I really think false testimony should carry the punishment the accused is facing.
I also think prosecutors are absolutely negligent when it comes to the police and others they need a relationship with for their other day to day activities.
I've kind of come to the conclusion that we need a _separate_ prosecutor's office for police matters.
I agree, but want to point out that the plea for a lesser offense system is probably a bigger problem than false testimony. Cops and DA's in the US are allowed to lie through their teeth, at will, to get a plea deal. Often, they are aware the case is really weak, but that the suspect has no money to fight them.
It's just as bullying as false testimony, but far more common. I suspect a magnitude more innocent people are screwed by this than by purgery. Other countries, like the UK, seem to have more fair systems.
First of all, other countries don't have the stupid plea system, so prosecutors are not racing to get a plea deal at all cost. And a lot of countries don't even have peer juries(which in my opinion is another crazy invention) - just the judge + experts if needed.
Juries are a way of preventing the "system" having all of the power. A jury of my peers is a different demographic to a well educated but entirely indoctrinated 50 year old judge. They don't see this every day, they won't have built up the same responses that a judge inevitably would.
The proverbial headmaster arbitrarily deciding my fate? That feels more terrifying than a jury of my peers, to me.
An angry and easily manipulable lynch mob arbitrarily deciding my fate? That feels more terrifying than some trained and experience arbitrator with respectable work history, to me.
But more seriously, the jury system also has serious flaws. I'd guess its bias towards existing norms. Bias against minorities in the jury pool. And its hard enough for us not accidentally trap into social media echo chambers. I doubt i'd notice attempts to personally manipulate me by a well funded defense (even without FB-like info about me). At the same time, a public defender wont have the resources to even try.
Guess "no free lunch" applies to legal systems as well. So far we haven't found an optimal system, at least.
> An angry and easily manipulable lynch mob arbitrarily deciding my fate? That feels more terrifying than some trained and experience arbitrator with respectable work history, to me.
You mean a bunch of random people who have no vested interest in the trial's outcome, and so can't be gamed or stacked for or against you in a premeditated fashion, vs. someone in a clear, long-term position of power that makes for an easy target of bribery, blackmail, or corrupt nepotism? You would seriously prefer that?
Centralization of power should generally not be preferred.
> who have no vested interest[..], and so can't be gamed or stacked for or against you
But that is not true. An attorney will try that, while someone on a jury might not even be aware his believe in a nuclear family is used to paint the victim as a slut. Being aware of your own biases and noticing others trying to abuse them will require education and training. Random citizens won't have the time for that. A professional judge (should) take that time.
Do you take you medical advice from random citizens as well, since it is harder for the pharmacy industry to influence them? I'd want to avoid corruption. Transparency helps, but comes with its own issues... if at all possible. I do want a system that avoids centralized power as much as possible but still lets trained experts do the job. There's got to be a better balance.
It depends where you live. I've sat on a jury in a wealthy urban area in the UK, and I'm happy to say my fellow jurors had excellent critical thinking skills. Each of us had different expertise which we could contribute.
The system worked exactly as intended. Because jurors are paid almost no money to be there, I had a strong feeling that I didn't want to live with the guilt of sending a person to prison unless they were completely guilty and completely deserving of it.
While a judge will usually act fairly, a jury has a selfish incentive to actively look for ways to avoid sending someone to prison.
I don't think juries are a good solution everywhere. The UK does not have the remnants of racial segregation that the US does; racialism is endemic in US thought patterns. Additionally, the average person where I live is university educated. For that reason, I feel that every defendant should be given the option of a bench trial.
> An attorney will try that, while someone on a jury might not even be aware his believe in a nuclear family is used to paint the victim as a slut. Being aware of your own biases and noticing others trying to abuse them will require education and training.
So? That's what the jury selection process is for. Your defense should exclude jurors with such obvious biases.
> Do you take you medical advice from random citizens as well, since it is harder for the pharmacy industry to influence them?
Except I'm not beholden to only a single doctor. You are beholden to a single judge, and you don't get a say which judge tries you.
I guess as a programmer it makes far far far more sense to me that the person deciding my fate is a professional who has to follow a rule book, rather than a bunch of random people who act on their own emotions and who don't have to know anything about the law. If the prosecution presents them with an emotional argument that makes them feel I am guilty, they will vote that way - and I'd hope the judge can't be swayed that easily.
That's a hilariously naive view of judges. Judges totally have emotional and political motivations, and a huge amount of discretion. It's less "following a rule book" and more "trying to squeeze this scenario to fit the box I think it belongs in". If you think adjudication is anything like running a computer program you're dead wrong.
