Should we have professional jurors?
February 14th, 2012 at 9:22 am by David FarrarClaire Trevett at NZ Herald reports:
The Law Commission has proposed ditching trials by a full jury of 12 in favour of trials by a judge and two semi-professional jurors to allow more evidence, such as previous convictions, to be used.
In a consultation paper on alternative trial systems, the commission sets out a range of proposals for change, especially in sexual offending cases.
They include replacing a full jury with a judge alone or a judge with two full-time jurors who would be trained in criminal procedure.
The paper said trials heard by either a judge alone or a judge with two trained jurors would allow many of the rules of evidence to be dispensed with, because a smaller pool of fixed-term jurors could be trained in criminal trial procedures in a way normal jurors could not.
Research showed jurors had “an array of myths and prejudices” that resulted in laws restricting the use of evidence which could be prejudicial, but professional jurors could be taught to put their own prejudices aside.
An example of the evidence that could be included under such a system was previous convictions of defendants. In August 2007, a law change allowed previous convictions to be used in some cases, but only when the strength of the evidence outweighed any risk of prejudice.
I think previous convictions should be known (partly because in today’s world, such information is difficult to hide, so better to provide it in context).
The idea of semi-professional jurors is worth considering. With so many people avoiding jury service, jurors are no longer representative of the population anyway. Training jurors up in criminal trial procedures has some merit.
I’ve not read the full paper, but will add it to my backlog of stuff to read.
You can read the paper and respond to it at this site.
February 14th, 2012 at 9:27 am
No way. If you are stupid enough to do crime you deserved to be trialed by a jury of your most retarted, incompetent badly educated peers.
Vote:February 14th, 2012 at 9:33 am
I’d support past convictions being known.
Past convictions indicate the character of a person – if joe bloggs is up on a shop lifting charge and has 100 previous shop lifting offences, odds are, they’ve shoplifted again.
This puts the onus on offenders to avoid situations where they may be implicated in a crime, knowing the chances of a conviction are higher.
Vote:February 14th, 2012 at 9:35 am
NO!
While there may be a case for technical-type cases such as the upcoming (if it ever happens) SCF trial to be heard by experts the trial in front of one’s peers must remain the basis of the NZ justice system if only to remove any hint of corruption within the justice system.
Vote:February 14th, 2012 at 9:44 am
“No way. If you are stupid enough to do crime you deserved to be trialed by a jury of your most retarted, incompetent badly educated peers.”
That actually works in your favour if you have slaughtered your family but subsequently manipulated half the Country via a gushing media who desperately champion you as ‘innocent’…
Vote:February 14th, 2012 at 9:44 am
Short answer – NO!!!!!!
Longer answer professional jurors would be public servants and as such part of the establishment who would soon realize which side of the bread was buttered.
Vote:February 14th, 2012 at 9:44 am
There are certainly flaws in the current system. I recently sat on a jury and when we looked only at the evidence put before us, we could not find the accused person guilty largely because we could easily construct a feasible alternative scenario that explained the evidence – there was thus sufficient doubt especially when you must consider the person innocent before considering the evidence.
Vote:Talking with the detective in charge of the case later, there were factors which would have ruled out the alternative scenario but these were not raised by the prosecutor so we could not hear about them. Funnily enough, we actually asked the questions of each other in the jury room that the prosecutor should have asked witnesses and the answers would have produced a different outcome. It wasn’t clever defence, just bad prosecution.
Trained jurors may be able to clarify evidence – the desired outcome being to get as close to “the truth” as possible which is something our system of protecting the jury from relevant factors such as prior records prevents.
February 14th, 2012 at 9:50 am
What MT_Tinman says…in spades. Although it would be tempting in cases of accounting fraud, for example, where the sheer volume of technical evidence could overwhelm a layman the present system ensures that justice is as transparent as it can be.
If we allow our courts to be totally controlled by legal experts within a very short time the processes & decisions will become so complex that the public & participants will be left completely out of the loop.
Vote:February 14th, 2012 at 9:58 am
Absolutely, NO!
This Law Commission is the same idiotic mob that wants to place a minimum price on a bottle of wine to mollify the “concerns” of the hospitality sector (Bars, cafes, Restaurants etc,. which are feeling the heat as a consequence of life-style changes and supermarket coimpetition) AND the outlandish claims of zealot-like academics, spawned by Davies/CLARK/Davis…or whatdever.
Ergo, NO changes whatsoever.
Please do not waffle-on ABOUT THE COST OF LEGAL AID. When the State cannot call upon ALL the resources of he State, the playing field will be level.
Until then, leave it be!
Vote:February 14th, 2012 at 9:59 am
Maybe add a judge or professional juror to the existing 12 peers. If a different kind of jury is introduced, I think that nobody should have to undergo it unless they elect to. The option to be tried by your peers is an important check on government power.
Vote:February 14th, 2012 at 10:02 am
The current jury system has become something of a farce whereby the most compelling evidence is often with held on the often spurious grounds that it will influence the jury unduly. Simple cases which once could be disposed of in a few days now take weeks and complex cases months, costs are enormous. The proposal may be flawed but surely not as much as the present illusion. Its the first time I’ve known the law commission to come up with a practical proposal, maybe PALMER has finally departed.
Vote:February 14th, 2012 at 10:04 am
This is something I have advocated for a long time. Where do I sign up?
Vote:February 14th, 2012 at 10:18 am
NO WAY!!!
The jury holds its valid place in all free and impartial justice systems, and avoids absolute power by distributing it among common citizens.
Surrender our power to the institution? as if they don’t have more than enough already…
Vote:February 14th, 2012 at 10:27 am
I’ve always thought that if I was guilty of a crime I’d rather be judged by a jury, and if I was not guilty I’d prefer a judge or judges, since (in my mind at least) juries can be swayed a lot easier by emotional arguments than what judges can.
I think it is a good idea to allow the judge to examine the witnesses as well as the barristers, since an incompetent (or really good) lawyer on one side might bias the trial. The idea of a trial shouldn’t be to decide guilt based on how good your lawyer is or how much money you have, but on establishing the truth, and if you’re poor and have legal aid and can only afford a graduate to defend you, the judge should be able to help the truth come out.
Vote:February 14th, 2012 at 10:38 am
Shortage of jurors? That maybe because many live in small centres and are not called. And a lot of us are retired – but which defendant would want a panel of beady-eyed oldies hearing their defence? And of course it would be expensive -
If we say it takes village to raise the child, then I say, use the villagers –
And it’s about time past criminal convictions were acknowledged so the jury can decide on the likelihood of guilt or otherwise. My son was bottled by a drunken stranger some years ago and required emergency treatment. After the hearing (district court, no conviction, apparently my son looked at his attacker the wrong way, making the attacker feel that his safety was threatened) we discovered that the attacker was already waiting for trial in the supreme court on another assault charge.
