Sunday, December 08, 2013

Why We Don't Have the Greatest System in the World

Anyone who has served on a jury has heard a speech from a judge about our criminal justice system is the greatest in the world because the citizens participate and act as finders of fact.  The judge doesn't distinguish our system from genocidal regimes in which the citizens participated and found facts (as in Nazi Germany or Rwanda).  Here's what you may not know about the jury system in our country.

Jurors are told that they are the judges of the case, while his or her honor simply presides neutrally over the trial.  Nothing could be further from the truth.  The jury only hears facts that the judge has predetermined that they can hear (much of the evidence is excluded from every criminal trial).  Sometimes this benefits the accused but more often the prosecution.

The judge will further tell you that you can only judge facts as s/he will give the jurors the law which they have a duty to follow.  That is a blatant lie.  What the judge doesn't tell you is that while you may have a duty to follow the law as determined by the judge you have the right not to do so, particularly if you perceive the law to be unjust.

Similarly juries are not allowed to consider punishment.  Punishment is the judge's domain.  That means ultimately the jury is not the judge of the case.  It is the judge.  In many trials if the jury knew how draconian the punishment is their decision about whether or not to apply the law would be affected (which is why they don't want you to know the punishment).

The judge will also tell you that you have to evaluate the testimony of police officers in the same way as any other witness.  Then the cops come in one by one in full uniform with a gun conspicuously at their hip and give the official version of the case.  You can not help but be influenced by the pomp and circumstance of the officer's appearance.  So you will tend to believe a cop even if you really try to be neutral and you will say to yourself "something must have been done and badly done or we wouldn't be having a trial.

This leads to the biggest joke of all which is that the defendant is not obligated to take the stand and the jury shall not take his/her silence as evidence of guilt.  In most criminal trials the accused does not take the stand and despite the instructions of the judge the jurors are affected by that.  I have never tried a case, win or lose, where jurors didn't say to me afterwards "why didn't we get to hear his/her side."

These are a few reflections on our system.  This discussion is only the beginning.  It doesn't take into account racial bias, unrepresentative jury panels, capricious judges or prosecutors who lie.  When all this is taken into account I can think of a number of justice systems that work better than ours.  I am just not allowed to say that to the jury.


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