One of my favorite lines about judges is: "it's the responsibility of every person to know the law, except trial judges, who simply have to consider the arguments presented and have appellate courts to set them straight"
You realize that some judges are elected by the general public right? If they won their election on a hang 'em high, and let god sort 'em out kind of platform then guess what they're gonna do? Hang 'em high. Because if they don't they'll loose their job next election. They can literally loose their job for caring too much about whether the accused is actually guilty. This is one of the reasons why we have a problem with over aggressive prosecutors and police, because they, and/or their bosses, are basically politicians who often have much stronger incentives to appear tough than to be fair or effective. If you want to think of it in programming terms, imagine working at a place that does performance reviews and promotions based on LOC generated. That is the judicial system in some states.
> You mean a bunch of random people who have no vested interest in the trial's outcome, and so can't be gamed or stacked for or against you in a premeditated fashion
This is not how juries are formed. The parties can refuse jurors and you can refuse yourself if you are chosen.
In the UK system juries are selected randomly, and there is essentially no selection*
Nothing like the American system, where the lawyers can go through 250 candidates to choose 12 jurors, letting them choose the race, gender, education and class composition of the jury.
*Challenges are possible, such as if the random selection procedure wasn't followed properly or if a juror knows people involved, but it's very unusual.
Each side -- depending on the state and level of court -- gets a certain number of premptory challenges; that is, they can exclude N jurors without giving a reason.
After that, the only way to exclude a juror is to prove to the Judge that the juror is biased.
There's loads of scenarios like that. All white jury against a black defendant comes to mind(or all black against white or any other combination you can think of). There's also plenty of research showing that juries are more likely to be sympathetic if you are attractive or someone they can identify with, with unattractive people/people from other social classes getting worse verdicts for the same crime.
That's not to say that judges do not exhibit such biases, but once again - they should be trained specifically against that. There is no such training or expectation on the juries. And yes, of course juries are asked "do you have any bias against this person" but I don't believe for a second that actually works.
Nothing you've listed is premeditated. Jury candidate selection is random, so premeditation is literally impossible unless the candidate selection process itself is compromised.
Certainly you can introduce bias in the jury vetting process, but that's what your defense attorney is for.
randomly selected how? By the order a $9 an hour secretary enters stuff into an excel spreadsheet? In some places yes. Even if it is random(normal case)...random selection of which old rich jaded PHD holding white guy you get? In many places yes.
What makes you think a jury is by definition "angry and easily manipulable"? This says a lot more about your view of humanity and yourself than it does jury trials.
Yes, i do believe individual humans are way less perfect agents than some free will devotees make them out to be. Making good decisions is expensive... requires both time and prior knowledge/influences. Something someone forced to do jury duty is unlikely to bring. They spend their resources to be experts in other fields.
Btw, if you wanted to go into the free will vs formed by society thing: The reason parents tell their children to "work hard" and "be responsible for them self" is this being an effective influence. Such is necessary by society to provide for people to become better individuals. I know it sounds contradictory at first.
But your argument is also applicable to judges. There's nothing in legal training that makes people magically superior to "normies", incapable of error and so on.
Meanwhile someone forced to do jury duty is gonna spend the time there whether they like it or not, so there's also no motivation to _not_ try to make good decisions. It won't save any time.
> That feels more terrifying than some trained and experience arbitrator with respectable work history, to me.
Except when the arbitrator has a grudge against you (maybe personally, maybe more generically - racially, ethnically, etc., maybe he just read a hit piece in the newsletter and is prejudiced against cases like yours). You can have a chance to sway the mob, but you have no chance against the professional who is out to get you.
To understand American system one has to understand that a lot of things there are designed not to produce best outcome in optimal cases, but to reduce harm in sub-optimal cases. It is meant not to solve cases with maximum ease, but to reduce the incidence of abuse. Of course, since people with power - aka the police, prosecutors judiciary, etc. - are not very interested in reducing their own powers they are actively working to undermine this design. Thus plea bargains, testilying, qualified immunity, blue wall of silence, etc.
> more terrifying than some trained and experience arbitrator with respectable work history, to me.
Roy Moore was a judge. Think of that.
Ousted from the bench, twice, for defying court orders, ignoring the law, and displaying a lack of impartiality. This guys thinking was basically "I don't have to follow the rules, because God tells me what's right." And he was a judge for a number of years.
Now look at this video of a recent trump judicial nominee.
He couldn't even answer basic legal questions, and admits to have never tried a case in court. I believe he dropped out of the process. But others have gone on to be judges, with only slightly better credentials.
So having a judge decide is no guarantee of a fair outcome. Juries exist for a reason. They aren't perfect, and nothing ever will be.