I was called for jury duty 30 years ago – 2 mates in a pub came to blows, were separated, one shouting I’ll bloody well kill you, was arrested and duly summons-ed to court. Unfortunately he didn’t turn up so we all went off to morning tea -
Vote:February 14th, 2012 at 10:39 am
If there was a fairer way of selecting jurors I would say hell no to this.
But seeing as most juries are largely made up of those too stupid to avoid jury service then I have no issue with a modification.
Maybe a mixed jury where there are 2 professionals and 5 members of the public and each professional gets 2 votes and the jury needs 6 of 9 possible votes to convict. This would reduce the bias of sensational evidence but someone bribing the professionals could not buy a result.
Something needs to happen if NZ is not going to descend into madness (well further than it has)
Vote:February 14th, 2012 at 10:42 am
I think previous convictions should be known. Back when this form of criminal procedure was invented, most people lived in smaller villiages and knew the other people in the villiage anyway.
If it was OK then, why not now?
Vote:February 14th, 2012 at 10:46 am
@MikeMan
Too stupid? I guess from that sattement that any time you are summoned for service, you do all you can to “get out of it”.
I chose to not avoid jury service two weeks ago. Those that choose to do jury service aren’t stupid, they are fully participating in what is required to have a decent society.
You, on the other hand, are a selfish git who wouldn’t help an old lady who had falled in the street in case you got your hands dirty. You disgust me.
Vote:February 14th, 2012 at 10:49 am
Why not just stop people from getting out of jury duty?
Vote:February 14th, 2012 at 10:54 am
Imagine having a class of professional jurors. Shudder.
A culture of ‘people-we-don’t-like’ would evolve – the rich, those who don’t have kids, people that rent, Jews/Catholics/Muslims, [insert prejudice here].
The idea is worth exploring, if only to reveal it’s a bad idea.
Vote:February 14th, 2012 at 10:58 am
Nice idea EWS but it’s not just the individuals, it’s their employers as well. A small company employing 5-10 people and key employee, or worse the company owner, lands a 2 week jury service.
Vote:This is why I advocate a professional jury service. You get intelligent people who can turn up reliably without affecting the rest of the economy – apart from the cost of running such a service.
February 14th, 2012 at 11:00 am
@David
Juries nowadays have the right to ask questions of witnesses so you could have legitimately asked questions about the alternative scenario. I’m also dubious that the jury should be entertaining alternative scenarios in their deliberations that weren’t put forward by the defence (cf Twelve Angry Men) and at the very least, you should have asked the judge for guidance during the deliberation stage.
Vote:February 14th, 2012 at 11:01 am
Time to stop treating jurors like a pack of idiots and hence ‘sanitizing’ the evidence they hear. A Crown Lawyer tried to tell Appeal Court judges (in an unusual instance where they were assessing facts) that they should not consider certain evidence as it was ‘inadmissible’. One of the judges pointedly remarked that they were quite capable of not being wrongly influenced by inadmissible evidence. Same goes for the ordinary people who serve on juries.
Vote:February 14th, 2012 at 11:01 am
Wow, lot of very upset people here. I am guessing none of them have ever served on a jury to know what a ridiculous and dangerous perversion it places on the justice system.
Juries are a joke. I would far rather face a judge and a couple of professional jurors if I was innocent of a crime than a bigoted jury. Only the guilty love juries, which tells you why we shouldn’t have them.
Vote:February 14th, 2012 at 11:11 am
NO! There is a reason the right to trial by jury is in the Magna Carta and the 6th amendment to the US constitution. It’s damn important.
The purpose of juries is to limit the power of the government. Judges and “professional jurors” are part of the government; juries are not. As great as judges are, I don’t trust them (or anyone) with unlimited power, which this proposal would do.
Vote:February 14th, 2012 at 11:15 am
@ Cobolt
I agree it could be a big hit to the economy. I’ve seen it here where I work. That said, the crimes themselves have already had an affect on the economy, and wider society. Perhaps if we all had to go to jury duty – and experienced the disruption that crime causes to us, we’d all take a harder stance on crime in this country. Kids would have a deeper understanding of crime’s disruption and selfishness because they’d see their parents and family/friends having to interact with it – and pass judgement for the sake of the community.
My concern is that in further developing the crime ‘industry’, people in the middle-class (such as myself) will become more detached from these issues.
Vote:February 14th, 2012 at 11:17 am
@ tas
Indeed. A very good reason.
Vote:February 14th, 2012 at 11:26 am
I agree that it should be harder to escape jury service. If you can’t make it, you should be asked to come back another day. Jury service is an important part of good citizenship, and we should be less accepting of those who avoid that responsibility.
Can you imagine what kind of arrogant pricks professional jurors would be? Their job is to pass judgement on the uneducated unwashed masses, while they are generously remunerated by the taxpayer.
The law should not be something only understood by a few “experts”, who then dictate to the rest of us. All citizens should participate in the legal process.
Juries aren’t perfect, but they beat the alternative.
Vote:February 14th, 2012 at 11:29 am
Yes, the talent pool of available jurors isn’t high enough to properly understand the issues.
Vote:February 14th, 2012 at 11:33 am
@ rouppe
Shows how much you know, despite being in the electoral roll since age 18 I have been called once and had a drag out fight with my boss at the time to be able to serve (he was a small business owner and the impact was quite large as I was 40% of the total workforce).
So you can shove your sanctimonious blathering up your ass!!
I said most for a reason as empirical evidence suggests that for every citizen like me there are many who will do whatever it takes to avoid jury service and we end up with juries that are biased towards those for who the jury service is less of an inconvenience. This serves no one but the guilty as the “Rules of Evidence” are modified to suit the jury pool.
Vote:February 14th, 2012 at 11:37 am
Providing some legal instruction to jurors would go a long way to dispelling poor decisions or hung juries, therefore those selected for jury service should recieve some basic training in legal matters before being assigned to a case.
Vote:Also it would be helpful to know the full criminal history of a defendant to assist in making an informed decision. A good lawyer can influence the jury therefore some prior knowledge would be beneficial.
February 14th, 2012 at 11:38 am
I watched a doco on TV here in QLD the other night about three innocent teenagers who went to jail for murdering two ten year olds and dumping them in a drain next to a highway. It was in Alabama in the early 90s and there was a lot of press at the time about satanic cults. The teenagers listened to heavy metal and wore black clothing all the time, so the people in the small town jumped to the conclusion that they were satanists (which they weren’t).
