Due Process is a Sham
- Thread starter Traditio
- Start date
Something, note, which has nothing to do with the evidence. You see why this is a complete perversion of justice, yes?
A small percentage of innocents have been found guilty.
Do you really think none get framed?
LA
This is assuming a case even gets to trial. After 8 years, 3 judicial districts and 5 D.A.s I've given up on the idea of looking for a willing prosecutor and am moving to a county that has one. Our system of justice has many moving parts, any one of which can drop the ball, as it were. This is, I think, possibly an over reaction on the part of our fore fathers to their experiences with the British Star Chamber.
Yes. The best way to ensure justice is to remove most of those moving parts and simplify the process.
| Grenade! | |
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1. How small?
2. How do you know that they're innocent?
3. I'd like to point out that this has happened even with due process.
In other words: What's your point?
If it happens, it's the exception, not the rule. Laws should be made for the rule, not for the exception.
They do.
Depends on the evidence. Most cases are a gamble to one degree or another. That's partly why plea deals get made.
You don't really understand any of this, do you...rather, the prosecutor is charged with first determining the nature of the crime and if there is sufficient evidence to warrant prosecution. Then, skipping over grand juries because not all cases have them, the defense attorney is engaged to protect the rights of his client, which can entail everything from pursuing plea deals to countering on point and in trial.
I'll give you an example: a man is seen running from the scene of a crime by a witness. I call another witness who testifies that a) the man is in fact a habitual runner and b) the area where the crime took place is the same area he routinely runs through and the time was altered (he ran later that day) because he worked later that day.
That said, it isn't the job of the defense attorney to determine guilt. You're leaving the judge/jury out. They're the determiners here.
No, but thanks for illustrating why people without a particular education in a thing aren't qualified to speak to it without making fundamental errors that lead to some fairly peculiar conclusions.
No, but there's usually sufficient reason to consider or it won't make it to bill, let alone trial. Prosecutors don't really want to put innocent people in jail and it's a weighted battle to begin with.
Re: one side knows and is lying.
Nope. And most won't ask. Their job isn't as the arbiter of truth.
The prosecutor determines to his/her satisfaction if there is sufficient evidence to charge and prosecute. The defense attorney protects the rights of the charged and the judge or jury decides the outcome.
Oh why not? In for an insufficiently informed penny and whatnot...
Well, there's something wrong here, so we almost agree.
lain: I'm still marveling over your use of think and Judge Dredd in the same sentence. Good luck with that. 
I believe that you've misunderstood me, TH. When I said "how the trial turns out," I didn't mean verdict and sentencing. I meant that both of the attorneys know in advance exactly what evidence is going to be presented. I.e., they basically know all of the arguments that are going to be made.
How does this differ from what I said?
Prosecuting attorney: Based on the evidence, the defendent is guilty of x and deserves y penalty.
Defense attorney: Based on the evidence, it is not the case that, etc.
Do you disagree with my assessment?
Why do we need two different attorneys (one of whom is basically being paid to ignore the latter fact), a judge and a jury to take these facts into account?
Ok. Let us take the above example that you gave of evidence and counter evidence. The defense attorney is presenting counter-evidence. We may assume that this evidence constitutes a premise for an argument. What argument would the defense attorney be making? Give me the syllogism. Here's the syllogism that I am seeing:
1. Y is proposed as evidence of the defendent's guilt.
2. X indicates that Y is not evidence of the defendent's guilt.
3. Based on Y, it is not evident that the defendent is guilty.
Is that the syllogism that you are seeing?
Have you read the comics? I don't think that any reasonable human being (who is even halfway decent and is not a hardened criminal) can read the comics and not admit that the Judge system is better than anything that's ever been attempted so far in human history.
Well, as I suggested earlier, that is similar to what we had with the Star Chamber and that didn't work out so well ... hence our present system. In my experience, the weakest link in the chain that is our present judicial system is the prosecutor. They have WAY too much discretion and there is almost no way to compel them to do their job should they decide not to nor reign them in when they are over zealous. In addition there is the monetary factor.
