> I don't think we can fix this wholesale at this point
Fix: Put me on the jury. E.g., the OP
mentions that at the start of a trial,
the judge can issue an "ethical rule order"
which says that the prosecutor and police
must provide to the defense all
evidence that might help the accused.
No ethical rule order? With me on the
jury, tough to get a conviction.
Prosecutor offered the accused a
plea bargain but now wants to
convict of a much more serious
crime? Nope: On the jury, I won't
convict of anything more serious
than the plea bargain offer.
Prosecutor presents evidence from the
police lab? I will have to work really
hard not to LOL.
Prosecutor presents DNA evidence? Just
shake my head and know that the chances
of that evidence being correct are
zip, zilch, and zero.
Prosecutor talks about probabilities?
Accused goes free. Even if 20 million
people have jaywalked, even if
from a simple random sample 99 44/100% of
people have jaywalked, that still is
zip, zilch, and zero evidence that the
accused jaywalked.
Police give testimony? Ha! In practice
the police are perfectly free to lie
under oath without any risk of being accused
of perjury. Ignore all testimony of police.
E.g., police found drugs in the accused
car? Might have been planted by the
police. Maybe the situation is just that
the accused had some cash and the
police just wanted to steal it. Can't
trust the police.
Accused is poor? Police love to go
after poor people, guilty or not.
Not everywhere, and only recently. Brady violations are unfortunately still too common. Probably because the only punishment for it (before Ken Anderson) is that the DA might have a conviction overturned, later, if caught.
Pattern jury instructions exist in most states to prevent arbitrary and unjustified decisions made by jurors. I don't agree with how they can be used in some cases, but you might be explicitly barred from making such decisions.
IANAL but my understanding is that
on a jury there are deliberations
and then votes. A juror gets to
vote; doesn't have to explain
the vote but just casts a vote.
If the judge can tell a juror
how they must vote, then we don't
need a jury. Else we have a jury,
and the jurors get to vote.
Maybe the judge instructs the jurors
to consider this, ignore that,
on and on. But still a juror
gets to vote and for reasons they
don't have to explain.
It's our jury system. Maybe some
lawyers, judges, etc. have had lots
of biggie ideas about this and that
legal detail about what would, could,
should be the case for juries,
instructions to the jurors, all sorts
of this and that. Still a juror
gets to sit in the jury box, watch
the trial, think, think for themselves,
and then vote and not explain their vote.
That's basically why we have juries.
I'm basically just saying that I would
perform the role of a juror, maybe
even a relatively skeptical juror.
I know very well that the
police, prosecutor,
and judges like
to get convictions. Well,
instead,
as a citizen and juror,
I like to get justice.
E.g., if the system is
unjust, I may be its next victim.
I don't like to see injustices.
I know well that the police,
prosecutor, and judge are pursuing
their careers and are getting paid
to do that. In particular, they
are getting paid, getting publicity,
promotions, progress in politics, etc.
from getting convictions that indicate
that they are solving crimes.
And I know that they get paid the
same whether the defendant is
really guilty or innocent with
essentially never any negative consequences
for convicting an innocent person.
And I know enough about human
nature in a system to know
that such people will sleep just
fine convicting an innocent person
because they can blame that on
the system. Where such people
can get into trouble is with
an acquital, again, the same
whether the defendant was guilty
or innocent. So, net, those people
want to convict and are ready,
willing, able, and eager to
lie, cheat, suppress or manufacture
evidence, cut deals with convicted
persons to get testimony, etc.
to get convictions.
It's adversarial, that is, a
fight, right?
In particular,
no way do I want some
non-objective people
out to rack up convictions, get headlines,
promotions, reelections,
votes for the mayor from being "tough
on crime", have an easy way to
claim that a case is "solved", etc.
convict an innocent person.
I'm arriving at the court room
with no preconceived notions
about the guilt or innocence of the
defendant but with a lot of
strong notions about the adversarial
nature of the mud wrestling match
I'm about to view.
So, to get a conviction, the police
and prosecutor will have to
make a solid case and where I
know that they are not objective,
fair, honest, or interested in
justice.
That the police and prosecutor
brought the case cuts no ice with
me, doesn't for a second make
me suspect that the defendant
is guilty.
And for a conviction, emotional
appeals will seriously hurt
the case of the police and prosecutor.
My career is in math, with theorems
and proofs, and computing: I long
since concluded that emotional
screaming does not a math proof make
or a software bug fix.
E.g., there's the line in The
Social Network where the lawyer
tells Zuck that with some little
remark he has "already lost the jury".
Well, not with me. I don't care
what the heck emotional this,
gut twisting that, subtle some other
thing, passion, pathos, poignancy,
drama, etc.: I'm no more emotional
than that granite column out front.
I can work hard not to be emotional
until there's a chance of convicting
an innocent person.
Or, the prosecutor claims
that the defendant
has a rap sheet a mile long and has
had various convictions before. But in this
trial the question is what did the defendant
do this time. To bring in the past of
the defendant is clearly an attempt to
bring emotion, maybe vengeance,
retaliation, or retribution, into the
case. Okay, prosecutor: I'm not
convicting based on emotion,
and you just lost your trust from me
for objectivity, fairness, and rationality.
Sure, the judge can tell the jury
this and that,
but as a juror I'm still free to ignore
what the judge says and obligated
to vote as I
see fit and not give reasons. The decision
just is not up to the police,
prosecutor, and
judge.
Instead, the decision is up to the
jury. However important the police,
prosecutor, and judge believe they
are, the real responsibility is
in the hands of the jury.
The Founding Fathers no doubt
expected that 12 disinterested citizens
would come to better decisions than
hardly objective
people interested in publicity, politics,
promotions, etc.
With a juror, even the letter of
the law doesn't have to count: If
a juror believes that the law is absurd,
then the juror is free to vote to acquit.
It's called the jury system. If I
have to serve, I'll try to be a good
juror.
Fix: Put me on the jury. E.g., the OP mentions that at the start of a trial, the judge can issue an "ethical rule order" which says that the prosecutor and police must provide to the defense all evidence that might help the accused.
No ethical rule order? With me on the jury, tough to get a conviction.
Prosecutor offered the accused a plea bargain but now wants to convict of a much more serious crime? Nope: On the jury, I won't convict of anything more serious than the plea bargain offer.
Prosecutor presents evidence from the police lab? I will have to work really hard not to LOL.
Prosecutor presents DNA evidence? Just shake my head and know that the chances of that evidence being correct are zip, zilch, and zero.
Prosecutor talks about probabilities? Accused goes free. Even if 20 million people have jaywalked, even if from a simple random sample 99 44/100% of people have jaywalked, that still is zip, zilch, and zero evidence that the accused jaywalked.
Police give testimony? Ha! In practice the police are perfectly free to lie under oath without any risk of being accused of perjury. Ignore all testimony of police. E.g., police found drugs in the accused car? Might have been planted by the police. Maybe the situation is just that the accused had some cash and the police just wanted to steal it. Can't trust the police.
Accused is poor? Police love to go after poor people, guilty or not.