There were a few more problems with the case, like the fact that there were no signs of the murders even having been part of a satanic ritual at all, there was no physical evidence linking the teenagers to the crime scene, and shortly after time of death (during the search for the kids) a man covered in mud was reported entering a servo/roadhouse close to the scene of the crime but the police never followed up the lead. One of the teenagers (the doco said he was the slow one…) was interrogated for several hours, and eventually made up a story about how they had done the murders, and the coppers used the taped confession in his conviction.
The taped confession was ruled inadmissable for the trial of the other two teens. One of the jurors actually told the rest of the jury about the tape – so there was no control about the release of the inadmissable evidence. Had that been presented in context at the trial and the witness allowed to be cross examined there may well have been a different result.
Anyway, long story short, the jury found them both guilty, one sentanced to death and one to life in prison. They were very lucky to have an appeal heard by the (state) supreme court, who ordered a new trial. They managed to cut a deal with the state prosecutor, who let them go for time served if they pleaded guilty and didn’t sue the state – bear in mind they’re still convicted felons. Two of them (the one on death row and the one who had the “confession”) agreed readily, the third one wasn’t going to since he didn’t want to plead guilty to a crime he didn’t commit, but the deal was that all three of them had to agree and he didn’t want the guy on death row to die if the retrial didn’t go their way. IMHO if the state prosecutor didn’t know that they were innocent there is no way they would have let somebody on death row go free – the guilty plea was a face saving exercise for the state. It is fair to say that the teens got very lucky, however they were still robbed of the best part of their lives – they went to jail aged 17 and were out in their early 30s.
What I am trying to say here is that a town who is angry can produce jurors who will readily kill an innocent person in anger with no evidence, if there is a good prosecution lawyer, community sentiment is not with the accused, and the defendants don’t exactly help themselves because they are stupid teenagers.
Trial by jury is a farce. Innocent people get punished because their trial lawyers are incompetent, and guilty people get off because they manipulate the jury something chronic.
Vote:If I was innocent of a crime I would do everything in my power not to be judged by a jury.
February 14th, 2012 at 11:39 am
I’ll ask again: Have any of the naysayers here actually been on a jury? I am betting not. Sit on one and then come back and tell me how awesome they are.
Judges and “professional jurors” are part of the government
If you mean the executive, then no they are not. They are a separate branch of government, and they are independent of politicians. If you have a problem with that, then you have a problem with the justice system itself, and would therefore be advocating mob justice. The whole point of the law is that “your peers” don’t make it up, it’s made up by democratically elected representatives and presided on by independent judges who know the law a lot better than “your peers” do.
Juries aren’t perfect, but they beat the alternative.
Bollocks. Judges aren’t perfect, but juries are abysmal. Sit on one and you will soon change your mind.
Vote:February 14th, 2012 at 11:46 am
MikeMan:
You get called up for jury service once or twice in your life. I really don’t think that is overly onerous. If you go to court as a plaintiff/defendant, you have to take time off too. You just have to accept that the legal system occaisionally inconveniences people.
As to your objection to “dumbing down” the legal process: I already remarked that the law should not be the property of an educated elite. The law belongs to all citizens. All citizens should be able to participate in it. If lawyers and judges find it too hard to explain the law to us plebs, then tough.
Vote:February 14th, 2012 at 11:48 am
# wreck1080 (2,011) Says:
February 14th, 2012 at 9:33 am
I’d support past convictions being known.
Past convictions indicate the character of a person – if joe bloggs is up on a shop lifting charge and has 100 previous shop lifting offences, odds are, they’ve shoplifted again.
This puts the onus on offenders to avoid situations where they may be implicated in a crime, knowing the chances of a conviction are higher.
The point of a trial is not to evaluate their “character”, the point of a trial is to establish whether the person did a specific act. There are plenty of people out there who have a bad character. That doesn’t mean the government should have arbitrary power to imprison these people which is what they will have if they can just flash past convictions in front of a jury and try the accused on his character rather than the specific crime he is charged with.
Moreover, I believe prior convictions can be included if they establish a pattern of behaviour which is relevant to the crime the person is charged with so your example is not valid.
Vote:February 14th, 2012 at 11:51 am
Research showed jurors had “an array of myths and prejudices” that resulted in laws restricting the use of evidence which could be prejudicial, but professional jurors could be taught to put their own prejudices aside.
Bollocks. The old “partition their mind” bullshit is just that. We are all human and even judges have a difficult enough time partitioning their mind. I wouldn’t trust professional jurors to be very good at it. I would rather keep the rules of evidence and allow ordinary people to make the decision.
Vote:February 14th, 2012 at 11:54 am
How about an alternative long term proposal. How about we start educating high school students on the legal system giving them a basic understanding of how it works and the principles which are considered important. Hell we waste their time with cooking, sewing and sports, how about something that actually matters?
Vote:February 14th, 2012 at 11:56 am
I’d support a civics program in schools. I would support a financial literacy program more.
Vote:February 14th, 2012 at 12:01 pm
DPF,
I think previous convictions should be known (partly because in today’s world, such information is difficult to hide, so better to provide it in context).
lol, you make it sound like if convictions are provided “in context” then people will look favourably upon them. Be a little bit realistic David, a crime is a crime because it is considered to be bad and therefore knowledge of such will only ever serve to prejudice a jury.
The fact that information might get out anyway is no reason to just say “to hell with it”. Indeed there is a difference between rumour and having it confirmed in court. If rumour the juror is less likely to rely on it, but if it is confirmed in court then they will have confirmation of it and are more likely to rely on it in making their decision even if they are not supposed to.
Moreover, there are plenty of rules in place regarding juries and if they start investigating the matter themselves they should be thrown in jail.
Vote:February 14th, 2012 at 12:10 pm
@taz
Once or twice….? Really?
In my forties, summonsed four times, served two juries, empannelled for a third but discharged when the defendant lost his bottle and changed his plea to guilty.
Vote:February 14th, 2012 at 12:10 pm
MAke hospitalisation the only reason for non-participation by a citizen selected for juryduty. That will solve the problem – democracy REQUIRES participation and that should be what the law reflects.
Vote:February 14th, 2012 at 12:12 pm
@TAS (11.46am)
I have no problem with serving and if you had read my reply to rouppe I did not duck jury service and actually had a stand up fight with my boss to be able to serve.
I am not saying that it should be the purview of “The Educated Elite”, but when laws are enacted to limit the amount of evidence available to a jury because it might be “Inflammatory” or “Prejudicial” as a response to the quality of the available jury pool then there is a major issue IMHO. Any law that SIGNIFICANTLY benefits the guilty in avoiding conviction needs to be removed from the books and if that skews the results based on the quality of the jury pool then changes need to be made to the system NOT the level of information available.
