is simply illegal.

I have a friend that has supported a few criminal defense trials when he was between regular work as an atty. To hear him speak, its practically expected that the prosecution will conceal exculpatory evidence they uncover.

Against the rules (i.e. illegal), but nobody cares. Theory, reality, etc.

I don't have direct experience as an atty, but my understanding is that a lot of the trickery that is commonplace (according to my second hand information), is illegal. It's just hard for the defense to find out and not much happens if they do find out.

We have a pretty wild and wacky sentencing regime

No argument here. I'm glad SCOTUS recently allowed for jury scrutiny of sentence enhancements (http://en.wikipedia.org/wiki/Alleyne_v._United_States ).

I'd also give credit to Holder for sentencing reforms for US attorneys (http://www.washingtonpost.com/world/national-security/holder-will-call-for-reduced-sentences-for-low-level-drug-offenders/2014/03/12/625ed9e6-aa12-11e3-8599-ce7295b6851c_story.html ), although I think a lot more needs to be done.

Encourage your congresscritters to pass the Smarter Sentencing Act. It's not perfect (it even adds mandatory minimums in its current form), but it would do a lot of good. (http://famm.org/s-1410-the-smarter-sentencing-act/ )

There is a great deal wrong with our system. I just don't think jury trials is part of the wrong.

An old, but heartwarming, example of a juror that took his job very seriously:

(http://legalblogwatch.typepad.com/legal_blog_watch/2008/06/juror-to-judge.html )

It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case. That is how you instructed your jury in this case to perform and for good reason.

Wild and wacky indeed.

I'd be interested in Hartmut's take on miscarriages of justice. Are they less likely; less or more difficult to correct etc. under the continental system ?

I have no statistics there but we are just now in the aftermath of a textbook example of it. A guy had accused his (ex?)wife of criminal activity and her response was to have him institutionalized (for allegedly threatening her life and limb). Although his claims were later proven to be true the court upheld him being kept indefinitely and did all it could to prevent a revision. On the one hand it was clearly a coverup of judicial malpractice but iirc there was also a personal connection between public officials and the wife hinting at more sinister motives. From inside the madhouse the guys's options were rather limited and the work that after years led to his release was done by outside groups on his behalf. It did not help that the guy is a bit 'difficult' to start with. Now he is out of the bedlam but in the court system again.
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There are now and then cases of political corruption affecting the courts and in general (federal) law is applied a wee bit differently in different parts of the country on certain topics, abortion in the past making the top of the list. In that specific case it led to a major change in the law because the old one turned out to be too open to widely different interpretation by courts (too strict in the South, too lax in the North). Today we have a (foul*) compromise that most people can live with and keeps the zealots from interfering (at least the robed ones).
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I think there will be on average less malpractice in the continental system, if a) the state is neutral and b) the judicial system gets properly financed. If condition b) is not met, the likelihood of miscarriage goes up steeply and when a) is not met, abuse will be rampant.
I think a jury system can work as a (limited) buffer against violations of a) but is more sensitive to failure in case of b) and in the worst case can become an amplifier.
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As long as I have trust in the judicial system, I'd put my fate rather in the hand of legal professionals than a lay jury. Should it dwindle, then a jury becomes more appealing.
But as the saying goes: „Coram iudice et in alto mare in manu dei soli sumus." (On the high seas and before a court of law/judge we are in G#d's hand alone).

*formally still illegal (outside the traditional exceptions) but with no prosecution if some rather simple conditions are met

"The Continental System"?

The one that Amanda Knox ran afoul of?

(not that you can't find other, awful examples in all systems)

If there are not consequences, HARSH consequences for the abuse of proprietorial and judicial power, it will repeat and continue.

I got as far as voir dire twice. I was eliminated from a sex abuse trial because I said that kids sometimes lie or can be manipulated, and eliminated from a stalking/intimidation trial because I said that it is inherently threatening to open carry while uninvited on private property of someone who has a restraining order against you.

Duh.

WEll, I didn't really want to be on either jury. I could have made it through vior dire by being less forthright in my answers because it was obvious what the lawyers were looking for.

Which leaves me with a question: if they eliminate everyone who gives honest answers reflecting common sense, who is left? I kind of remember Mark Twain saying some very caustic things about juries.

@laura koerbeer

were you struck for cause or as one of the peremptory strikes each side has?

The one that Amanda Knox ran afoul of?

To be nasty, we are talking about Italy. I doubt that it would have made an ounce of difference, if they had used the Anglo-Saxon system. Given the way the press covered the case, a burning at the stake would not have been out of the question.
Btw, I have not the slightest idea, whether she was guilty or not.

One other consideration:
Twelve Angry Men is just so much better a movie prospect than, say, One Mildly Irritated Examining Magistrate...

Speaking of 12 Angry Men, there is a Japanese movie called Juni nin no Yasashi Nihonjin that takes that premise, sets it in Japan and then has lots of fun with it. The title translation 12 Nice Japanese men might give you an idea of what it is like.

"A major advantage of this 'boring' way of doing things is that prosecutors have little incentive to use foul means to win because 'winning in court' gives little career let alone political advantages. "

Dreyfus might beg to differ.

"little incentive" is not the same as "no incentive." Not to mention that those involved are members of the larger society as well. And so prey, at least to some degree, to the kinds of prejudice that the rest of their society displays.

There are all kinds of 'incentives'. Not least the belief that the end justifies the means...

Lay jurors are unlikely to express this kind of professional opinion:
"It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned..."

(If innocent,) I'd far rather be judged by an outsider than a functionary of the system.

Scott P., Dreyfus is imo a case study of the originally working system getting corrupted by outside influence. There was at the beginning of the affair a consent in the system that it was a false lead and Dreyfus should be released as quickly as possible. Then the RW and clerical press got wind of it and started an antisemitic firestorm that cowed the court. After that it was ass-covering (and politics). I doubt that a single Dreyfusard would have gotten into a jury had there been one (or out alive).
Plus, it was not the public court system but the secretive military system of justice.
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Nigel, with me it is the opposite way. If the system is really corrupt, it won't matter and if it is not, I'd put my confidence rather into professionals, not easily swayed laypeople (at least not a large group of them). Additional lay judges under the supervision of legal professionals (see Schöffen discussion above) is more to my liking. If it has turned into Volksgerichtshof already, the game is lost anyway.
Again, my background is in modern day Germany where the courts have an imo deserved good reputation with major counter examples rare and far between (and most of them directly political). The situation was of course different in the past but at the moment I see no signs of getting back there (while I see increasing rot in the US there with run amuck local state attorneys at the bottom and the group of con-hacks at the top).

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Whatnot


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