This lecture considers the role that juries play in the adversary system. It pays particular attention to the idea of why juries are used. There is also continuing coverage (from last time) of the role that "truth" plays in the system.
Today’s Lecture: The Adversary System Session Topic(s) 4 4 Lecture Organization: Class Announcements Review Maximizing Truth Ben Roethlisberger The Role of the Jury Layperson Justice Notice to DocStoc Users: These slides are from a lecture given by Dr. Sean Wilson, Esq., at Wright State University. To learn more and/or to view the lecture, click the following: Plays a flash movie of the lecture segment for the slides in question Takes you to a course webpage, where you can access more information (get a syllabus, etc.) Learn more about the crazy professor. Takes you to a Table of Contents 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 Questions? -- When you talk, say your first name Review “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 Time Review “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 false -- defense attorneys never look at TRUTH, they look at PROOF -- 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: 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. illustration Separation of powers / checks and The King balances WITHIN the judiciary itself. Leg Jud (absolute monarchy) Exec Juries Judge Lawyers Question: 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 courts? 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 Time … 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 Time Ben Roethlisberger Question: What are some The Facts theories about what might have happened? -- 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? Time # 95 Class Discussion Potential Answers Problems with the answers Peers are not To have our “peers” allowed to judge us judge us? --stricken To have the “community” judge Sample Size us? Are all the judges To eliminate bias? biased? What if we found a fair one? Time Class Discussion Question: Why not let the judge, who is a trained professional, decide who wins the case? Question: 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? Example1: Question: Only former Would this be an jurists are improvement? allowed Class Discussion What about having a professional jury? Example2: Criminologists Only Police officers qualified professionals Defense lawyers Question: Crime lab specialists Would this be an improvement? Former judges Class Discussion What about having a professional jury? Example3: Just Question: intelligent Would this be an people improvement? Highest SAT scores, etc Time # 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 property “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 wrong? -- only if Edith says you are guilty should punishment be allowed -- the ritual of layperson approval is the last hurdle in the system. “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 money?] “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 Time illustration Question: What does the judge Jud Leg Exec Edith Judge have power over? Lawyers “Law” Proof & Result Theories
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