Vote:February 14th, 2012 at 12:25 pm
Dave Stringer – why should any small business suffer because they are forced to pay one of their workers to attend jury service?
Vote:Shoud somebody who has a position of life or death (eg a doctor, a volcanologist, a paramedic) be forced to attend jury service? What are you going to tell the families of the people who die because you forced them to be away from their position?
Juries are a farce. They should be abolished, not forced on people.
February 14th, 2012 at 12:56 pm
Yeah get rid of the Jury. Would prefer a panel of three Judges though.
Vote:February 14th, 2012 at 12:57 pm
No, thank you. I think this is a very bad idea.
Who would sign up to be a professional Juror?
Lunatics, that’s who.
Capital punishment fetishists.
Disgruntled people who think Maoris / Foreigners / whoever are mostly all criminals anyway.
Angry people who think accused = guilty and guilty = deserves death.
Gang members who want to be able to hang juries, bully other jurors and obstruct convictions.
Bob McCroskie & Garth McVicar.
Redbaiter & Dad4Justice.
Andrei & Lucia maria.
Just everybody who you WOULDN’T want judging you, if you were ever accused of something.
NO. For God’s sake, no.
Vote:February 14th, 2012 at 1:08 pm
Excellent idea.
A jury of your peers was only relevant in a time in which class distinctions and ‘status’ was all that mattered. Farmers would be tried by farmers and the like.
Especially given that we have had a complex murder trial decided by Jurors with theft convictions who hug the defendant and then try to gate crash the after party.
We don’t want ‘ordinary’ people with their very human biases and emotions deciding complex legal matters that they simply don’t understand, because then it simply descends into a case of manipulation via lawyer and whether they present as sympathetic or not.
The other option would be changing the processes to try and attract more intelligent, educated and professional people on Jury’s as opposed to the status quo that does the opposite.
Vote:February 14th, 2012 at 1:10 pm
+1
Vote:February 14th, 2012 at 1:21 pm
I have served on only one jury and was left extremely disillusioned with the process. We were presented with the case of a 13 year old Pacific Island girl accusing her father of molesting her. We heard her story/accusation. We heard his story/denial. We heard from the mother who defended her husband to the hilt and said none of it ever happened. We were then sent off to deliberation. There was no evidence other than the girl’s testimony, so we had to decide guilt or innocence on he said/she said. There were no defining “gotcha!” moments during cross-examination of the plaintiff, defendant, or witness.
After many hours, the jury couldn’t reach a verdict. About half had moved to a position of supporting a guilty verdict and at least one of these had openly expressed racial prejudice, the rest were uncomfortable about convicting someone based on one person’s accusation alone. I distinctly remember one older guy saying “of course he did it, just look at him”.
The jury returned to the courtroom and informed the Judge of our concerns. The Judge clarified that is was perfectly ok for the jury to reach a verdict purely on the basis of which story we believed and added that he wouldn’t be accepting a non-verdict from us in this case. Trying to determine which story is true when you know absolutely nothing about the story-tellers is really difficult. Most, if not all of the jurors ended up trying to infer lies or truth from body language, which was an area none of us were trained in.
We returned to deliberation and one by one the remaining jurors who weren’t comfortable with a guilty verdict changed their position to guilty. There was a lot of pressure put on those people to hurry up and agree with the rest, so that deliberation didn’t have to stretch into the next day. Ultimately, a guilty verdict was returned.
After the trial, we hear from one of the court staff that the accused had a long history of sex crimes and that we probably got it right. We probably did, but it was a 50/50 call at the time.
Vote:February 14th, 2012 at 1:24 pm
“The whole point of the law is that “your peers” don’t make it up”
And the whole point of the jury is that it can nullify the law, without fear of punishment, if they deem it oppressive.
Vote:February 14th, 2012 at 1:34 pm
People evade jury service because they lose income and are subjected to a standard of physical accommodation well below that they could reasonably expect, and well below that of the judiciary.
If we respected jury members a bit more and compensated them properly for income loss, we wouldn’t need to be considering an alternative.
Vote:February 14th, 2012 at 1:34 pm
@RRM,
I’d sign up for it, I’m no Garth McVicor, nor am I a Keith Locke.
Vote:February 14th, 2012 at 1:42 pm
The practical worry is that the ‘professional’ juror becomes the leading light or alternative ‘judge’ in the Jury room. Even the word ‘professional’ surmises such a role, and what would make this ‘professional’ person any more versed in the practical world than other jurors who are there to bring their own experiences to bear. It’s the Judges job to explain the law. Juries are sometimes maligned, but generally who could say they don’t do a good job. I think they bear the responsibilities well. A recent Jury has been maligned by a vocal few who never heard all the evidence the Jury did, nor took part in their deliberations. It’s easy to mock the Magna Carta as being applicable to ‘village life’ but that supposes that even in a village all people think the same or don’t think for themselves.
Vote:Probably I rather prefer to see a larger ‘gap’ between the sentences of those that plead guilty compared to those found guilty, that might answer what appears to be a drive toward a more economical justice system. I don’t think this proposal would be a progressive step, I’d rather see continued work on streamlining the system to get some of the costs out.
February 14th, 2012 at 1:53 pm
I think the idea of trained jurors has merit, but I think they should be ‘semi-professional’. A lot of the arguments being made against the concept is that jurors should not be civil servants or a formal part of the judiciary, which is a fair point. A better way of doing it would be for volunteers to undergo short/part-time training, and form the jury pool. They’d potentially have a regular job, though I can imagine some stay-at-home mums and part-timers would find it attractive, and just be called up every couple of years. Probably similar to regular jury service, given the number of jury-dodgers, but just with a better understanding of the issues.
Vote:February 14th, 2012 at 2:46 pm
nonpartisan (5) Says:
February 14th, 2012 at 1:21 pm
There was no evidence other than the girl’s testimony, so we had to decide guilt or innocence on he said/she said. There were no defining “gotcha!” moments during cross-examination of the plaintiff, defendant, or witness.
After the trial, we hear from one of the court staff that the accused had a long history of sex crimes and that we probably got it right. We probably did, but it was a 50/50 call at the time.
Sounds like he should have been acquitted. The test is “beyond all reasonable doubt”. Prior sex crimes are irrelevant and do not prove the allegation at hand. If you can’t tell which witness is telling the truth then the benefit of the doubt should go to the defendent.
Based on your account I would say you guys failed in your duty. Sexual violation is a serious crime but imprisoning an innocent man is just as evil if not more so because it is done in the name of all of us. In reality he may be guilty but unless you know that beyond all reasonable doubt then you are not justified in making that determination.
Vote:February 14th, 2012 at 3:43 pm
Thanks Weihana
You have just provided the best argument so far for a change in the rules.
By any measure there is a failure here.
