The Adversary System: The Role of Juries and of Truth by Wittgenstein

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									          Today’s Lecture:

          The Adversary System

Session                          Topic(s)

  4                               4
Lecture Organization:

     Class Announcements

     Maximizing Truth

     Ben Roethlisberger

     The Role of the Jury

     Layperson Justice
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                    for the lecture                                         Time
                 Class Announcements                    Time

Class Participation
-- don’t forget to hand it in at the end of the class
 Pop Quiz
-- don’t forget about this
Paper Deadlines
-- April 30th – 2 hard targets.
Say First Name
-- When you talk, say your first name

“False Cases”
-- Attorney can try to prove a theory, even if he or she believes
it is “false,” within the rules of the adversary system

  Can’t do anything illegal

   -- e.g., fixing testimony (“you should testify to this … ”)
   -- knowing that the client is lying when he or she testifies

        strategic intake counseling

“False Cases”
-- Allowed to use cross examination and jury persuasion to
promote a theory even if he or she knows is false

  Affirmative Construction

   -- buying an expert to testify to truthful things that would
   help advance a theory, even if the theory is known to be
   -- defense attorneys never look at TRUTH, they look at
   -- If the proof is deficient, the person should “walk.” The
   system isn’t about “truth;” it’s about the psychology of proof
# 91

                          Maximizing Truth

       1. There are two types of structures I want to describe to you
        Integrated Authority Structure
          -- power is concentrated into relatively few participants
          -- no checks and balances
          -- someone is the judge, jury and executioner
          -- examples:                             These systems
              • mafia    How do they get at truth? maximize truth
              • parent or fiduciary Do children have privacy?
              • inquisitorial system                    Question:
                                                   But at what cost?
   Question:                                         Does the American
                          Maximizing Truth
  Is that true?                                      system really work
                                                         that way?
       2. Integrated authority structures have a danger to them
          -- more easy to corrupt (prosecute your enemies)
              (e.g, Russia?)
          -- they can “over judge”
          -- they can send some people away who are not guilty
          -- What is that wonderful piece of poetry used to describe
          the American adversary system?
              -- “It is better to let 10 people go free than to convict 1
              innocent person”
Time          -- my guess is that the true ratio is about 6 to 4
# 92                      Maximizing Truth

       3. Because of the dangers of an integrated authority structure,
       America set up a different kind of trial system
        Disintegrated Authority Structure
          -- separation of powers and checks and balances
          -- right to silence
          -- burdens of proof
          -- rights to counsel and juries
          -- adversarial contest that can say something about truth,
          but only within the context of basic liberty first.

Separation of powers / checks and
                    The King
balances WITHIN the judiciary itself.
               (absolute monarchy)

                         Is it really worth it? Is this an
                          antiquated idea from a day
     Separation of powers / that is now long passed?
                             checks and balances
                      Maximizing Truth

   4. Some things to consider                  Question:

       -- Power corrupts?                  Remember OJ
                                          wanted to have his
       -- Fred Zain in West Virginia
                                           own crime lab?
       -- California crime lab
       -- FBI files on Timothy McVeigh
       -- Story in your supplement about FBI misleading secret
       POINT: there are good and bad “everythings.” Good and
       bad lawyers, good and bad police officers, good and bad
       military soldiers, good and bad judges
       … no one is above misbehavior
# 93

                        Ben Roethlisberger

        The Charge
       -- Appears to be a “touching charge.” (Sexual Battery, not
       “rape” in the stereotypical sense)
          (other kinds of “touching charges” without sex being
          implicated: domestic violence, battery)
                  Ben Roethlisberger

  The Facts
                                Caution: Media Innuendo
-- He’s bar hopping
-- Buying Tequila for college girls
-- Apparently has some “issues”
   • degrading women who only want to give him attention to
   receive a picture or autograph, but want nothing else
                    Ben Roethlisberger
     What are some
      The Facts
   theories about what
       might have

   -- Apparently meets up with a coed who goes to several clubs
   with him
   -- She is apparently drunk (we assume he is too)
   -- They apparently enter a restroom-area of a private VIP room
   (together?). His body guards apparently block the entrance
   -- No physical evidence. She goes to the police quickly.
topic # 94

                  Part II:
             The Role of Juries
        Class Discussion

Why do we use juries?

# 95

                        Class Discussion

       Potential Answers          Problems with the answers

                                   Peers are not
       To have our “peers”
                                   allowed to judge us
       judge us?
       To have the
       “community” judge           Sample Size
                                  Are all the judges
       To eliminate bias?         biased? What if we
                                  found a fair one?
                 Class Discussion

 Why not let the judge, who is a
trained professional, decide who
         wins the case?

        Would there have been a better
        verdict in O.J.’s case if Judge Ito
        had decided innocence or guilt?
# 96
                        Class Discussion

                      What about having
                      a professional jury?

       Only former
                            Would this be an
        jurists are
                  Class Discussion

                What about having
                a professional jury?

 Example2:          Criminologists
    Only            Police officers
professionals       Defense lawyers
                    Crime lab
                    specialists        Would this be an
                    Former judges
                Class Discussion

              What about having
              a professional jury?

   Just                   Question:
                      Would this be an

Highest SAT
scores, etc
# 97
                         “Layperson Justice”

       1. Edith Bunker Story
       2. Juries are a layperson workgroup.
       3. Basic idea:
          -- lay the evidence out piece by piece in front of lay people
          -- give them a standard of comfort (“burden of proof”)
          -- and see who they agree with
          If you can’t convince them, you can’t take life, liberty or
                  “Layperson Justice”

4. Reason why we do this:
   (A). distrust government monopoly on the power to
   pronounce guilt with respect to its laws
   (If we distrust government to pass laws, it is no wonder we
   distrust government to declare who has broken them)
   (B). Legitimacy:
   -- if Edith will not convict you, there must be something
   -- only if Edith says you are guilty should punishment be
   -- the ritual of layperson approval is the last hurdle in the
               “Layperson Justice”

(C) Judge’s Institutional Socialization
-- problem of repetition in judging       Mention anecdote
-- problem of being an insider
-- studies of jury outcomes
   -- juries protect slightly more often in criminal cases
   -- note that no juries are used in England for civil cases
   (issues said to be “too complex”) [they award too much
                   “Layperson Justice”

5. Workgroup phenomenon
   -- dynamic of lay people hearing evidence and solving a
   puzzle as a workgroup
   -- lay people perform better as a workgroup than in isolation
6. Radical alteration of political power
   -- the power to declare who wins a prosecution is taken
   away from the police state
   -- It is replaced with an adversarial contest


What does the judge Jud
 have power over? Lawyers


Proof &                              Result

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