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Old 21st May 2020, 02:39 PM   #41
Thor 2
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Originally Posted by theprestige View Post
I don't think either one is best in all situations. I think what is best is to have a system that makes use of both.

I think your question is like asking what's better, a doctor or a dentist? A destroyer or an aircraft carrier? A coupe or a ute? Carbs or proteins? My answer in all these cases is, "it depends, and a good system will make use of both."

And also, "why do you want to restrict it to one or the other? Why not have both?"

The stupidity is getting painful to read.

The discussion is about whether trial by jury is a good system. So you want to have a menu to chose from and somehow you think this clarifies something?
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Old 21st May 2020, 02:43 PM   #42
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Originally Posted by psionl0 View Post
Why is the option of trial by judge alone "silly"? Because that option doesn't exist in Victoria?

Many a time, bad publicity about a case makes it almost impossible for an impartial jury to be selected. That's why in WA, the prosecution or the defence can request a trial by judge alone.

Oh boy! Did I say that? It would be nice if you read my post and the one I was responding to before you wade in.

Brisbane is in Queensland by the way - not Victoria. I know you West Australians tend to be somewhat insular but surely you learn some geography over there?
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Old 21st May 2020, 02:56 PM   #43
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Originally Posted by wasapi View Post
Sorry, I don't know why a legitimate question is, in your words, "silly"?

Because it did not address the question.

If I was to ask you "Do you think BASE jumping is more dangerous than playing lawn bowls." and you answer "I like both." Do you think you have answered the question?
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Old 21st May 2020, 03:09 PM   #44
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Originally Posted by Thor 2 View Post
The stupidity is getting painful to read.

The discussion is about whether trial by jury is a good system. So you want to have a menu to chose from and somehow you think this clarifies something? : confused :
I think trial by jury is a good system, but not complete by itself.
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Old 21st May 2020, 03:25 PM   #45
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Originally Posted by The Atheist View Post
Seems to work pretty well in NZ, where a lot of cases are trial by judge alone.

Also, on the idea of professional jurors, does anyone else see the irony that when jurors get it wrong and a case goes to appeal, it's decided by judges alone?

Yes a good point well illustrated by the trail of Pell, conviction, and then conviction overturned by judges.
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Old 21st May 2020, 03:41 PM   #46
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Originally Posted by Thor 2 View Post
Yes a good point well illustrated by the trail of Pell, conviction, and then conviction overturned by judges.
Overturned on what grounds, though?
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Old 21st May 2020, 03:43 PM   #47
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Originally Posted by Thor 2 View Post
Because it did not address the question.

If I was to ask you "Do you think BASE jumping is more dangerous than playing lawn bowls." and you answer "I like both." Do you think you have answered the question?
'It depends on the circumstances' might be a reasonable answer.
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Old 21st May 2020, 04:17 PM   #48
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Originally Posted by Elaedith View Post
'It depends on the circumstances' might be a reasonable answer.
A properly planned and rigged BASE jump is probably safer than playing lawn bowls during a lightning storm, for example.

Anyway, I think the option to have a panel of fellow citizens hear the case and decide your fate, rather than a judge, is an important part of a free society, even if it's not always the best choice, and isn't guaranteed to return a good verdict in every case. You're always welcome to plea out, or just have a judge decide, if you prefer.

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Old 21st May 2020, 04:42 PM   #49
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Originally Posted by Elaedith View Post
'It depends on the circumstances' might be a reasonable answer.

Yes indeed I would take that as a reasonable answer but "I like both" would not be.
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Old 21st May 2020, 04:52 PM   #50
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Originally Posted by theprestige View Post

Anyway, I think the option to have a panel of fellow citizens hear the case and decide your fate, rather than a judge, is an important part of a free society, even if it's not always the best choice, and isn't guaranteed to return a good verdict in every case. You're always welcome to plea out, or just have a judge decide, if you prefer.

Good. Now you are addressing the question.

