There are problems with an adversarial system—attorneys are rewarded for using weak but plausible arguments for their clients, and as stated above, there are also inequities in the quality of attorneys that different people can afford. Further, attorneys are so expensive that poorer people get an attorney supplied by the court who may not bother to try, or be so ill-paid that they can’t afford to put a good case together.
There are also problems with an inquisitorial system. Iterated prisoner’s dilemma implies that the investigator may be on the side of the court more than on the side of the accused. In theory, juries are supposed to prevent that, but US practice has been to give juries less and less information and to tell them that they have less and less freedom to use their whole minds.
I assume that a Bayesian court would permit—possibly even encourage—jurors to do additional research during the trial.
Some of the problems can be ameliorated by combining the systems—three voices, speaking for the accused, the defense, and a third that’s hopefully a neutral investigator.
Permitting the jurors to ask questions (afaik, a relatively recent addition to US practice and not universal here—I don’t know about other countries) is a significant contribution to getting more minds on the problem of getting all the relevant information and arguments on the table.
I’d just note that in my jurisdiction, if you had the choice between random draw of the deputy public defenders, and random draw of the private attorneys, you’d want to take out of the first group. Public defense does not have to suck, and often doesn’t.
That said, there are certainly differences in defense attorney quality, differences that matter.
Do you think the difference between the range of quality for deputy public defenders and for private attorneys is typical? If not, any theories about what causes the difference?
From my discussions in other mid-size and larger counties which have full-time properly paid public defenders, yes.
The reason for it is (IMO) that full-time public defenders often have much more experience, plus specific interest in criminal law. You won’t get the hand-holding, but you will get the expertise.
In places where public defenders are paid poorly (or you have some other alternate defense method which pays poorly) your attorney pool will be, predictably, poorer.
Again, there are some… unfortunate attorneys of all stripes out there. But if you’re in a jurisdiction where there’s money and effort being put in public defense, that effort has a payoff.
Iterated prisoner’s dilemma implies that the investigator may be on the side of the court more than on the side of the accused.
Please call them “prosecutors” since in the U.S., “investigators” are people without law degrees hired by the defense or prosecution to interview potential witnesses, etc.
I was using “investigator” to refer to the professionals who are laying out the arguments about the case without being on on either side—what I was taking an “inquisitorial” system to be. There are obvious reasons for not calling them “inquisitors”.
They obviously aren’t prosecutors because they aren’t specifically attempting to get a conviction. Do you have a recommended term?
There are problems with an adversarial system—attorneys are rewarded for using weak but plausible arguments for their clients, and as stated above, there are also inequities in the quality of attorneys that different people can afford. Further, attorneys are so expensive that poorer people get an attorney supplied by the court who may not bother to try, or be so ill-paid that they can’t afford to put a good case together.
There are also problems with an inquisitorial system. Iterated prisoner’s dilemma implies that the investigator may be on the side of the court more than on the side of the accused. In theory, juries are supposed to prevent that, but US practice has been to give juries less and less information and to tell them that they have less and less freedom to use their whole minds.
I assume that a Bayesian court would permit—possibly even encourage—jurors to do additional research during the trial.
Some of the problems can be ameliorated by combining the systems—three voices, speaking for the accused, the defense, and a third that’s hopefully a neutral investigator.
Permitting the jurors to ask questions (afaik, a relatively recent addition to US practice and not universal here—I don’t know about other countries) is a significant contribution to getting more minds on the problem of getting all the relevant information and arguments on the table.
I’d just note that in my jurisdiction, if you had the choice between random draw of the deputy public defenders, and random draw of the private attorneys, you’d want to take out of the first group. Public defense does not have to suck, and often doesn’t.
That said, there are certainly differences in defense attorney quality, differences that matter.
Do you think the difference between the range of quality for deputy public defenders and for private attorneys is typical? If not, any theories about what causes the difference?
From my discussions in other mid-size and larger counties which have full-time properly paid public defenders, yes.
The reason for it is (IMO) that full-time public defenders often have much more experience, plus specific interest in criminal law. You won’t get the hand-holding, but you will get the expertise.
In places where public defenders are paid poorly (or you have some other alternate defense method which pays poorly) your attorney pool will be, predictably, poorer.
Again, there are some… unfortunate attorneys of all stripes out there. But if you’re in a jurisdiction where there’s money and effort being put in public defense, that effort has a payoff.
Please call them “prosecutors” since in the U.S., “investigators” are people without law degrees hired by the defense or prosecution to interview potential witnesses, etc.
I was using “investigator” to refer to the professionals who are laying out the arguments about the case without being on on either side—what I was taking an “inquisitorial” system to be. There are obvious reasons for not calling them “inquisitors”.
They obviously aren’t prosecutors because they aren’t specifically attempting to get a conviction. Do you have a recommended term?