I suspect as a start that it would result in a smaller percentage of defendants being found guilty at trial.
I disagree. The most obvious reason is that were our system that efficient, prosecutorial behaviour would change.
But more significantly, a Bayesian processing system would not need to exclude relevant evidence. The only evidence it would exclude would (presumably) be that obtained in violation of the defendant’s rights. By incorporating and accurately weighting certain forms of character and hearsay evidence that are not available to a jury, I believe one could prove many cases beyond a reasonable doubt that currently impossible (drug lords and mafia bosses, for example, would be rather easier to convict of something).
Guilty people getting off is, in general, not big news, unless the defendant or crime is already very high profile. Moreover, since the criminal cannot be retried under double jeopardy, no one really goes about examining the wrongfully freed. One can be freed after being wrongfully convicted, so there is some incentive to examine the wrongly convicted. (If you count the people who could be proven guilty to a Bayesian intelligence, but not to a jury, this is a much more significant problem).
In other words, you may well be right, but I think you need a lot more evidence to get to that conclusion. And that still requires prosecutorial behaviour to be exogenous, which is an unreasonable assumption.
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?
What do people think would be the ideal Bayesian structure for a trial. I think adversarial with a jury of peers is probably not the best choice. Some kind of inquisitorial panel makes sense but you have to deal with group think and career minded judges. The judges should be trained rationalists, I guess.
I think something like an adversarial system with a jury of peers would still be a good choice with perfect Bayesian agents. This structure exists largely to avoid conflicts of interest, not merely to compensate for human irrationality. Unless you are assuming that perfect Bayesian agents would not have conflicts of interest (and I don’t see any reason to suppose that) then you would still want to maintain those aspects of the legal system that are designed to avoid such conflicts.
There are two common classes of reasons why evidence may be inadmissible or excludable in a trial. One of these classes should probably be admissible with a perfect Bayesian jury, the other not.
Evidence that is inadmissible because it would prejudice or mislead the jury (like information about prior convictions) would probably be fine with a jury of perfect Bayesians but evidence that is thrown out because it was obtained in some way that society deems unacceptable might still be rejected because of broader concerns about creating inappropriate incentives for law enforcement.
This raises the question of just how perfect your Bayesians are however. If they are very good at correctly weighing relevant evidence but still have computational limits these concerns would probably apply. If they are some kind of idealized agents with infinite computational capacity then you might draw different conclusions but as this case is impossible it is not very interesting in my opinion.
So obviously if everyone was a perfect Bayesian agent a jury would be fine. I actually think imagining how things would work with perfect Bayesians is boring. I was thinking more realistically, as in, how would I design a new justice system tomorrow (or in 5 years when we’re really good at this) to minimize irrationality as much as possible. No perfect Bayesians just smart people you can teach things to.
The advantage of judges over juries is that we could teach judges to be rationalists as part of their job. Also, the adversarial system strikes me as bias inducing. The wealthy get better representation. I think even if we want to keep adversaries in place we should at least give whoever is making the decision more investigative and active in their role. Instead of just listening to arguments they should be asking questions and thinking things through in real time. More like the Supreme Court hears cases than the way a regular jury does. Listening to two pieces of propaganda and then deciding doesn’t seem like the ideal way of settling questions of fact. It might be a decent starting point, though.
Making that biasing evidence admissible is definitely a good call assuming properly trained judges.
The advantage of judges over juries is that we could teach judges to be rationalists as part of their job.
I still think you are missing a primary reason for having a jury system. The role of the judge in a jury system is to be an expert on the law and to explain to juries how it applies to the current case, to ensure the trial is conducted under the rules of the system and to pass sentencing.
The decision of guilt or innocence is delegated to the jury in an attempt to avoid conflicts of interest. Because of the requirement for the judge to be an expert on the law it must be a long term position and so the judge would be an obvious target for bribery or intimidation and will be prone to conflicts of interest when deciding verdicts where the state’s interests are opposed to a private citizen’s. Historically jury nullification was seen as an important check on unreasonable or unpopular laws.