That's what we are talking about: Is a jury more likely to return a good (or correct) verdict than a judge. It may make you feel warm and fuzzy as a member of a "free society", but is that a good enough reason to retain the system?
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Old 21st May 2020, 05:21 PM   #51
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We have both trial by jury and trial by judge alone, but the plaintiff doesn't get to choose which is used. The law does. Certain kinds of trial occur before a judge, certain kinds before a jury. I believe that if it is unclear what kind of trial is to be used for a particular case, it is decided by a judge.

Of course I don't have a great deal of knowledge beyond my own experience as a juror, so I might be totally wrong about this.
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Old 21st May 2020, 05:53 PM   #52
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I have testified as an expert in arbitration, in jury trials, and in bench trials. There are times when arbitration is the best choice, there are times when jury trials are best, there are times that a bench trial would be my choice. A lot depends upon how arcane the issues are, the facts of the case, and the law.
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Old 21st May 2020, 06:15 PM   #53
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Originally Posted by Thor 2 View Post
Good. Now you are addressing the question.

That's what we are talking about: Is a jury more likely to return a good (or correct) verdict than a judge. It may make you feel warm and fuzzy as a member of a "free society", but is that a good enough reason to retain the system?
If enough members of the society agree, yes.
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Old 21st May 2020, 07:40 PM   #54
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Why does it have to be "trial by judge" instead of "trial by judges"? In Sweden multiple judges sit in every trial (which includes lay judges, who are just glorified laymen in place of juries, except for in the highest court).

I'd rather trust a panel of judges to come to a reasonable conclusion than just one.
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Old 21st May 2020, 07:43 PM   #55
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Why not have a panel of six or twelve lay judges, plus a professional jurist to oversee the legal process itself?
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Old 21st May 2020, 08:40 PM   #56
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Originally Posted by theprestige View Post
Why not have a panel of six or twelve lay judges, plus a professional jurist to oversee the legal process itself?
If those lay judges met qualifications for understanding law and it's application and interpretation, great.

6 or 12 knuckleheads pulled semi-randomly off the street to be arbiters of one's fate seems about as bad a system as you could get without a raffle involved.
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Old 21st May 2020, 09:59 PM   #57
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Originally Posted by Arcade22 View Post
Why does it have to be "trial by judge" instead of "trial by judges"? In Sweden multiple judges sit in every trial (which includes lay judges, who are just glorified laymen in place of juries, except for in the highest court).

I'd rather trust a panel of judges to come to a reasonable conclusion than just one.

No argument with that.

I tend to have a prejudice in favour of things done in Sweden because I come from there myself. Things done there seem to have an underlying theme of common sense generally.
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Old 22nd May 2020, 01:44 AM   #58
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Originally Posted by Thor 2 View Post
The discussion is about whether trial by jury is a good system. So you want to have a menu to chose from and somehow you think this clarifies something?
It has already been established that trial by jury is not always the best system but I don't understand what your point is.

Do you want to eliminate trial by jury or do you think that we are discussing trial by judge and jury simultaneously?
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Old 22nd May 2020, 04:38 AM   #59
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Originally Posted by arthwollipot View Post
Remember that the American jury system includes voir dire, during which the lawyers can cross-examine potential jurors for reasons to reject them. Here in Australia, your name is called, you stand up, they take a look at you, and either of the lawyers can reject you. And if they don't, you join the jury. And that's it. No questions, no cross examination. Just stand up, yes or no.

There are advantages and disadvantages to this system. The advantage is that you do get a genuine cross section of society. The disadvantage is that you do get a genuine cross section of society.
I think the whole issue of voir dire and whether it decreases or increases the risk of juror bias is interesting. With voir dire not being used in the UK either, students I have taught are often shocked to hear about extended version sometimes used in the US. In particular, the way that it leads to 'scientific jury selection' and the use of litigation consultants. In Australia and the UK, the assumption seems to be that a interference with jury selection should be minimal and the jury is meant to represent the general population as much as possible in attitudes and other characteristics.

I have mixed feelings about it. I used to be very much against the US extended voir dire approach because it seems to encourage strategic manipulation of juror characteristics. However, I have seem some research suggesting it can reduce juror bias. I have also seen it suggested that the process itself encourages jurors to take the issue of impartiality more seriously. Unfortunately it's a difficult issue to test due to the inherent methodological limitations of mock juror research.
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Old 22nd May 2020, 02:14 PM   #60
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Originally Posted by theprestige View Post
Why not have a panel of six or twelve lay judges, plus a professional jurist to oversee the legal process itself?
IIRC from the thread which we do not name, the Italian system has six lay judges and two professional judges. The main disadvantage that I envision here is that the two professional judges are likely to dominate the deliberations. That doesn't necessarily make it worse than any other system.
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Old 22nd May 2020, 02:34 PM   #61
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Originally Posted by Thermal View Post
If those lay judges met qualifications for understanding law and it's application and interpretation, great.
My default position is that if twelve citizens off the street can't figure out what the law means and how to interpret it, that's a problem with the law, not with the citizens.

Ideally, criminal law should be immediately scrutable to all citizens.

If a lawyer and a judge agree that the law was broken, and twelve citizens who are subject to the law agree, "how the **** can we tell; not guilty", then I think the citizens are right and the legislature needs to figure stuff out.
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Old 22nd May 2020, 02:43 PM   #62
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Originally Posted by psionl0 View Post
It has already been established that trial by jury is not always the best system but I don't understand what your point is.

Do you want to eliminate trial by jury or do you think that we are discussing trial by judge and jury simultaneously?

Can't see why you see "the point" as elusive. Some others here don't.

The discussion is about trial by jury and what people think about its limitations. Discussion about alternative systems is also welcome.
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Old 22nd May 2020, 03:07 PM   #63
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Originally Posted by Thor 2 View Post
Can't see why you see "the point" as elusive. Some others here don't.

The discussion is about trial by jury and what people think about its limitations. Discussion about alternative systems is also welcome.
My favorite alternative system is a hybrid system: If you think the law is on your side and the judge will be sympathetic to your defense, you should have the option of a bench trial. If you'd rather put the question to a jury of your "peers", that option should also be guaranteed.

Not a limitation, but one of the important and unique features of a jury trial is jury nullification. It's rare, and not much talked about, and that's fine. But I definitely think that whatever system you have, it should include the possibility of something like jury nullification. For me, that by itself is reason enough to keep jury trials around, in spite of their limitations.
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Old 22nd May 2020, 05:18 PM   #64
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Originally Posted by Thor 2 View Post
Can't see why you see "the point" as elusive. Some others here don't.

The discussion is about trial by jury and what people think about its limitations. Discussion about alternative systems is also welcome.
So why did you go out of your way to demonstrate how silly theprestige's POST is?
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Old 22nd May 2020, 05:50 PM   #65
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Here's on thing juries should not be able to do. Declare something a scientific fact.

Glyphosate and talc do not cause cancer. A jury of lay people should not be able to decide that they do.
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Old 22nd May 2020, 05:56 PM   #66
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Probably because it didn't follow the intended pattern of "TBJ is bad because X, and Alternative System is better because Y."

Also because it didn't offer any criticism of TBJ that one could agree with, nor offer any defense of TBJ that one could argue with.

Hopefully the claim that TBJ allows for jury nullification will be seen as less silly and more engageable.
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Old 22nd May 2020, 06:01 PM   #67
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Originally Posted by JoeMorgue View Post
Here's on thing juries should not be able to do. Declare something a scientific fact.

Glyphosate and talc do not cause cancer. A jury of lay people should not be able to decide that they do.
There's probably a pretty large gray area between scientific fact, civil liability, and legal definition. I wonder what the actual case being argued was, and what the actual question put to the jury was.

Any chance you could point us to the definitive account of whatever it is you're talking about?
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Old 23rd May 2020, 01:13 PM   #68
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The Claremont murders trial was heard by judge alone. I noticed a statement in the news that the judge might take several months to reach a verdict due to the amount and complexity of evidence. That highlights a problem with using juries in lengthy trials. Jurors have to take time out from work and other aspects of their lives for the duration and by the end will probably be keen to get it over with and not spend further weeks deliberating. I imagine that one juror holding out against the majority who want to return to their normal lives could end up being subjected to pressure to conform.
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Old 23rd May 2020, 01:25 PM   #69
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Originally Posted by theprestige View Post
My favorite alternative system is a hybrid system: If you think the law is on your side and the judge will be sympathetic to your defense, you should have the option of a bench trial. If you'd rather put the question to a jury of your "peers", that option should also be guaranteed.

So you think we should have both because you may be able to work it to your advantage sometimes?
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Old 23rd May 2020, 01:27 PM   #70
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Originally Posted by psionl0 View Post
So why did you go out of your way to demonstrate how silly theprestige's POST is?

Given you don't seem to read the posts you are talking about I can't see how I can make this clearer.
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Old 23rd May 2020, 01:32 PM   #71
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Originally Posted by Elaedith View Post
The Claremont murders trial was heard by judge alone. I noticed a statement in the news that the judge might take several months to reach a verdict due to the amount and complexity of evidence. That highlights a problem with using juries in lengthy trials. Jurors have to take time out from work and other aspects of their lives for the duration and by the end will probably be keen to get it over with and not spend further weeks deliberating. I imagine that one juror holding out against the majority who want to return to their normal lives could end up being subjected to pressure to conform.

Well that is a good point yes. I wonder how often we get hung juries, because the jurors just want to get out of it, and won't spend the time going over the detail in a methodical way?
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Old 23rd May 2020, 02:19 PM   #72
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Originally Posted by Thor 2 View Post
So you think we should have both because you may be able to work it to your advantage sometimes?
Basically, yes. I think the criminal justice system should be oriented towards giving advantage to the accused. Principles like the presumption of innocence, the right to not self-incriminate, etc. All of these are so that when the citizen stands accused by the state, it is the citizen who has the advantage.

Note that this is not about my personal benefit. It's about how I think a good society should operate, for the benefit of all its citizens.
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Old 23rd May 2020, 02:30 PM   #73
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Originally Posted by Thor 2 View Post
Well that is a good point yes. I wonder how often we get hung juries, because the jurors just want to get out of it, and won't spend the time going over the detail in a methodical way?
In the US, a hung jury results in a mistrial, and may be retried. On the one hand, this is advantageous for the defendant, since the case may also *not* be retried. On that basis I'd argue that this is a feature , not a bug, of the system. Basically it means that if the state cannot clearly show a criminal act in plain terms, without trying the patience of a group of citizens, the defendant could be off the hook right then and there.

This goes back to what I was saying earlier, about how the law should be easily scrutable to the average citizen. If you have to put the jury through a six week seminar just to give them the context of why your accusation has merit and deserves to be heard, maybe that's a sign to rethink some of the complexity that has grown up around your criminal statutes.

On the other hand, it kinda sucks for the defendant. The prosecution took their best shot, rested their case, and couldn't convince the jury at that point. Giving them a do-over and prolonging the defendant's ordeal doesn't seem very just. At the very least, I think there should be a (very short) period of time after a mistrial, in which the state can petition for a retrial. After that period expires, the hung jury counts as an acquittal, and a retrial would be double jeopardy.
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Old 23rd May 2020, 06:17 PM   #74
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Originally Posted by Thor 2 View Post
Given you don't seem to read the posts you are talking about I can't see how I can make this clearer.
You initially claim that trial by jury or trial by judge is a silly system then you say that discussion about alternatives is welcome.

You can clarify this by saying "yes" or "no" to this question: Do you believe that we should have one and only one system and nobody should be given the choice of an alternative?
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Old Yesterday, 02:38 PM   #75
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Originally Posted by theprestige View Post
Basically, yes. I think the criminal justice system should be oriented towards giving advantage to the accused. Principles like the presumption of innocence, the right to not self-incriminate, etc. All of these are so that when the citizen stands accused by the state, it is the citizen who has the advantage.

Note that this is not about my personal benefit. It's about how I think a good society should operate, for the benefit of all its citizens.

Well I think the best system is the one that is most likely to reach a true verdict. You, on the other hand, think the best system is the one that allows the accused citizen to gain advantage. We are obviously not seeing this the same way .....yes?
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Old Yesterday, 02:42 PM   #76
Thor 2
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Originally Posted by psionl0 View Post
You initially claim that trial by jury or trial by judge is a silly system then you say that discussion about alternatives is welcome.

You can clarify this by saying "yes" or "no" to this question: Do you believe that we should have one and only one system and nobody should be given the choice of an alternative?

There you go again! You just make up stuff and accuse me of saying it. Try reading what I said and comment on that. I will be more receptive to this approach I promise.
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Old Yesterday, 04:50 PM   #77
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Originally Posted by Thor 2 View Post
There you go again! You just make up stuff and accuse me of saying it..
Frustrating, isn't it?
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Old Yesterday, 05:35 PM   #78
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Jury convicts an innocent man and the appeal court reflects on their prowess.

[243] We consider that inviting the jury to resolve the issues presented on both sides
of the mRNA issue in this case was to ask them to carry out a task for which they
cannot have been equipped. They were effectively required to resolve a complicated
scientific debate about whether the methodology employed was robust in the absence
of the general acceptance of the methodology envisaged by Daubert.
[244] We accept as Mr Morgan submitted that efforts were made to try to ease their
task, and the Judge in particular was most helpful in the approach he took in
the summing-up. In the end, however, we think it would be surprising if the jury
understood much of the evidence that was called on the subject.


https://forms.justice.govt.nz/search...96e506de20.pdf

The appeal court went on to dismiss the appeal using a thing called the proviso.

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Old Yesterday, 05:57 PM   #79
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Originally Posted by theprestige View Post
My default position is that if twelve citizens off the street can't figure out what the law means and how to interpret it, that's a problem with the law, not with the citizens.

Ideally, criminal law should be immediately scrutable to all citizens.

If a lawyer and a judge agree that the law was broken, and twelve citizens who are subject to the law agree, "how the **** can we tell; not guilty", then I think the citizens are right and the legislature needs to figure stuff out.
Agreed, law designed for the average citizen to comply with should not require an interpreter to grok.

But my point was more crude. You want your ass on the line and see Thermal scratching his nutsack in the row of jurors? I'd rather have a professional than the average dolts I find bumbling around.

If you were getting surgery, you want a dozen random people with no experience and a ten minute crash course to try their hand on you? Or might there be something to be said for professionals on matters of import?
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Old Yesterday, 06:23 PM   #80
theprestige
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Originally Posted by Thor 2 View Post
Well I think the best system is the one that is most likely to reach a true verdict. You, on the other hand, think the best system is the one that allows the accused citizen to gain advantage. We are obviously not seeing this the same way .....yes?
I'm not sure it's knowable, what system is more likely to reach a true verdict.

In any case, no system is perfect. You're not going to feed facts through a series of logic gates and get truth out the other side. Opinion, perception, and human judgement are going to be factors no matter what. And even when the facts are known and the guilt is clear, there is still scope for jury nullification, as I previously mentioned.

So my chief concern is for the rights of the citizen. My concern is that when the system fails, and a faulty verdict is reached, the failure tends to be in favor of the citizen, not the state. Thus I favor systems that give the citizen good opportunities to defend his innocence and go free if he can. That said, I also recognize the state's interest in not letting criminals go free.

So in the end I favor systems that seem to reasonably balance the state's interest in not letting criminals go free, with the citizen's interest in not being falsely imprisoned. Of the two errors, I think the second is much worse. Society suffers from criminals who go free on false verdicts, but I think it suffers much more from citizens who are falsely imprisoned by the state. So I think a system which gives the citizen the option of a jury or a judge to decide their case is a good system for safeguarding the citizen against the state, without unduly jeopardizing the state's interest (and the society's interest) in punishing crime.
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