I’m currently researching the rationality of criminal trials, though my focus is on evidence law. The current adversarial system does have some advantages:
An adversary system creates incentives to bring information before the court. Parties want to win. In particular, the defendant has a direct interest in avoiding punishment. Defendants can help themselves by pointing out flaws in the prosecution case. In general, an adversary system rewards parties who put arguments and evidence before the court.
However, this can include bad arguments and emotive but irrelevant evidence. This makes procedural decisions on what will or won’t be considered at trial very important. Flawed procedures might allow a rhetorical free-for-all or exclude informative advocacy.
The prosecution bears the burden of proving guilt beyond reasonable doubt. Discharging this burden means finding witnesses, taking photos of crime scenes, engaging forensic scientists, and so on. The prosecution normally has better investigative tools to do this work. Allocating the burden of proof in this way therefore helps to bring relevant evidence before the court.
Here are some things we could change:
Currently, evidence can be excluded for technical reasons. For example, evidence gathered in breach of a defendant’s rights is normally inadmissible at trial. So, there may be strong evidence of guilt, but the defendant may nonetheless be acquitted.
This is probably about recognizing (legal) rights, and eliminating reasons for prosecutors to breach rights. Much of the Anglo-American criminal law is about being fair to defendants—only convicting when the proper standard of proof is met by the proper means.
An alternative approach would be to allow such evidence at trial, and severely punish investigators who breach rights. This would avoid some technical acquittals where the evidence supports conviction. However, a reluctance to punish high-status investigators means this approach could just result in more breaches of rights.
Forensic investigations could be conducted by neutral groups. There could be certified investigators. Parties could pass questions and suggested lines of inquiry to these investigators. These investigators could be responsible for leading evidence—presenting a narrative of the relevant events via witnesses and physical evidence. Parties directly involved might then be able to cross-examine the investigators and their witnesses, to test the suggested narrative for flaws.
This would gain some impartiality in forensic investigation. Currently, forensic investigations are normally linked with the prosecution case, and are informed by the prosecution’s theory of what took place. With a suspect in mind, confirmation bias can skew the conduct of such investigations. Alternative explanations may be too readily rejected.
Imposing a third party between collection of evidence and arguments at trial could help to mitigate this risk. It could even out the forensic resources available to parties. However, it might decrease the speed and efficiency of investigations.
Too much fictional evidence to really judge… but I say extremely well, all things considered. Overt bribes seem to be at least discouraged. That’s a good start.
At least where they are allocating tasks among interested parties, Anglo-American trials seem relatively savvy about human nature.
Totally. “Advocate” rhetoric really gets on my nerves but there is no way I would trade it for fake neutrality. Where there is some low hanging fruit is in raising the bar on what rhetoric the advocates can get away with. That is, add logical fallacies and the most popular bullshit rhetorical gambits used in trials to the list of things that can be formally objected to. Many of these are objective enough to safely put in the hands of a judge.
“An alternative approach would be to allow such evidence at trial, and severely punish investigators who breach rights. … However, a reluctance to punish high-status investigators means this approach could just result in more breaches of rights.”
What if you allowed the convicted person to sue the investigators? That mitigates the reluctance to punish investigators—or at least, the reluctance to begin proceedings against the investigators.
The convict could sue to get X years deducted from his sentence, and the investigator would have to serve a percentage of X depending on the egregiousness of the breach.
This is probably about recognizing (legal) rights, and eliminating reasons for prosecutors to breach rights. Much of the Anglo-American criminal law is about being fair to defendants—only convicting when the proper standard of proof is met by the proper means.
An alternative approach would be to allow such evidence at trial, and severely punish investigators who breach rights. This would avoid some technical acquittals where the evidence supports conviction. However, a reluctance to punish high-status investigators means this approach could just result in more breaches of rights.
IIRC, the reason the exclusionary rule came about in the first place was because the previous system of suing police officers who introduced improper evidence didn’t work—it’s hard to do that when you’re imprisoned, and, as billswift pointed out, juries are reluctant to rule against police. In order to make this work you’d need much larger changes to the system to go along with it.
Riiight! Police who wrongfully kill are rarely even tried; do you really think there is any possibility that those conducting illegal searches or manufacturing evidence would be punished?
I’m currently researching the rationality of criminal trials, though my focus is on evidence law. The current adversarial system does have some advantages:
An adversary system creates incentives to bring information before the court. Parties want to win. In particular, the defendant has a direct interest in avoiding punishment. Defendants can help themselves by pointing out flaws in the prosecution case. In general, an adversary system rewards parties who put arguments and evidence before the court.
However, this can include bad arguments and emotive but irrelevant evidence. This makes procedural decisions on what will or won’t be considered at trial very important. Flawed procedures might allow a rhetorical free-for-all or exclude informative advocacy.
The prosecution bears the burden of proving guilt beyond reasonable doubt. Discharging this burden means finding witnesses, taking photos of crime scenes, engaging forensic scientists, and so on. The prosecution normally has better investigative tools to do this work. Allocating the burden of proof in this way therefore helps to bring relevant evidence before the court.
Here are some things we could change:
Currently, evidence can be excluded for technical reasons. For example, evidence gathered in breach of a defendant’s rights is normally inadmissible at trial. So, there may be strong evidence of guilt, but the defendant may nonetheless be acquitted.
This is probably about recognizing (legal) rights, and eliminating reasons for prosecutors to breach rights. Much of the Anglo-American criminal law is about being fair to defendants—only convicting when the proper standard of proof is met by the proper means.
An alternative approach would be to allow such evidence at trial, and severely punish investigators who breach rights. This would avoid some technical acquittals where the evidence supports conviction. However, a reluctance to punish high-status investigators means this approach could just result in more breaches of rights.
Forensic investigations could be conducted by neutral groups. There could be certified investigators. Parties could pass questions and suggested lines of inquiry to these investigators. These investigators could be responsible for leading evidence—presenting a narrative of the relevant events via witnesses and physical evidence. Parties directly involved might then be able to cross-examine the investigators and their witnesses, to test the suggested narrative for flaws.
This would gain some impartiality in forensic investigation. Currently, forensic investigations are normally linked with the prosecution case, and are informed by the prosecution’s theory of what took place. With a suspect in mind, confirmation bias can skew the conduct of such investigations. Alternative explanations may be too readily rejected.
Imposing a third party between collection of evidence and arguments at trial could help to mitigate this risk. It could even out the forensic resources available to parties. However, it might decrease the speed and efficiency of investigations.
Haha. Neutral groups. In a role that requires status, wields power and people have an enormous motivation to influence them. That is going to work.
Quite.
How well do we think judges do in this respect?
How well do we think the French system does in this respect?
At least where they are allocating tasks among interested parties, Anglo-American trials seem relatively savvy about human nature.
Too much fictional evidence to really judge… but I say extremely well, all things considered. Overt bribes seem to be at least discouraged. That’s a good start.
Totally. “Advocate” rhetoric really gets on my nerves but there is no way I would trade it for fake neutrality. Where there is some low hanging fruit is in raising the bar on what rhetoric the advocates can get away with. That is, add logical fallacies and the most popular bullshit rhetorical gambits used in trials to the list of things that can be formally objected to. Many of these are objective enough to safely put in the hands of a judge.
What if you allowed the convicted person to sue the investigators? That mitigates the reluctance to punish investigators—or at least, the reluctance to begin proceedings against the investigators.
The convict could sue to get X years deducted from his sentence, and the investigator would have to serve a percentage of X depending on the egregiousness of the breach.
IIRC, the reason the exclusionary rule came about in the first place was because the previous system of suing police officers who introduced improper evidence didn’t work—it’s hard to do that when you’re imprisoned, and, as billswift pointed out, juries are reluctant to rule against police. In order to make this work you’d need much larger changes to the system to go along with it.
Riiight! Police who wrongfully kill are rarely even tried; do you really think there is any possibility that those conducting illegal searches or manufacturing evidence would be punished?