Either an innocent man was jailed for no good reason
-or-
The rules are so screwed up that a guilty man should have been set free.
All because a jury did not know enough of the law that they knew it should have been “Beyond all reasonable doubt”, which I am sure the judge informed them of.
Now imagine that instead of 12 people off of the electoral roll who did not bail out, there were 5 people off of the electoral roll that COULD NOT bail out and 2 trained “Professionals” who get to vote and help with determinations. The test could be 6 or 7 of the 9 possible votes to convict AND the two “Professionals” could also be empowered to inform the judge on pre-conceived judgements or bias.
This is a lot fairer in my opinion in both freeing innocent people AND ensuring that the guilty do not get away with crimes based on bullshit ideas like previous criminal history is not admissible. While a previous conviction should not be a slam dunk it SHOULD be a factor.
Vote:February 14th, 2012 at 3:48 pm
Nostalgia…I would hope the Law Commission would have in mind as semi professional Jurors the Nation’s Justices of the Peace. To attain that office they have to be recommended and thoroughly vetted. Many of them have in the past adjudicated minor offences and the office has a tradition of hearing cases going back hundreds of years.
Vote:February 14th, 2012 at 3:49 pm
Weihana says:- “Sounds like he should have been acquitted”
Yup, even if his history of offending had been known to the jury. If both stories were consistent, and there was no other evidence of a crime taking place, then he should have been acquitted imo.
More proof that lay juries simply aren’t qualified to be objective.
Vote:February 14th, 2012 at 4:00 pm
backster 3.48
That’s a good point.
Vote:I wouldn’t be for a change, but if there were one JPs are certainly not ‘sheltered’ from real life which is to me the quality of a jury.
February 14th, 2012 at 4:03 pm
Scott Chris Weihana
Access re offending rates particularly those who turn down treatment or are excluded for one reason or another
Then tell me you think prior repetitive offending has no bearing on the trail.
That is a big a percentage who continue to offend
Vote:February 14th, 2012 at 4:15 pm
MikeMan,
While a previous conviction should not be a slam dunk it SHOULD be a factor.
On the basis of what nonpartisan said I would say this guys previous sex convictions shouldn’t be a factor. It is unlikely they would provide any probative value in terms of the allegations he was faced with. Generally speaking, prior sex crimes do not prove the current alleged sex crime. However, these prior sex crimes would be hugely prejudicial to the jury and so are rightly excluded from consideration.
I only think such evidence should be included if they provide overwhelming evidence of a pattern. So for instance, if some guy has been convicted multiple times of raping women and, say, carving “whore” in their chest and then if those exact same circumstances were present in the current case then that may justify allowing the evidence. But it has to be a very high standard otherwise juries, professional or not, will be swayed by prejudice rather than any actual evidence that a further crime was committed.
Vote:February 14th, 2012 at 4:20 pm
# Griff (1,404) Says:
February 14th, 2012 at 4:03 pm
Scott Chris Weihana
Access re offending rates particularly those who turn down treatment or are excluded for one reason or another
Then tell me you think prior repetitive offending has no bearing on the trail.
That is a big a percentage who continue to offend
Statistics also show Maori are more likely to offend than others. Perhaps that should be a factor as well?
The purpose of a trial is to establish facts in relation to an alleged offence. Prior convictions do not generally establish any facts or prove anything in relation to an unrelated offence even if the offending is of the same type. It is a logically fallacy to argue that because someone committed one crime they necessarily committed another.
I note there is talk of past convictions being a “factor” which seems to concede the fact that one crime doesn’t prove another. But such a “factor” generally has absolutely no probative value whatsoever. All it accomplishes is prejudicing the jury and that is why such things should be excluded. It undermines the integrity of the judicial process and results in people being convicted on the basis of their character rather than evidence which proves that a specific crime was committed.
Vote:February 14th, 2012 at 4:28 pm
So to extend your point, if someone is up on a drink driving charge it is not probative that they have 9 previous convictions for drink driving because it was in different cars and at different times of the day?
Or someone who is charged with wounding with intent has 4 previous convictions for assault type crimes, with an escalating pattern?
Are you really saying these are not cases where the history is relevant?
Vote:February 14th, 2012 at 4:30 pm
I agree with what you guys are saying. I don’t think he should have been found guilty either based on what was presented to the jury and I was the second to last jury member to cave in and go with the majority. I more or less gave up on arguing the point. I’m still not happy about it several years later, but there it is.
I found it interesting that the Judge did not stress “beyond reasonable doubt” at all when giving direction to the jury and instead reinforced the point that we could convict or not simply based on which testimony we believed to be the truth.
Vote:February 14th, 2012 at 4:39 pm
Absolutely not
As this government strengthens the previous one’s apocalyptic drive towards totalitarianism, one of our few legal defences to dangerous, spurious and knee-jerk laws is the opportunity for jury nullification.
Vote:February 14th, 2012 at 5:19 pm
# MikeMan (145) Says:
February 14th, 2012 at 4:28 pm
So to extend your point, if someone is up on a drink driving charge it is not probative that they have 9 previous convictions for drink driving because it was in different cars and at different times of the day?
Or someone who is charged with wounding with intent has 4 previous convictions for assault type crimes, with an escalating pattern?
Are you really saying these are not cases where the history is relevant?
It is relevant in sentencing. It is not relevant as to whether or not he commited the act for which he is currently charged. A trial is about determining specific facts, it is not about broad judgments of the defendant’s character.
With regards to drink driving the relevant evidence would be the testimony of an officer accompanied by an evidential breath test.
The fact that someone belongs to a class of people which has a statistically higher chance of committing a crime does not constitute proof that they actually committed the crime for which they are charged. To say that such facts constitute evidence that they committed a further crime is untenable. It would be akin to arguing that Maori belong to a class of people more likely to commit crime therefore their ethinicity should be considered as a factor. Or perhaps more specifically Maori men between the ages of 18 and 25.
Vote:February 14th, 2012 at 5:38 pm
nonpartisan,
I think the judge should have reinforced both points. That a guilty verdict must be determined beyond all reasonable doubt and that this standard can be met on the accuser’s testimony alone. Though personally I would be unlikely to find that standard met merely on the word of the accuser unless I found some significant hole in the defendant’s testimony. Indeed if the defendant provided no testimony and the accuser had no corroborating evidence then I would likely find not guilty. It’s just not good enough for me that someone accuses you of a crime and that is taken as proof without any further evidence.
Vote:February 14th, 2012 at 5:45 pm
I find nonpartisan’s story disturbing. When the only evidence is one testimony versus another, there should be no conviction. It sounds like the judge failed in his duty to explain to the jury what their job is. So this story is not an argument for vesting more power in judges!