Yeah, the US judge selection process seems especially bad. Here in germany the issue of partisan judges comes up rarely, at least. I wonder why. Maybe that has to do with the highly partisan US politics, thanks to the US FPTP voting system practically allowing only 2 opposing parties. Hell, don't you even elect some judges in the same way?!
Also seems like we have a somewhat high bar that should filter the worst people... you need a 4 year legal education and after that have an up to 5 year trial period til you got a life long position.
Jury selection does absolutely everything possible to weed out jurors who wouldn't be impartial. Also the jury doesn't decide the punishment, the jury only determines if the prosecution has proved their case beyond a reasonable doubt.
On the other hand, it's horrific to me that my fate can be decided by people who have no formal education in law and can be swayed toward a guilty verdict by the prosecutors even in the absence of evidence - if they "feel" someone is guilty then they vote that way. That is insane to me personally. Yes, a judge might have a bias - but their decisions have to be based in the law and either you broke a law or you haven't - they can't go "well, there is no evidence, but I feel like you're guilty, so off to prison with you!" - a jury of peers can absolutely do that(the judge can overrule them for gross negligence of their duties but that doesn't happen very often).
AFAIK you can waive your right to a jury trial and simply appear before a judge in most jurisdictions.
In general through, judges have a strong bias towards the prosecution. DAs and judges are often extremely friendly since they work with each other every day. I would say that if you're innocent or your case has any extenuating circumstances, you almost always have a better shot with a jury than a judge.
Juries also allow for jury nullification, which allows for unjust laws to be ignored.
I dearly wish that jury trials were available in all cases. I recently went through a non-criminal case where justice was decidedly not served. The judge, of course, claimed he "had to follow the law" but his interpretation of the law contradicted the plain-text reading of the relevant statute. I had no choice but to suck it up unless I wanted to drop the rest of my life savings on an appeal. I feel pretty confident a jury would have seen things very differently.
> a judge ... can't go "well, there is no evidence, but I feel like you're guilty, so off to prison with you!" - a jury of peers can absolutely do that
The defence can ask a judge to throw out a case on the grounds that there is no evidence on which a jury could reasonably convict.
>> On the other hand, it's horrific to me that my fate can be decided by people who have no formal education in law
I think you're assuming quite a bit on the education, knowledge, and experience of the law on the part of the judge. There is no guarantee that the judge you get knows anything about the law pertaining to your case.
>> but their decisions have to be based in the law and either you broke a law or you haven't
And yet, judges are reversed all the time on appeal based on the idea that the judge got the law wrong.
Plus I'm fairly certain the judge has a great deal more power in the courtroom than the jury. A judge can certainly put you in jail for a period of time just because they feel like it.
Good comment, but confused about the "first of all" lead in. I felt like I already acknowledged this was a US unique problem, and specifically called out the UK system as superior.
I've started to think that prosecutorial discretion is one of the main problems in Western societies. It yields all kinds of injustices, and overly vague and expansive laws that essentially result in every citizen breaking a few laws a day.
If prosecutors didn't have a choice on whether to prosecute a case, the law would ultimately be a lot more reasonable because old and unjust laws would more readily be stricken from the books, and there would be no possibility of favouritism.
>overly vague and expansive laws that essentially result in every citizen breaking a few laws a day.
I've had the idea that the current system we have, which is basically you're not breaking the law unless someone is watching, isn't going to play nice with constant surveillance.
Currently, if a law isn't enforced, it's de-facto not the law.
Just imagine if computers in people's cars were phoning home to police. How many speeding fines would be issued daily? Failure to (completely) stop at a stop sign? Reckless driving? Look at how China is currently testing the waters with shaming j-walkers[0]. Just wait until this is fully institutionalized.
This debate is already well underway in the context of speed cameras, which can automatically issue a ticket to every single driver who is even 1mph over the speed limit. Many communities are limiting their use, for example by restricting their placement to only streets immediately outside schools.
>I've started to think that prosecutorial discretion is one of the main problems in Western societies. It yields all kinds of injustices, and overly vague and expansive laws that essentially result in every citizen breaking a few laws a day.
>If prosecutors didn't have a choice on whether to prosecute a case, the law would ultimately be a lot more reasonable because old and unjust laws would more readily be stricken from the books, and there would be no possibility of favouritism.
It is not "Western societies", in some Roman/Civil Law countries, as an example Italy, prosecution is not discretional, it is "mandatory" for crimes (whether this is effectively enforced in the same way and everywhere is another thing).
At one point in Anglo-American legal history it was possible to bring a private prosecution. Although on the balance it is probably for the best that doesn’t exist anymore in general, perhaps it out to be revived for cases of public misconduct where the public prosecutors have a conflict of interest.