Adversarial systems have similar advantages in terms of reducing the potential for conflicts of interest to unduly influence the outcome of a trial. The alternative of an inquisitorial system again runs the risk of biasing the court in favour of the state or establishment and against the private citizen.
The history of common law systems reveals an ongoing process attempting to balance the rights and interests of the state, private citizens, the defendant and the prosecution in a world where bias and conflict of interest are recognized to exist. The results are not perfect but understanding why such systems developed as they did is an essential prerequisite to any consideration of possible improvements.
I’m quite familiar with these arguments. I’m not sure why you’d suppose I wasn’t.
The decision of guilt or innocence is delegated to the jury in an attempt to avoid conflicts of interest. Because of the requirement for the judge to be an expert on the law it must be a long term position and so the judge would be an obvious target for bribery or intimidation and will be prone to conflicts of interest when deciding verdicts where the state’s interests are opposed to a private citizen’s.
First, my claim is that determining matters of fact also requires a kind of expertise. Second, I’m generally skeptical about the extent to which an adversarial system protects judges from conflicts of interests, bribes and intimidation more than an inquisitorial system. Even in adversarial systems judges exercise a lot of control and are bribed and intimidated on a regular basis. Lots of liberal democracies have inquisitorial systems and aren’t especially notorious for coerced or biased judges. Is there evidence that civil systems lead to more bribery? Third, this fear of judges siding with “the state” against private citizens can be (and is) remedied by checks and balances elsewhere (like the kind all liberal societies already have) and mechanisms to allow the public to fire judges. Fourth, what conflicts of interest aren’t avoidable with oversight in an inquistorial system that are avoidable in a adversarial system?
I don’t think a fair, rational system should include anything like jury nullification.
The results are not perfect but understanding why such systems developed as they did is an essential prerequisite to any consideration of possible improvements.
“The results are not perfect” considerably understates the problems, methinks.
Third, this fear of judges siding with “the state” against private citizens can be (and is) remedied by checks and balances elsewhere (like the kind all liberal societies already have) and mechanisms to allow the public to fire judges.
What specific checks and balances do you have in mind? The current system can let serious forensic fraud and gross judicial misconduct continue for a very long time.
Even if you have good Bayeianisms, you might still want to throw out prejudicial information that isn’t likely to be relevant. It is safer that way and doesn’t rely on making as narrow an estimate about how good people are at being rational.
Alternatively, it might make sense to do away with juries altogether and simply have judges decide everything. However, there’s some evidence that judges are not much better than juries at deciding cases. So I’m not sure that would help much.
I disagree. The most obvious reason is that were our system that efficient, prosecutorial behaviour would change.
But more significantly, a Bayesian processing system would not need to exclude relevant evidence. The only evidence it would exclude would (presumably) be that obtained in violation of the defendant’s rights. By incorporating and accurately weighting certain forms of character and hearsay evidence that are not available to a jury, I believe one could prove many cases beyond a reasonable doubt that currently impossible (drug lords and mafia bosses, for example, would be rather easier to convict of something).
Guilty people getting off is, in general, not big news, unless the defendant or crime is already very high profile. Moreover, since the criminal cannot be retried under double jeopardy, no one really goes about examining the wrongfully freed. One can be freed after being wrongfully convicted, so there is some incentive to examine the wrongly convicted. (If you count the people who could be proven guilty to a Bayesian intelligence, but not to a jury, this is a much more significant problem).
In other words, you may well be right, but I think you need a lot more evidence to get to that conclusion. And that still requires prosecutorial behaviour to be exogenous, which is an unreasonable assumption.
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?
What do people think would be the ideal Bayesian structure for a trial. I think adversarial with a jury of peers is probably not the best choice. Some kind of inquisitorial panel makes sense but you have to deal with group think and career minded judges. The judges should be trained rationalists, I guess.
I think something like an adversarial system with a jury of peers would still be a good choice with perfect Bayesian agents. This structure exists largely to avoid conflicts of interest, not merely to compensate for human irrationality. Unless you are assuming that perfect Bayesian agents would not have conflicts of interest (and I don’t see any reason to suppose that) then you would still want to maintain those aspects of the legal system that are designed to avoid such conflicts.