There definitely needs to be reform of the judicial process, but we shouldn’t completely remove the role of the people, as is being suggested.
Vote:February 14th, 2012 at 5:58 pm
Yes we should have professional jurors.
Our current system means that our juries are made up of mainly the retired, the slackers and bludgers.
The few civic minded people who show up do so under protest but mindful of jury service being a part of ones place in society. The problem is that once you get on to a jury you find that most of the people you are serving with simply are not smart enough to understand what the hell is going on.
If we are not happy with professional jurors then we need tom implement a simple IQ test for all prospective jurros…..and we need to make sure that those who do serve are adequately compensated for their time away from work.
Vote:February 14th, 2012 at 6:01 pm
Past convictions should be admissible (up to some statute of limitations). If you are convicted of rape, then you lose the benefit of the doubt in future trials. It is part of the punishment; and it should also reduce reoffending, as the chance of getting convicted will go up.
I should also note that not all cases require evidence beyond reasonable doubt. For example, some cases may simply require a preponderance of the evidence which is a complicated way of saying “more likely than not”. Although for a criminal proceeding beyond reasonable doubt is definitely the standard that should be applied.
Vote:February 14th, 2012 at 6:51 pm
Yes, we need some hard out redneck Jurors. Slam the dropkick criminals.
Pinko time is coming to and end, I am sick of financing the disfunctional arseholes
Vote:February 14th, 2012 at 7:47 pm
tas (182) Says:
February 14th, 2012 at 6:01 pm
Past convictions should be admissible (up to some statute of limitations). If you are convicted of rape, then you lose the benefit of the doubt in future trials. It is part of the punishment; and it should also reduce reoffending, as the chance of getting convicted will go up.
Punishment should not be confused with maintaining the integrity of the system. If you think a rapist deserves more punishment then address that issue on its own merits. You shouldn’t use it in a disingenuous manner to try and justify something that cannot be justified on its own terms. The purpose of a trial is not to punish someone for a previous offence, it is to determine facts in relation to a specific allegation. This process should not be undermined by a desire to inflict further punishment on someone for prior acts.
The motivation here appears to be to “get the man” rather than to try and reach a proper verdict. This does not serve justice and would likely see innocent people convicted and the actual culprit run free because a conviction for someone previously convicted would be so easy. Why would police try to find the actual culprit when they can just pin it on an easy target and notch up another conviction under their belts?
Vote:February 14th, 2012 at 7:55 pm
No.
No way.
The idea seems superficially attractive, but there is a real danger the “professional juror” will simply become a servant of the system, and therefore subject to influence/control.
The whole point of a jury is the idea of “12 ordinary men and women,” assessing a factual matrix from a fresh perspective.
Vote:February 14th, 2012 at 7:57 pm
Good points Weihana. Nobody should be looking for a deterioration in the system – rather improvements.
Vote:February 14th, 2012 at 8:25 pm
Weihana says:- “The purpose of a trial is not to punish someone for a previous offence, it is to determine facts in relation to a specific allegation.”
Yes, but a person’s propensity to commit crime is an important factor in weighing up the balance of probabilities for an objective adjudicator. Fact is, if you’ve committed, say, arson before and there is circumstantial evidence linking you to a subsequent arson, then chances are you lit the fire, possibly beyond the point of no reasonable doubt. That’s simply the nature of the laws of probability.
Vote:February 14th, 2012 at 8:36 pm
I have reservations about the idea of professional jurors, partly because it makes jury nullification less likely which would be a shame. However I’d be prepared to accept that if it were the price we paid to ensure that past convictions became admissable as part of the body of evidence, something that is long overdue.
The farce of withholding evidence from juries must also stop. No decision has ever been improved by being on the basis of less information. As peterwn quite rightly points out;
Time to stop treating jurors like a pack of idiots and hence ‘sanitizing’ the evidence they hear. A Crown Lawyer tried to tell Appeal Court judges (in an unusual instance where they were assessing facts) that they should not consider certain evidence as it was ‘inadmissible’. One of the judges pointedly remarked that they were quite capable of not being wrongly influenced by inadmissible evidence. Same goes for the ordinary people who serve on juries.
All evidence must go before the jury, including prior track record. Corrections themselves along with a number of other specialists in the field have repeatedly stated that ” the best predictor of future behaviour is past behaviour”
I think it would be preferable to improve the current system, rather than go down the professional juror route, and having served on a jury (and been called for another that clashed with a trip I had booked) I can see masses of room for improvement.
For a start, allow people to volunteer another block of time when they are available if they are called for a trial at a time when they aren’t. That way we have them available for another trial. Jurors also need to be compensated better for their time, and given help with parking/ transport where necessary.
I also think there would be a lot to be said for the idea someone suggested of having a semi-professional volunteer juror pool of people that will be available and have some basic legal training (I’m thinking a one week induction course type of thing) rather than randomly selecting people who just cannot do it because of work or other commitments. Alternatively, allow people to perhaps opt out of being in the selection pool if they or their employers really cannot spare them, or they are otherwise unsuited to be on a jury
Regards
Vote:Peter J
Webmaster for http://www.sensiblesentencing.org.nz
February 14th, 2012 at 8:47 pm
Peter J
You so easily betray your wish to have guilt decided by colour, the past, the ‘propensity’ for an individual, or culture, or class to committ crime. No where do you mention the elements of an alleged crime and proof of that. Your divining power seems to be witch craft, stirring a cauldron by the call of the moon and long shadows.
Vote:Tell me what would the propensity of a person, guilty of theft and assault, then later drink driving, be if he or she was to become an elected official, an mp even?
February 14th, 2012 at 8:50 pm
Weihana:
I should have expressed myself better. I think the reason to admit past convictions is that they give character information etc.. The main objection is that it would be unfair. Juries should be allowed to judge what evidence is relevant or not. And, even if it is unfair, I wanted to point out that that may not be so terrible.
I think that witholding evidence makes a farce of the jury process and it needs to be curbed. Even victim impact statements get censored…
Vote:February 14th, 2012 at 8:52 pm
Two points:
1) If a person is being tried for a crime his/her guilt or innocence should be determined on the facts that pertain to that allegation only. He/she is not being tried for what happened in the past. For sentencing a past record must be considered.
2) Anything to do with the law is complicated, so much so that criminal law is an area of specialisation within the legal profession. As long as we have juries of ordinary citizens the entire process of a trial has to be kept simple enough for them to understand. Our legal eagles speak in tongues now……imagine how bad it would be if trials were conducted in pure legalese.
You could stand in the dock for six weeks & not have understood a single thing that has gone on. That is not justice.
Vote:February 14th, 2012 at 9:11 pm
nasska, You could stand in the dock for six weeks & not have understood a single thing that has gone on.