You may have heard the old saw that goes "Those that can do and those that can't teach." Translated to the legal profession this might read, "Those that can litigate and those that can't run for office." There is much more money to be made as a defense attorney than there is as an elected District or County Attorney for those that are proficient at litigating. Suffice to say this situation doesn't long find the best and the brightest plying their trade as prosecutors. Add to this the case load faced by any given prosecutor and it is not hard to image that compromise is the order of the day in all but the most sensational of cases. Of such cases are prosecutorial careers built.
In law "may" is a suggestion and "shall" is an actionable directive. I think a few more "shalls" and a few less "mays" as it concerns the office of public prosecutor might be in order.
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Tinark
Active member
The United States has a higher percent of its people in prison than China, North Korea, Iran, Russia, and Saudi Arabia (it's the highest in the world), and Traditio worries about too many guilty people going free. Good one, you almost had me fooled there for a minute :up:
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Indeed we do ... and I think that likely has something to do with the preponderance of laws concerning consensual crimes here, lawyers per capita here and NAFTA/GATT.
Now, there's a thread.
To a large extent. You know the witnesses and evidence. You don't necessarily know how the defense will address the prosecution's narrative until they do. There's an element of the unexpected in everything, even testimony, which is why you have cross and redirect, etc.
I got a little ahead of you, but essentially it's not a miracle or even a surprise if you understand the process and what the jobs are and aren't.
Yes, it's an over simplification. The defense does a number of things. It may simply refute the evidence provided, or challenge the veracity of it, the manner of its collection, the chain of possession, ect. (largely procedural checks of real importance relative to rights). It may move on the insufficiency for a directed verdict, it may do all that and supply an alternate reading/narrative of the evidence in route to defeating the prosecutorial narrative relative to the standard for conviction. And I'm doing this off the top of my head, so I've likely left a couple of things out.
Because they serve as reasoned checks and balances against a greater likelihood of error in enforcing law. Consider, the charges begin with the police then reach a prosecutor and even a grand jury before making their way to indictment and then trial. All along that course is the potential for willful or accidental misconduct and error. All along that course the rights of the accused are at stake.
Would you want the doctor who performed your operation acting as the judge of whether the medical complications that arose from your surgery were the result of malpractice?
Of course you wouldn't. And you don't want the same people who charged you to determine the outcome of the charge. So we have an adversarial system. One side presents the prosecution and we have a second lawyer singularly dedicated to making sure the rights of the accused are protected and that the prosecutor meets his obligations before the law.
Then we have a jury, selected to act as an additional check if the defendant doesn't believe he can or should trust a judge (who is by nature of his office more closely allied with the state that charged him) to hear both the reasons and procedure that led to the moment and the answer of the defense attorney who scrutinized every aspect and element.
No, but I've watched the movies on it.
The more concentrated the power in any system the more likely an unjust outcome and corruption. Ours works. And it works in the overwhelming majority of cases. That's why 98% of cases never make trial and of those that do and are subsequently appealed most remain in the verdict rendered.
The syllogism section wasn't necessary unless you had a larger point. I think I've covered what's germane to answering your objection.
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Seems to me he has it pretty close to right.
It is worse that that. Often neither side wants the jury to know the whole truth.
yes, jury selection begins before it actually "begins"
Quite often innocent defendants plead guilty to "a lesser charge" because they have far too much to lose by risking going to trial.
Tinark
Active member
Town Heretic said:
This I think is one of the main flaws in his "Judge Dredd" idea, among many others.
Police sometimes violate civil rights in their collection of evidence. They sometimes don't gather the evidence carefully. They make mistakes. Eyewitnesses are not always credible. People make false accusations.
Essentially he is saying that everyone who is arrested should be tried by the arresting cop (thereby almost guaranteeing guilt) which is just asinine in the extreme.
I don't know how often that actually is. You hear people say that but mostly they're doing the human thing. They can't tell you they're innocent exactly because they've admitted to some wrong doing, but they don't want to look guilty to people whose opinions matter.
Look, if you lie under oath I don't have any real sympathy for you and less reason to believe you. And that's what pleading to a lesser involves. You have to tell a judge you did the thing you're admitting to. You're under oath. So if you tell me "I only did it because..." it's like perjuring yourself but then saying, "Believe me."