>I really think false testimony should carry the punishment the accused is facing.
One problem with that is that e.g. someone who testified that they show OJ killing the woman would have gotten the "punishment the accused is facing" when OJ was found innocent.
So this has the potential to put an innocent man (testifying correctly, but where the accused for BS reasons is free of charges) to jail just as a false testimony now has the potential to do so.
OJ was not found innocent. Our criminal justice system largely does not find people innocent. It merely finds people "not guilty".
I realize that distinction may seem pedantic, but I think it's actually quite relevant in this case.
It's not sufficient that someone testified about what they saw, and have the case decided the other way. To start a perjury case against the witness, I would still demand all of the strictures of due process that apply to a criminal defense case.
That is, you would need to prove beyond a reasonable doubt that the witness was _lying_ about what they saw. It would absolutely _not_ be sufficient evidence just to have a "not guilty" ruling. You would need to prove that they _could not have seen_ the testimony they provided.
Absolutely, this standard would make _some_ prosecutions against police for perjury hard or impossible. However, there are a number of cases that I believe could meet this evidentiary standard that are simply not pursued by the prosecutors office.
> You would need to prove that they _could not have seen_ the testimony they provided.
A problem with this is that people giving false eyewitness testimony often believe they genuinely did see the thing they could not have seen and are telling the truth. So, a system like this would have the potential to punish as "liars" people who simply fell victim to what seem to be built-in foibles of the human memory system.
(Note I'm not doubting that some witnesses really are consciously lying. The problem would be the potential to sweep up the innocent with the guilty, if the standard used is "what they said they saw is impossible, therefore they are lying." Additional factors showing they were consciously lying would be needed.)
We already have sorted through this problem as a society.
The standard for perjury is not "their testimony was inaccurate, or was false". The standard for perjury is "they _knowingly_ made false testimony".
My complaint is not about changing the standard for perjury. My complaint is that prosecutors often avoid a perjury charge towards police, even when there is the evidence to support a perjury charge.
The burden for finding someone not guilty is that there exists some kind of doubt as to their guilt.
In order for anyone to be found guilty of giving false testimony the burden would be likewise. It would require that it be shown without a doubt that they lied.
>It would require that it be shown without a doubt that they lied.
Well, if the accused is considered non guilty of what they said they saw them do, then doesn't that "prove" that they lied? (as much "without a doubt" as the other person is innocent).
It would prove that there was insufficient cause to find the other party guilty. Proof that the party had lied could include. The officer admitting including to others in public or private that he had lied or that the facts were different in a substantive way from what he had previously testified.
Video that contradicts officers testimony.
Physical evidence that proves the testimony was a lie.
All of the above would have to be sufficiently different from reality that would suggest that its impossible to consider the possibility that the officer misremembered.
Example fake scenario:
I heard violent screaming coming from inside the home so I had to break down the door and search for the person in need of help and I just happened to find drugs.
Contradicted by video from the ring door bell which recorded the officer just walking up and kicking the door down so he could conduct an illegal search.
For real examples see the article. None of the listed scenarios suggest any reasonable party could think that the police officer misremembered.
Yes I believe OJ was guilty but I also believe that most of America didn't know what the L.A. jury inherently knew - that the cops were corrupt and that they had reason to believe that they were lying.
Mark Furhman was definitely a liar and just a few months later the Rampart scandal happened.
> I really think false testimony should carry the punishment the accused is facing.
Theoretically a sound idea, but people misremember things. It is possible to give false testimony without actively lying, and difficult to prove conclusively whether someone is actively deceiving or misremembering.
This is why body cams should be mandatory, also for the police officer's benefits - videos can't "misremember". Also police officers should be held to higher standards than the general population when it comes to giving testimony.
100% true. It's why Canadian judges generally don't convict on testimony unless there were dozens of witnesses and little chance of mistaken identity (the person stayed at the scene the entire time, etc).
That is the biblical adage of "an eye for an eye and a tooth for a tooth". If you look very closely into the background of this, one of the express conditions for this applying is that you lied to get someone else punished. You then faced the exact same punishment.
So for law enforcement, any lies or withholding of evidence to ensure conviction would automatically mean that the penalty being asked for is applied to all of those law enforcement and prosecutors involved. There would be no "free passes" given to law enforcement or prosecutors.
This, of course, will not happen any time soon in most jurisdictions.
I also think prosecutors are absolutely negligent when it comes to the police and others they need a relationship with for their other day to day activities.
I've kind of come to the conclusion that we need a _separate_ prosecutor's office for police matters.