That happens now, jurors simply have no idea whats going on half the time. Jury trails are a farce.
An old maxim, if your are guilty have a jury trial, if you are innocent , judge alone.
Defence lawyers live in fear of the day juries get the” don’t come Monday”. Believe it or not 99.9% of High Court Judges are bloody sharp and are not swayed by show boating defence teams.
Speaking of which, my heart was gladdened this morniong to read that Barry Hart has lost his name suppression bid and is facing charges of professional misconduct.
If one individual can give an entire profession a bad name it is highlighted here.
Vote:February 14th, 2012 at 9:14 pm
1. All evidence? Including about (alleged) victims?
Vote:2. Corrections experts have a worse than 50:50 prediction record on reoffending. A coin flip would be right more often that corrections experts.
February 14th, 2012 at 9:21 pm
“his/her guilt or innocence should be determined on the facts that pertain to that allegation only”
Yes but facts are rarely undisputed and propensity allows fact finders to make informed decisions. Although unfortunately when those fact finders are lay persons and unduly influenced by prejudice (as posters above demonstrate) the ‘facts’ are not decided with all the pertinent information.
And if you want a system based solely on the facts then you should be supporting the change, not the status quo.
Go sit in on a Judge alone case and compare it to one in which a jury is involved, you will soon make up your mind as to which provides the most just outcome simply by listening to how the facts are argued in each.
Vote:February 14th, 2012 at 9:26 pm
Pauleastbay
Points noted. When we get a verdict such as was reached in the retrial of Karam’s mate it makes you a bit sus of the whole process.
I would still hate for the system to be taken over by the legal profession entirely……lay people may be a pain but by their presence they tend to stop the experts from disappearing completely up their own arses.
Vote:February 14th, 2012 at 9:30 pm
Dexter
A fact is a fact, can’t change that.
What most jury trails consist of is defence teams attempting to cast doubt especially if the prosecution has got an airtight case.
IF it was all Judge alone, in a perfect world, in most cases the Judge would call the teams into chambers and say to the defence, ..you son are rooted, get a good ..in mitigation speech in order to knock a few years off.
Vote:February 14th, 2012 at 9:35 pm
Dexter
Prejudice & general thickness of the jurors are a factor. As Paul 9.11pm states you are likely to receive a higher standard of justice from a Judge alone but I would be personally loth to see the jury option abolished.
I still reckon that whatever a person is accused of their trial should not include anything about their past…..sentencing is obviously different.
Vote:February 14th, 2012 at 9:39 pm
nasska
the very reason we get results like Bain is because lay people are involved.
I spent most of my life for the prosecution and have also appeared at a few trials for the defence when I was private and the legal system is good, individuals let it down but the system is solid ,people on both sides are professional.
You spend weeks putting a trial together (prosecution or defence) and you loose because a couple of jurors have the IQ of the average room temperature, thats not justice
Vote:February 14th, 2012 at 9:50 pm
Pauleastbay 9.39
That’s exactly what Justice is Pauleastbay. You can’t possibly know the IQ of a juror. You can’t even know which way they voted. You seem to want to control Justice by standards that are beyond the law, that rely on some elite knowledge of what people might think, or their intelligence, their ability to think that you, in particular, are right and not allow them to function as a juror or as a member of society.
Vote:February 14th, 2012 at 9:50 pm
Pauleastbay
The ‘system is solid’ & in fact we are bloody lucky to have what we’ve got. It’s more that when things get complicated to the point that only experts can understand them we the public, or “justice consumers” in Newspeak, are left completely out of the loop. Ignorance of what is going on breeds contempt & indifference to the process in the victims, the crims & their families.
If you as a prosecutor had only to address the Judge & the defense you would use totally different methods of communication to those involved in keeping a jury in the picture.
Vote:February 14th, 2012 at 10:40 pm
Some interesting points raised here.
IMHO if we are not keen on professional jurors then there does need to be changes made.
1. Somebody (sorry, cannot remember who) mentioned parking, now this might seem like a silly thing but finding a car park near any court house in a major city is a flipping nightmare
2.Those of us who have served on a jury know that once you start deliberating it usually takes some time to come to a conclusion, it does not help matters (or justice) if what you are given to eat at meal times is fucking inedible.
3.Pay people what they earn in a normal day to undertake jury service and also compensate their employer for time lost.
4.Create a register of people who have indicated their willingness to serve, these people must have passed a simple IQ test and they should be free to travel to any part of NZ.
If you implemented all the above points you would actually save money, the current system of selecting a jury wastes thousands of dollars in time and money not to mention the hassle of making sure enough people turn up to form a jury.
Vote:Instead of over 100 people being asked to turn up for jury selection you could contact say 25 registered jurors and tell the lawyers that they have these people to choose from.
February 14th, 2012 at 11:15 pm
Nostalgia
Its not about control its about seeing that the system is at its best. If you have 12 retards sitting listening to a case and are going to blindly vote for the prosecution or defence due to their predjudices I fail to see how society is served, thats not justice. A jury of your peers is a myth.
Nasska – fair point about alienation from the system but its equally as bad for me as a copper if the system continually lets people walk , not due to slack work by me or brilliance by the defence but by 2 or three jurors who can’t or wont accept a series of facts, who may not be bad people but even naievity can do society harm.
Bruv,- makes good points,who wants to give a weeks work and get paid $70 a day ? only the retired and unemployed have time for that.
Vote:February 15th, 2012 at 7:29 am
Pauleastbay 11.15
You let you’re argument down by saying ’12 retards’ that’s never going to happen. But you are certainly correct about those that might blindly vote one way or the other – accepted. A most glaring example being of the cries of outrage when some individuals are arrested, found guilty before the public even know there names – those types of people also serve on Juries unfortunately, but overall it’s a mix of society, and what prosecutors and defence lawyers must deal with. Big Bruv’s ideas would be a good refinement however.
Vote:February 15th, 2012 at 12:56 pm
# Scott Chris (3,667) Says:
February 14th, 2012 at 8:25 pm
Weihana says:- “The purpose of a trial is not to punish someone for a previous offence, it is to determine facts in relation to a specific allegation.”
Yes, but a person’s propensity to commit crime is an important factor in weighing up the balance of probabilities for an objective adjudicator. Fact is, if you’ve committed, say, arson before and there is circumstantial evidence linking you to a subsequent arson, then chances are you lit the fire, possibly beyond the point of no reasonable doubt. That’s simply the nature of the laws of probability.