There are two common classes of reasons why evidence may be inadmissible or excludable in a trial. One of these classes should probably be admissible with a perfect Bayesian jury, the other not.
Evidence that is inadmissible because it would prejudice or mislead the jury (like information about prior convictions) would probably be fine with a jury of perfect Bayesians but evidence that is thrown out because it was obtained in some way that society deems unacceptable might still be rejected because of broader concerns about creating inappropriate incentives for law enforcement.
This raises the question of just how perfect your Bayesians are however. If they are very good at correctly weighing relevant evidence but still have computational limits these concerns would probably apply. If they are some kind of idealized agents with infinite computational capacity then you might draw different conclusions but as this case is impossible it is not very interesting in my opinion.
So obviously if everyone was a perfect Bayesian agent a jury would be fine. I actually think imagining how things would work with perfect Bayesians is boring. I was thinking more realistically, as in, how would I design a new justice system tomorrow (or in 5 years when we’re really good at this) to minimize irrationality as much as possible. No perfect Bayesians just smart people you can teach things to.
The advantage of judges over juries is that we could teach judges to be rationalists as part of their job. Also, the adversarial system strikes me as bias inducing. The wealthy get better representation. I think even if we want to keep adversaries in place we should at least give whoever is making the decision more investigative and active in their role. Instead of just listening to arguments they should be asking questions and thinking things through in real time. More like the Supreme Court hears cases than the way a regular jury does. Listening to two pieces of propaganda and then deciding doesn’t seem like the ideal way of settling questions of fact. It might be a decent starting point, though.
Making that biasing evidence admissible is definitely a good call assuming properly trained judges.
I still think you are missing a primary reason for having a jury system. The role of the judge in a jury system is to be an expert on the law and to explain to juries how it applies to the current case, to ensure the trial is conducted under the rules of the system and to pass sentencing.
The decision of guilt or innocence is delegated to the jury in an attempt to avoid conflicts of interest. Because of the requirement for the judge to be an expert on the law it must be a long term position and so the judge would be an obvious target for bribery or intimidation and will be prone to conflicts of interest when deciding verdicts where the state’s interests are opposed to a private citizen’s. Historically jury nullification was seen as an important check on unreasonable or unpopular laws.
Adversarial systems have similar advantages in terms of reducing the potential for conflicts of interest to unduly influence the outcome of a trial. The alternative of an inquisitorial system again runs the risk of biasing the court in favour of the state or establishment and against the private citizen.
The history of common law systems reveals an ongoing process attempting to balance the rights and interests of the state, private citizens, the defendant and the prosecution in a world where bias and conflict of interest are recognized to exist. The results are not perfect but understanding why such systems developed as they did is an essential prerequisite to any consideration of possible improvements.
I’m quite familiar with these arguments. I’m not sure why you’d suppose I wasn’t.
First, my claim is that determining matters of fact also requires a kind of expertise. Second, I’m generally skeptical about the extent to which an adversarial system protects judges from conflicts of interests, bribes and intimidation more than an inquisitorial system. Even in adversarial systems judges exercise a lot of control and are bribed and intimidated on a regular basis. Lots of liberal democracies have inquisitorial systems and aren’t especially notorious for coerced or biased judges. Is there evidence that civil systems lead to more bribery? Third, this fear of judges siding with “the state” against private citizens can be (and is) remedied by checks and balances elsewhere (like the kind all liberal societies already have) and mechanisms to allow the public to fire judges. Fourth, what conflicts of interest aren’t avoidable with oversight in an inquistorial system that are avoidable in a adversarial system?
I don’t think a fair, rational system should include anything like jury nullification.
“The results are not perfect” considerably understates the problems, methinks.
What specific checks and balances do you have in mind? The current system can let serious forensic fraud and gross judicial misconduct continue for a very long time.
Even if you have good Bayeianisms, you might still want to throw out prejudicial information that isn’t likely to be relevant. It is safer that way and doesn’t rely on making as narrow an estimate about how good people are at being rational.
Alternatively, it might make sense to do away with juries altogether and simply have judges decide everything. However, there’s some evidence that judges are not much better than juries at deciding cases. So I’m not sure that would help much.