I don’t agree that such a statistical probability is an important factor. It does not aid in making a proper decision. Guilt should be determined beyond all reasonable doubt. If on the evidence, excluding past convictions, a case is deemed not to be proved beyond all reasonable doubt then I do not agree that consideration of past convictions can assist in getting beyond that evidentiary burden. All it achieves is to prejudice the jury and the inference is that because he committed the past crime he must be guilty in the present case. Reaching a decision on the basis is not reasonable nor credible.
There are plenty of classes to which people can belong which have varying statistical probabilities concerning the likelihood of committing crime. One of the classes with a higher probability of committing crime is young Maori men. I see no logical difference in basing a decision on the fact that one is a young Maori male as basing a decision on having past convictions. Both shouldn’t be allowed.
If the prosecution doesn’t have enough evidence to convict in the present case then too bad. If they must rely on past convictions then their case is obviously weak and not proven beyond all reasonable doubt.
Vote:February 15th, 2012 at 2:03 pm
Weihana says:- “All it achieves is to prejudice the jury”
I’m not suggesting lay juries be given this information, but if the law commission’s proposal (to introduce professional jurors or better still, a panel of judges) were to be implemented, then these adjudicators should be given access to *all* relevant information as they would be specifically trained to be objective. That includes a person’s propensity to commit crime in the form of his/her criminal record. All the panel would be charged with determining is the degree of probability that the person being tried did actually commit the crime.
>>”I see no logical difference in basing a decision on the fact that one is a young Maori male as basing a decision on having past convictions”
There is a massive difference. You either have the convictions or you don’t. In fact, a Maori or a heavily tatooed person with a clean criminal history is more likely to be discriminated against because of a conditioned sub-conscious presumption that he is more likely to have criminal tendencies *unless* the actual fact of the matter is established.
Vote:February 15th, 2012 at 3:19 pm
Scott Chris,
I’m not suggesting lay juries be given this information, but if the law commission’s proposal (to introduce professional jurors or better still, a panel of judges) were to be implemented, then these adjudicators should be given access to *all* relevant information as they would be specifically trained to be objective. That includes a person’s propensity to commit crime in the form of his/her criminal record. All the panel would be charged with determining is the degree of probability that the person being tried did actually commit the crime.
But prior convictions are not “relevant information” pertaining to the alleged crime. Just because something relates to the defendant does not make it relevant to the alleged crime.
One cannot logically infer anything about a specific event on the basis of prior events completely unrelated to the event in question. To say that they are related is to assume the defendant guilty of the crime because only if the defendant is guilty can we say that his prior bad acts are related to the present case by virtue of those crimes being committed by the same person. But to assume guilt on the part of the defendant is to assume the very thing a criminal trial is intended to prove in the first instance.
“There is a massive difference. You either have the convictions or you don’t. ”
And a person is either Maori or not. I don’t understand your point here.
My point is that prior convictions and ethnicity are both statistical indicators relevant to the defendant, but neither has any relevance to the alleged crime at hand. Neither should be used as evidence in a criminal trial unless they are relevant. In the case of prior convictions it may establish a pattern (which is a high standard and different to showing the defendant has a propensity for a certain type of crime) and in the case of ethnicity it may establish identity.
Even considering professional jurors I would not agree to change the rules of evidence in this way. Professionals, even judges, are not superhuman. The only effective way to not cloud their minds with bias and prejudice is to remove such highly prejudicial information from their consideration.
Vote:February 15th, 2012 at 5:11 pm
“But prior convictions are not “relevant information” pertaining to the alleged crime.”
We simply disagree on this point. As far as I’m concerned a court can never be 100% sure of a person’s culpability so reaching the best reasonable verdict is simply a matter of determining the likelihood of an event having taken place to the greatest degree of accuracy possible. Past behaviour is highly predictive of present behaviour in the human animal so I can’t understand why you don’t see the logical connection between that in relation to determining the likelihood of someone having committed an alleged crime. What you advocate basically amounts to censorship of information.
>>”And a person is either Maori or not. I don’t understand your point here.”
The point is that prejudice against a man based on how he looks is a delusion, whereas knowledge of his *actual* history is not.
Put it this way. If I know a white guy called Bob can run 100m in 10.5 seconds and I pluck an athletic looking African American at random off the street to race against him, I’d be crazy to back the black guy even though he looks faster, because I know Bob’s history.
Vote:February 16th, 2012 at 2:57 pm
Scott Chris (3,672) Says:
February 15th, 2012 at 5:11 pm
Past behaviour is highly predictive of present behaviour in the human animal so I can’t understand why you don’t see the logical connection between that in relation to determining the likelihood of someone having committed an alleged crime.
By claiming relevance you are employing circular reasoning. The evidence must be relevant to the alleged crime and not just relevant to the defendant. To assume it is relevant to the crime is to assume the defendant is guilty, the very thing the trial sets out to establish.
The logic is quite simple:
X is a rapist who has raped multiple women.
Y is a women who has been raped.
Conclusion: X’s tendency towards rape is relevant to Y if and only if X is the person who raped Y.
The conclusion is proved by the simple fact that it is possible that someone other than X raped Y. Therefore to assume relevance is to assume that it is impossible that anyone but X raped Y.
I agree that a court cannot determine facts to an absolute certainty, that is impossible. But in reaching its verdict it should only concern itself with evidence that is shown to be relevant. Am I censoring information? Yes, absolutely. Because that is essential to a fair trial and to eliminate the tendency towards bias and prejudice. If a jury bases its verdict on information that is irrelevant then their decision lacks integrity. As Nostalgia-NZ aptly put it, it amounts to “witch craft, stirring a cauldron by the call of the moon and long shadows.”.
The point is that prejudice against a man based on how he looks is a delusion, whereas knowledge of his *actual* history is not.
Knowledge of the defendant’s history is not knowledge of the alleged crime. You err by conflating the two.
Knowledge of history only presents us with a statistical likelihood. That is the very same thing that matters like ethnicity, age, gender etc present us with. These aren’t delusions they are statistical facts. Young Maori men are more likely to be criminals than other classes of people. One can wonder all day about the root cause of this fact but a fact it remains.
And despite it being a statistical fact, just as the fact that past offenders are more likely to be future offenders, it shouldn’t be considered in a criminal trial unless relevance is established. For instance if X proclaims that he has never raped women, then his criminal history would be relevant in order to impeach such testimony.
Vote:February 16th, 2012 at 3:47 pm
“By claiming relevance you are employing circular reasoning”
Not at all. I simply see the process of establishing culpability beyond reasonable doubt as being one of determining the statistical probability that alleged offence actually took place.
Put it this way. Imagine I’m a judge and you’re a judge and we both have the same degree of competence. We both are presented with identical evidence from 100 trials, the only difference being that I have access to the criminal records of the accused as well as those of all other witnesses including the victims.
Who would achieve the greatest accuracy in delivering the correct verdict: You or I?
Vote: