Patterico's Pontifications

9/1/2006

A Radical Patterico Proposal: Doing Away With the Rules of Evidence (Or, Proof that Patterico Really Does Trust Juries)

Filed under: General — Patterico @ 8:26 am



There are some folks who think that I argue against jury nullification because I don’t trust jurors. Or because I have some vested interest in maintaining the system exactly as it exists.

Heh. They have no idea.

Maybe those folks will change their tune when they hear one of my pet ideas: doing away with the rules of evidence.

I say: let each side present anything they want. If it’s irrelevant, the jury will be insulted and punish the side presenting the irrelevant evidence. If it’s hearsay, or lacking in proof, the jury will discount it accordingly.

Under my proposal, in the Ed Rosenthal case, the jury would have been entitled to know that the defendant was growing marijuana plants for patients for medical purposes. Sure, it’s technically irrelevant to the charge, but hiding it from the jurors means that, once the trial is over, the jurors will feel like they’ve been lied to. That means they will be suspicious of the system in the future. And that hurts valid prosecutions.

We’d tell juries what the potential penalty is, how it compares with other cases, and how it’s decided. If a defendant were facing a draconian sentence if convicted for a minor offense, the jury will hear that. They’ll hear about it eventually. Tell them the truth beforehand so they don’t feel afterwards like they’ve been lied to.

But guess what? It cuts both ways — which is why defense attorneys would fight my proposal tooth and nail.

For example, the jury would get to hear about the defendant’s rap sheet, regardless of whether the defendant testified. Currently, that is considered prejudicial. Under my proposal, it’s always relevant. A defendant’s criminal history is always relevant to prosecutors — why not to jurors as well?

So if a defendant committed, say, first-degree murder with a gun in 1972, armed robbery in 1985, and has been to prison six times since for a collection of felonies, maybe the jury will understand why the law provides for (and the prosecution is seeking) a draconian sentence for a charge like possession of a gun by a felon.

Defendants also will not be able to pretend they might be facing draconian sentences when they’re really not. For example, defendants sometimes face only drug programs if convicted, but hope that jurors will suspect, quite incorrectly, that the defendant is facing a 25-to-life sentence. This strategy sometimes works. Because lawyers can’t discuss penalty or punishment, and jurors can’t consider it, jurors often conclude that a slam-dunk possession case is going to trial only because it’s a third-strike case. Defense attorneys love that, especially when the maximum punishment after trial is a drug program.

This sort of flim-flam operation would end under my proposal.

I’d retain the rule that juries are not to consider penalty or punishment in their deliberations. But since they sometimes do anyway, let’s at least give them evidence that will put their mind at ease.

If the defendant is a gang member, this would no longer be hidden from jurors. Currently, as a general rule, jurors do not learn about the defendant’s gang membership (unless there is a specific allegation that the crime was committed for the benefit of a criminal street gang — a technical allegation that cannot always be charged).

Under my proposal, jurors could learn that the defendant was on parole at the time of the crime — something that is typically hidden from them now.

Currently, jurors are almost never allowed to read police reports from the current case — and certainly not from other cases. Under my proposal, if the jurors want to read the police report — great! Here it is! Read it to your heart’s content. Once you do — and you look at a few police reports from other cases — you’ll see there’s nothing unusual or suspicious about this case.

That would help prosecutions.

Evidence seized in violation of the Fourth Amendment would be admissible. This would sharply reduce the possibility that police officers might testify falsely regarding probable cause. Similarly, all of the defendant’s statements would be admissible, regardless of compliance with Miranda. (I still think we would have to have a rule that involuntary confessions are inadmissible. But even without that rule, if the defendant can show a judge his confession was beaten out of him, he can probably show that to a jury as well, and the jury would rightly hold that against the police. Further, I would encourage the continued use of Miranda warnings with a rebuttable presumption that confessions are voluntary if Miranda warnings are given.)

The list goes on and on.

We’d have to change quite a few constitutional provisions and Supreme Court decisions to implement this fully. But the jury would no longer be kept in the dark about anything.

I think that’s how it should be.

And I think we’d get a lot more convictions if that’s how it truly was.

Frankly, in a huge majority of the criminal trials I’ve done, and that any criminal practitioner does, there are things hidden from the jury. In almost all such cases, the evidence is hidden from the jury’s view in order to protect the defendant. Yet when the jury thinks something is being hidden from them, they often blame the prosecution.

For example, cops see a bunch of guys standing on a street corner. They know they’ve arrested three gang members with guns on that block in the last month, and they recognize our defendant as a gang member. They figure he might have a concealed weapon, so they approach him to talk to him. (They’re allowed to do that, as long as they don’t issue orders to him.) They ask him if he’s on probation or parole, and he says he’s on parole for a previous conviction of being a felon in possession of a firearm. Because he’s on parole, the police can search him, so they do –and guess what? He has a concealed weapon. It turns out to be a match to a murder weapon used by other members of the same gang in a gang shooting.

Under current rules, you probably won’t hear about the recent gun arrests on the same block. You might never hear the defendant was in a gang. You probably won’t hear about the gun’s connection to another gang crime. You might never hear that the defendant was on parole. You certainly will never hear he is on parole for another gun case. So you’ll hear that police went to speak to him — and you’ll wonder why. Many jurors will conclude that the police approached the defendant because he’s black — therefore the cops must be racists.

This conclusion is harder to reach when you know all the facts. This is why prosecutors would love to be able to tell you about all the facts — so you don’t come to the wrong conclusion. But the system doesn’t trust jurors to properly use information such as the defendant’s gang status, or the fact that he was on parole. The system assumes jurors will convict automatically, as soon as they learn that the defendant is a gang member on parole. I don’t think that’s true. For example, when Michael Jackson’s past alleged molestations were ruled admissible, many said he was sunk, while I said that jurors would make up their minds based on the facts of the current case. I think jurors can take information like that for what it’s worth. But I do think it helps the prosecution when the jury gets to hear the whole picture.

Plus, it’s the truth. And it allows witnesses to tell “the truth, the whole truth, and nothing but the truth.” In the previous example, I wouldn’t have to instruct an officer, based upon a court ruling, as follows: OK, officer, you can say you approached the defendant, but don’t mention anything about his gang membership, or the other gun arrests you made, or about him being on parole. Officers follow these instructions, but I think such rulings from the court increase some officers’ contempt for the system, since they believe the jury isn’t getting to hear all the facts. And they’re right.

Again, jurors often suspect when something is being hidden from them. They just don’t know what it is. Let’s tell them everything, so that they don’t make incorrect assumptions.

I think doing away with the rules of evidence would result in better informed juries, less police perjury — and many, many more criminal convictions.

Any defense attorneys or prosecutors care to weigh in and agree or disagree?

P.S. If there are any defense attorneys or judges I work with who are reading this: don’t panic. I have my view about what the law ought to be, but I also recognize it for what it is — and I play by the rules. I might wish the rules to be different, but until they are, I’ll go with what we’ve got.

P.P.S. The most logical objection to this is that the lawyers could waste days with completely irrelevant evidence, like reading from the phone book.

One possible solution: give jurors the power to decide what they want to hear. Prosecutor says: my next witness is the victim of the crime. Do you want to hear from him? They can vote yes or no by a majority show of hands. Defense attorney says: I would like to read from the phone book for four days. Do you want to hear that? Again, jurors can vote yes or no by a show of hands. My guess: they’d vote to hear from the crime victim. They’d vote against the phone book, or the sixth cumulative witness.

87 Responses to “A Radical Patterico Proposal: Doing Away With the Rules of Evidence (Or, Proof that Patterico Really Does Trust Juries)”

  1. So how does full disclosure have any bearing on a jury judging the law itself and adjusting their verdict accordingly?

    Frank N Stein (38ff57)

  2. In this system what would discourage the police from violating the 4th amendment? I’m not worried about criminals. I’m worried about getting stopped and searched for no reason just because it’s a slow night for the police. Now they’re discouraged because if they don’t have probable cause it won’t be admitted.

    joe (066362)

  3. Private lawsuits. We could even streamline the process to make it similar to current motions to suppress — easily brought and litigated — with the remedy being punishment for the officer and not monetary reward for the plaintiff.

    Patterico (91fd36)

  4. Great ideas.

    Perhaps the 4th amendment litigation should be in the very same criminal trial with judges authorized to punish a copper who screwed up right then and there. Less complicated.

    BlacquesJacquesShellacques (83acf5)

  5. What you propose pretty much happened in the O.J. Simpson criminal case which went over six months and the verdict is considered a travesty by four out of five people who know about it. Contrast it to the civil case which (I believe) went for three weeks because the judge there scrupulously enforced the rules of evidence (such as demanding a good faith basis for a claim that the police planted evidence). How many six-month long trials can the system handle? What kind of jurors can sit for six months? Sorry, it’s a good idea in concept but impossible to implement. (And let’s not forget Milosevic’s trial at the Hague. How many years did that go on?)

    nk (2ab789)

  6. we can have both punishment for the officer and monetary reward for the plaintiff by getting the officer to pay money to the plaintiff, perhaps by forfeiting a chunk of his retirement.
    the first rule of evidence we get rid of is the collateral source rule in civil cases. plaintiff’s counsel should be able to engage in overtly insurance-hostile advocacy.

    assistant devil's advocate (22b11d)

  7. Do we need attorneys at all under such a proposal?

    Dana (3e4784)

  8. As for punishing the police for violating the Fourth Amendment, I think that is a very bad idea. Using your own example, even if the parolee with a gun is never convicted at least the gun was taken from him and he was prevented from committing a crime that day. It might not have happened if the police were afraid they would be punished for violating his Fourth Amendment rights. I think the “watchman” model for policing, in which by their presence the police prevent crimes, is much more socially useful than the “enforcement” model whereby the police are part of a machine which punishes crimes. Not my idea — I believe it was L.A.’s own O.W. Wilson who got major police departments to adopt it.

    nk (77d95e)

  9. Lawyers will always be needed to help marshal the evidence and get it efficiently in front of the court. Patterico’s proposal would make lawyers perhaps more essential as there would be a broader array of possible evidence to consider tendering to a jury. A layman could in theory do it but without practice and training it would likely be a procedural catastrophe.

    BlacquesJacquesShellacques (83acf5)

  10. Do we need attorneys at all under such a proposal?

    Yes, to give the defense eloquence, if nothing else. Some people just aren’t very good storytellers, let alone under the stress of being on trial.

    Pablo (efa871)

  11. As for punishing the police for violating the Fourth Amendment, I think that is a very bad idea….It might not have happened if the police were afraid they would be punished for violating his Fourth Amendment rights.

    Violating a person’s Constitutionally protected rights under the color of authority is against the law. Do we enforce the law or not?

    Pablo (efa871)

  12. I suggest expanding the rules of evidence, instead of abolishing them altogether. Give that a try first, and see if it remedies the problem.

    Bradley J. Fikes (f912b4)

  13. Sounds good to me, as a semi-interested bystander.
    I particularly favor replacing the exclusionary rule (protecting only the guilty) with a suitable process for punishing police misconduct (protecting guilty and innocent alike). Finding the right process is another matter… as is building confidence in the process among both the public and the police.

    Eric Wilner (3936fd)

  14. I agree with you as to the rules of evidence – to some extent. However, relevance would still be an issue, or else one party could simply filibuster the trial. Also, if you are going to go that route, I would make it much harder to strike a juror for anything but actual bias – so that juries don’t devolve into lowest common denominator.

    I would also go you one step further then your idea, and say get rid of juries altogether, or create a professional juror system (maybe retired people or some-such). Particularly on the civil litigation side, juries are more a hinderance to justice than a help.

    I would say that the opposite to “jury nullification” for criminal trials on the civil lit side is where the jury does not really feel a defendant is liable, but plaintiff’s injuries are so bad that they feel very sympathetic/sorry for plaintiff, and believe that defendant corporation or municipality has very deep pockets (or the jury assumes insurance with deep pockets) so award a large award to plaintiff regarless of liability. On the civil side, sympathy can be often trump a lot of evidence when it comes to jurors.

    Or, in other types of cases that are much too complex for an average juror (trademark, patten, complex business contracts, etc.). Why not have a professional jury that actually develops some expertise or rely on the judge who sees these cases regularly? At least then there would not be wildly divergent verdicts and awards for the same exact facts.

    On the civil side, without juries, outcomes would be much more predictable and rational, as would awards. thus, cases would settle much more efficiently then now.

    Of course, there is that pesky constitution to think of.

    – GB

    Great Banana (aa0c92)

  15. Eliminate? No, not exactly, or at least not entirely. Streamline? Hell yeah. But how about taking more of a ‘best practices’ approach where the judge truly advises (as opposed to directs) the jury on these issues. Could the jury direct the court to sanction attorneys for utter nonsense?

    ThomasD (21cdd1)

  16. Patterico —
    I’ve always felt that sometimes juries will convict in a very weak case because they assume that really good evidence of guilt exists but that they were prevented from seeing it. Do you think there is any truth in this?

    Joe —
    It is indeed important to try to stop police from performing improper searches. The current method works somewhat, but poorly, and harms completely innocent people. As long as this “harming of innocent people” thing doesn’t bother you too much, here is a much more effective way of punishing the policeman in question: we execute his first-born child.

    Everyone —
    Why exactly do we want to stop police from performing improper searches? If it is in order to make it easier for criminals to get away with their crimes, then we should continue to do exactly what we are doing.

    But if it is in order to make it less likely that innocent people get their privacy invaded and otherwise suffer at the hand of the State, then we would do things very differently. For one thing, the State would not be able to take my property merely on suspicion of a crime, using as an excuse: “well, we’re not charging you with anything”. For another thing, there would be a mechanism for the public to examine, at least in a statistical sense, the extent (or lack thereof) of improper searches; if there are few of them, then the law is working; if there are many of them, then there have to be political or legal remedies — all in order to protect innocent people.

    LTEC (00d1b6)

  17. Why exactly do we want to stop police from performing improper searches?

    Because they’re improper. If you don’t like the law, lobby to change it.

    Pablo (efa871)

  18. “Verdict first, trial after.”
    — The Red Queen

    mojo (8096f2)

  19. I prefer professional jurors … trained to evaluate the evidence fairly, to know when a lawyer is lying through his or her teeth, to know how to apply a rather nebulous standard like “beynod a reasonable doubt,” to be swayed by the evidence not emotions or whether or not they like or dislike a particular lawyer, plaintiff, defendent or judge

    of course it won’t happen

    quasimodo (edc74e)

  20. That is an entertaining, passionately argued piece. Has this sort of thing been tried? What kind of results has it had?

    My initial inclination is to oppose it, and this from someone who thinks the right against self-incrimination should be abolished. I think the rules of evidence are intended to stop the jury from wandering off the reservation, and to a great extent they do.

    I’m concerned that evidence of prior crimes will lead to an unacceptable number of errant convictions.

    I’m concerned that such evidence presented would create an atmosphere which encourages nullification.

    But it’s an interesting thought experiment for sure.

    One coda on the jury nullification deal: I disagree with Patterico on nullifying; I don’t think it’s *ever* appropriate, even if the law was morally reprehensible. If we were in the trial of State v. Potentially Jewish Guy, on trial for being Jewish, I’d tell the bailiff I’m off the jury. I could see extreme situations where I’d beg off the jury, or even refuse to adjudicate, but it can never be right to nullify.

    The societal situations where nullification are appropriate are far more dire than the ones likely to be present in the United States in my lifetime. If we get there, nullification will be a trivial issue.

    –JRM

    JRM (de6363)

  21. “One coda on the jury nullification deal: I disagree with Patterico on nullifying; I don’t think it’s *ever* appropriate, even if the law was morally reprehensible. If we were in the trial of State v. Potentially Jewish Guy, on trial for being Jewish, I’d tell the bailiff I’m off the jury. I could see extreme situations where I’d beg off the jury, or even refuse to adjudicate, but it can never be right to nullify.”

    I don’t even know how to wrap my head around this. You’d want to be off the jury, presumably because you find the charge and trial repugnant, but you wouldn’t be interested in having a part in dismissing the case (by using nullification to judge the law)? If the guy fries, he fries – I may not like it, but it’s the law? And I thought Scientology was a wacky religion….

    And here ladies and gentlemen, is how something like Endlösung der Judenfrage can happen.

    Frank N Stein (38ff57)

  22. Our vacationing host wrote:

    So if a defendant committed, say, first-degree murder with a gun in 1972, armed robbery in 1985, and has been to prison six times since for a collection of felonies, maybe the jury will understand why the law provides for (and the prosecution is seeking) a draconian sentence for a charge like possession of a gun by a felon.

    Actually, what the jury would understand is that the judges and parole boards who let such a man out of prison in the first place ought to be the ones in jail!

    Dana (3e4784)

  23. As a layman, I like Patterico’s proposal. If we trust the jury – and their very existence, as well as the legal acceptance of jn, says that we do – then why hide evidence from them?

    The presumption that they can be tainted in their judgement by hearing evidence, but a judge cannot, seems pretty arrogant to me. Let them have all the facts.

    Comments 12 & 13 sound like good, measured approaches to doing this, as does the first para of 14 (not letting a trial turn into a fb).

    ras (a646fc)

  24. Dana,

    Well, why don’t we base a parole board member’s pay on their performance, then?

    /off-topic discussion (cuz that’s not what this thread is about, but if Patterico wants to discuss parole on a subsequent thread someday, that’d probably be yet another interesting topic on his current hot streak, hint hint.)

    ras (a646fc)

  25. p.s. when did ideas morph into “thought experiments” anyway? An experiment requires empirical evidence. The term seems an oxymoron.

    Or am I being a pill?

    ras (a646fc)

  26. I find this proposal astonishing, especially coming from a prosecutor. It will, for example, make prosecuting rape cases virtually impossible when defendants bring up every damned aspect of the victim’s sexual history in order to smear his/her character. At that point I restrict my work to teaching because I want nothing to do with the sick, vicious circus that would result from abolishing all evidence law. It took centuries for that law to be developed, and it did not develop by accident or whim.

    Federal Dog (9afd6c)

  27. Even the rule against duplicative or repetitive evidence?

    actus (ad6756)

  28. Fed Dog,

    Frankly, if I were on a jury and saw that tactic being abused (as you describe), I would consider it a sign of a weak defence and it would affect my judgement accordingly.

    In other words, yes, if an accused rapist were resorting to bringing up irrelevant details from his accuser’s sexual past, I would be more likely to consider the defendant guilty. You don’t blow smoke, however sordid, unless that’s all you got left.

    But if the details were relevant, for example if it turns out that she had falsely accused several previous lovers of rape, then I would like to know that, too.

    Terrible thing to have your intimate details made public. Terrible thing to send an innocent person to prison, too.

    Per BJF’s comment #12 above, perhaps a more measured loosening of the rules is in order, step by step, lest we confuse “irrelevant” with “prejudicial.”

    ras (a646fc)

  29. actus—

    I’m with you. I cannot even imagine surviving the mountains of cumulative evidence almost certain to plague every trial event.

    Federal Dog (9afd6c)

  30. Two big thumbs up for that! Would simply allow the judge to retain discretion to push things along in case an attorney tries to get so sidetracked that it causes undue delay in the trial.

    Justin Levine (ee9fe2)

  31. ras–

    Such matters, if Patrick’s proposal were implemented, would virtually never get to trial. It’s hard enough to persuade rape victims to proceed against their attackers even with shield laws.

    Federal Dog (9afd6c)

  32. In #26 on 9/1/2006 @ 12:41 pm Federal Dog wrote:

    … It will, for example, make prosecuting rape cases virtually impossible when defendants bring up every damned aspect of the victim’s sexual history in order to smear his/her character. …It took centuries for that law to be developed, and it did not develop by accident or whim.

    I have heard, but it could be wrong, that the rules excluding evidence of a complaining witness’ sexual history in rape cases are a fairly recent development.

    Can you clarify whether you are objecting to “centuries” of development being discarded? Or are you objecting to recent developments being discarded? Or both?

    Occasional Reader (a7c26b)

  33. Occasional Reader–

    “… It will, for example, make prosecuting rape cases virtually impossible when defendants bring up every damned aspect of the victim’s sexual history in order to smear his/her character. …It took centuries for that law to be developed, and it did not develop by accident or whim.”

    Your second ellipsis here omits essential syntax: “all evidence law” (which is the language you omit) is what has been developed over the course of centuries, for excellent reasons. In response to your question, both.

    Federal Dog (9afd6c)

  34. My pet idea re Miranda: Put the warning on the back of everyone’s driver’s license or Social Security card. If he drives a car or is paid wages in this country, a defendant could no longer escape prosecution and conviction by claiming he was not properly Mirandized. It’s said that ignorance of the law is no defense; why should ignorance of basic constitutional rights be?

    Diffus (ead439)

  35. In #29 on 9/1/2006 @ 12:59 pm Federal Dog wrote:


    I cannot even imagine surviving the mountains of cumulative evidence almost certain to plague every trial event.

    I saw something like that happen in a civil trial. Bench trial with pro per plaintiff. Judge (and defense) was extremely lenient. Boxes of documents presented to the court, and almost three days of blindingly tedious and meaningless witness examination all entered on the record w/o defense objection except a couple for relevance on questions that were completely off the planet.

    A few minutes of defense witness examination followed by another big part of a day of plaintiff “cross-examining” defense witnesses.

    Judgment for defense. Plaintiff to pay court costs.

    So, from one data point, it looks like no harm done by throwing out the rules. Except for the monumental waste of time and defendant’s lawyer fees.

    Since the case made it to trial, the defense would have had to pay a lawyer even if plaintiff had been equipped with a lawyer and a functioning brain. But with a plaintiff’s lawyer the case probably wouldn’t have been filed.

    I think if a jury had heard the case they would have been sound asleep after the first hour, and would have rendered the same verdict, or possibly sentenced plaintiff to a lifetime of listening to Vogon poetry if they thought they could.

    Occasional Reader (a7c26b)

  36. “So, from one data point, it looks like no harm done by throwing out the rules. Except for the monumental waste of time and defendant’s lawyer fees.”

    Except for the soaking the taxpayers took, and whatever consequences this had for other docket matters pending in that court. I guess if you have the parties pay for everything, including the judge and all administrative costs, as well as for other tribunals in which legitimate suits may be speedily tried while such matters are dragging on forever in what courts we do have, perhaps there would be no harm. As things stand, however, taxpayers pay out billions and would fork out billions more were Patrick’s plan implemented.

    Federal Dog (9afd6c)

  37. Well, you’ve convinced me… that police, and perhaps many others, should properly refuse to take the oath to tell “the whole truth.” How can the standard oath continue to include such language, given modern rules of evidence?

    What would a judge do with a witness who said, “I’d love to take that oath, but we all know that the court is not interested in hearing the whole truth. I could explain this in detail, but for the fact that the court won’t allow me to tell the whole truth now either.”?

    DWPittelli (a38ee9)

  38. The comment from Federal Dog is coming from a defense lawyer, but it’s not a crazy point. It is difficult to persuade rape victims to testify. But relevant sex evidence is already admissible, and other evidence would certainly turn off the jury, as one commenter noted.

    Obviously the idea carries a lot of potential for abuse, and would probably require *some* safeguards. Perhaps offers of proof to the jury, and let them decide whether they want to hear it? But it’s fun to throw it out there as a no-holds-barred type of proposal.

    Patterico (91fd36)

  39. I think Patterico’s plan could work, but only if, instead of the judge’s job being excluding irrelevant or otherwise forbidden evidence, the judge were allowed to complain about it before the jury. And imagine the TV value of judicial language like:

    “What kind of crap is this? Do you have any real evidence, or are you all tapped out?”

    Of course, then we’d probably need SCOTUS to continue to define when and what a judge could say.

    DWPittelli (a38ee9)

  40. My pet idea re Miranda: Put the warning on the back of everyone’s driver’s license or Social Security card. If he drives a car or is paid wages in this country, a defendant could no longer escape prosecution and conviction by claiming he was not properly Mirandized. It’s said that ignorance of the law is no defense; why should ignorance of basic constitutional rights be?

    Under current law, it wouldn’t make any difference, which is one of the things that is so frustrating. A defendant could admit he knew his rights, but if he didn’t get read them and waive them, it doesn’t matter.

    Patterico (91fd36)

  41. “The comment from Federal Dog is coming from a defense lawyer, but it’s not a crazy point.”

    Ha! I guess some semblance of sanity yet lingers from my time as a prosecutor.

    Federal Dog (9afd6c)

  42. I’d be interested in how other prosecutors feel about this.

    I tinkered with the idea of having some check on the evidence, but decided against it, for purposes of my proposal. To be practical, there might have to be some check — but the second you implement one, you run the risk of lying to jurors.

    I like the “offer of proof to the jurors” thought I expressed above. How about that, FD?

    Patterico (91fd36)

  43. I think Patterico’s plan could work, but only if, instead of the judge’s job being excluding irrelevant or otherwise forbidden evidence, the judge were allowed to complain about it before the jury.

    There are already judges who make such complaints about relevant evidence.

    Patterico (91fd36)

  44. Next, let’s let the jury ask questions…

    Pablo (08e1e8)

  45. Some judges already allow that. I’m all for it.

    Patterico (91fd36)

  46. A problem I see with eliminating evidence is that it will allow prosecutors to win weak cases by demagogery, emphasizing the suffering of the victim (and the need to punish someone for it) and the badness of the defendant. If the jury knows that a man has a rap sheet it may be inclined to convict him because his earlier sentence was too short, or because his kind just generally need to be punished. Essentially a “jury nullification” in reverse.

    Also relaxation of the hearsay rules would essentially allow gossip to be introduced as evidence. Sure, the other side could point out that a witness doesn’t have personal knowledge of what she is testifying to, but the jury might easily miss that point as it reviews the evidence at trial.

    Sam (a9241c)

  47. In #36 On 9/1/2006 @ 1:30 pm Federal Dog wrote:

    Except for the soaking the taxpayers took,…

    Whether assessed court costs covered the actual costs I don’t know, but they included fees for courtroom rent, to pay judge, recorder, etc.

    … and whatever consequences this had for other docket matters pending in that court.

    Another kettle of worms, and somewhat imponderable. When he filed suit, the court waded through almost 100 pages of his pleading to find somewhere buried in it there was one issue the court could decide, if he could muster facts to support it. So the trial was on that issue. By the time it got to trial it had already taken up tons of court time.

    … As things stand, however, taxpayers pay out billions and would fork out billions more were Patrick’s plan implemented.

    Could they sell tickets to offset costs? The audience for Vogon poetry would turn out in droves.

    Occasional Reader (a7c26b)

  48. Patterico: You don’t really mean “doing away with the rules of evidence.”

    Can a lawyer or witness read the phone book day after day?

    Can he argue that the other party is black, or Jewish, or retarded and therefore should be convicted?

    Admit that you would retain some rules of evidence, then tell us what they are.

    TomHynes (c41bdd)

  49. So basicaly, Jurors of students, lawyers as instructors.

    Makes sense to me. Rather than putting blinders on the jury, they are being treated as a full part of the proceedings. Thats good.

    Wickedpinto (d099bd)

  50. Admit that you would retain some rules of evidence, then tell us what they are.

    I’m not Patterico, but I would leave in the stuff that is supposedly “prejudicial” such as a past conviction for a similar offence. If a defendant on trial for robbing a gas station has a history of such crimes, that’s evidence. Ditto if an accused rapist has a history of beating on women.

    If a terrorist convicted in another country of bombing airplanes (but for sake of arg, let’s say they can’t nab him in the US for some reason) were wandering thru La Guardia, would you want to let him on your plane? There’s no currently-admissible evidence that he plans anything criminal, just a history of similar past crime. Does that history make a difference to you as you prepare with your family to board? Should it?

    Is such evidence enough to convict in and of itself? Of course not, but how much weight to give it, if any, strikes me as a juror’s decision.

    ras (a646fc)

  51. You mention lawsuits without monetary damages as the “control” to stop law enforcement from violating the toothless ghost of what once was a 4th amendment (thanks, Scalia!).

    These lawsuits are supposedly easy to file and litigate (I do not have a legal background so I’ll take your word for it here). But, most people who have their 4th amendment rights violated by the police, at least at this moment in history, (read: poor minority groups) likely do not have the knowledge or capability to file such suits. That’s if they’re not too afraid to file in the first place, which most would be.

    I am confused by your logic– you admonish jury nullification, but you support this idea which would seemingly turn the judicial system into a free-for-all in which jurors are left to themselves to distinguish between relevant facts and, excuse my French, a huge pile of bull***t. It seems that would stimulate extreme bias on the part of the jurors, simply because there would be so much junk clogging their reason that they would have no other choice but to vote based on their opinions and not based on the facts of the case.

    Perhaps the Founding Fathers debated jury nullification themselves…..

    “The whole art of government consists in the art of being honest.”— Thomas Jefferson

    “Let no pleasure tempt thee, no profit allure thee, no ambition corrupt thee, no example sway thee, no persuasion move thee to do anything which thou knowest to be evil; so thou shalt live jollily, for a good conscience is a continual Christmas.” –Benjamin Franklin

    M V P (f46fd1)

  52. you support this idea which would seemingly turn the judicial system into a free-for-all in which jurors are left to themselves to distinguish between relevant facts and, excuse my French, a huge pile of bull***t . . .

    As opposed to the way it is now?

    Patterico (91fd36)

  53. It’s said that ignorance of the law is no defense; why should ignorance of basic constitutional rights be?

    Because rights are something everyone has, whether htey know it or not

    actus (ad6756)

  54. Can a lawyer or witness read the phone book day after day?

    See my P.P.S. to the post:

    The most logical objection to this is that the lawyers could waste days with completely irrelevant evidence, like reading from the phone book.

    One possible solution: give jurors the power to decide what they want to hear. Prosecutor says: my next witness is the victim of the crime. Do you want to hear from him? They can vote yes or no by a majority show of hands. Defense attorney says: I would like to read from the phone book for four days. Do you want to hear that? Again, jurors can vote yes or no by a show of hands. My guess: they’d vote to hear from the crime victim. They’d vote against the phone book, or the sixth cumulative witness.

    How about that?

    Can he argue that the other party is black, or Jewish, or retarded and therefore should be convicted?

    Sure. The jury would love that argument, huh?

    Patterico (91fd36)

  55. I was going to make exactly the point that Federal Dog made in #26 above. What of the rape victims? Or, is that just a price women will have to pay to make it easier to convict people for other more important crimes?

    And, what about complainants in other cases? In a domestic assault case, is the complainant’s past history with D, including the times she stabbed him or assaulted his new paramour, relevant and admissible?

    What about C’s felony convictions? Are they fair game as well? Does the jury get to know what types of deals were brokered by teh DA’s office with co-D’s in order to get them to testify against D?

    I agree with the comments above re: the unnecessary reams of evidence that will be before the jury. WHo’s going to pay for the extensively long trials, anyway?

    It’s a bad idea. And pure fiction, in any event. It’ll never happen. Interesting intellectual fodder, though.

    Nicole Black (442f8f)

  56. I should have placed “important” in quotes in my above comment. It was a facetious comment.

    Nicole Black (442f8f)

  57. It’s said that ignorance of the law is no defense; why should ignorance of basic constitutional rights be?

    Because rights are something everyone has, whether htey know it or not

    Comment by actus — 9/1/2006 @ 4:03 pm

    As opposed to ignorance, which actus knows he has. His comment completely misses the point (as usual) that the information would be readily available to any reasonable person. Then, the burden of proof would be on the defendent as to why they weren’t aware of their right to remain silent. This is the type of loophole that should have been closed years ago.

    Stashiu3 (0da7ed)

  58. Patterico,

    I would loosen the evidence laws substantially, but not as completely as you are proposing. I am less worried about prejudicing a jury, but rather about harm done to witnesses and victims.

    1. Rape Shield – the unrelated sexual history of a rape victim serves no probative value

    2. I would INCLUDE evidence obtained by “illegal” searches, particularly if the searcher was acting in good faith. There should be a way to keep the lines without losing the evidence.

    3. I would only allow criminal history if it is directly relevant. In your example, history of what the defendant has done with guns is relevant to the charge of gun possession.

    4. I would curtail sentence mandates, and give juries more power with respect to sentencing.

    Also, in the example you cite about the gun arrest on the street corner, why wouldn’t the connection of the gun to other crimes be admitted?

    Thanks.

    tomjedrz (562284)

  59. IN #54 on 9/1/2006 @ 4:07 pm Patterico wrote:

    One possible solution: give jurors the power to decide what they want to hear. Prosecutor says: my next witness is the victim of the crime. Do you want to hear from him? They can vote yes or no by a majority show of hands…[for reference to the full point, elided for space]

    This is where the judge might fulfill the role that “nullifiers” often describe: giving non-binding advice on the law to the jury.

    At an appropriate point, the judge might say: I have decided as a matter of law you have heard sufficient evidence that would, if you find it credible and uncontradicted by other evidence, establish fact X which you will be called upon to decide. You may hear further evidence if you wish. Do you wish to hear further evidence from the party bearing on fact X?

    Similarly, for contradictory evidence: I have found this is sufficient, if you find it credible and persuasive, to negate fact X… Do you wish to hear further evidence from the party bearing on fact X?

    Also, for relevance: I have found as a matter of law that the evidence you are about to see/hear is irrelevant to the facts you will be asked to decide. You may hear it if you wish, or not. I will implore you not to consider it in your deliberations if you hear/see it, but I cannot prevent you from knowing it.

    If such advisements were mandatory, and based on the “old” rules of evidence, maybe the jury would get a good sense of what the rules were really about. If a juror had the belief that under the “old” rules the courts had been intentionally keeping them in the dark to achieve a particular result, then the advisement might disabuse them of that belief. Although, in some cases it might persuade them their beliefs were true.

    It’s not unreasonable to think both prosecution and defense would become much more thoughtful and circumspect than under present rules about the evidence they offer. Once a jury says “enough” with advice from the judge, it’s a fair sign that they might become hostile if offered more cumulative or irrelevant evidence bearing on the same alleged fact.

    Occasional Reader (a7c26b)

  60. I lawyers, and judges want to have absolute control of the information, and the definition of how the information should be used, then there is no reason to have a jury. Just hier someone to make a computer programer to create a complicated formula with a gigantic questionaire of yes and no questions, and then have the computer make the decision.

    Much of the current process removes the jury from actual participation of the process. Loosening, to some significant degree, not minor, the rules of evidence, then the jury becomes more a part of the process. Specially since, I believe, the jury is supposed to be the heart of the process, yet they are treated as nothing more than magic 8-balls who are shaken and read at the very end.

    Wickedpinto (d099bd)

  61. I’m ashamed to say that my first thought was that no trial would ever go to the jury ….

    I think that there would be more of the “truely innocent” convicted under the proposed rules, because it seams so much easier to paint someone as guilty than it is to show that they did not do something, expecially if the victim can be painted as innocent themselves.

    htom (412a17)

  62. How about taking the first 15 names on the jury list, ask them if they want to serve? Make it up to them. You could probably empanel a jury in about 20-min. And, the jury should be allowed to ask questions. After all, it is their decision to make as to the fate of the defendant. A trial should be a search for the truth, and justice.

    Another Drew (8018ee)

  63. It’s not a new proposal. Tax protesters came up with the idea many years ago to allow the introduction of all evidence. I am all for the idea, except where the Constitution prevents introduction of evidence (e.g., a coerced confession).

    If the juries know what I (and others) know about the police, convictions for crime would be a lot less, if there were no restrictions about what can be brought up about what the police do. E.g., in an old North Dakota case, the police (and others) tied an Indian man to a telephone pole (North Dakota’s state tree), hooked him to an ambulance and threatened to pull him apart so he would confess to a rape. (I believe the name of the case was Malnouri v. Whitehead and the case was in the North Dakota Supreme Court.)

    Daniel Quackenbush (45af70)

  64. His comment completely misses the point (as usual) that the information would be readily available to any reasonable person.

    But even the unreasonable have rights. Reasonable people don’t commit crimes and get arrested and need their criminal procedure rights. Not as the law recognizes ‘reasonableness.’

    This is the type of loophole that should have been closed years ago.

    Rights are something the government can’t violate. Thats not a bug, but a feature of the whole damn thing.

    actus (ad6756)

  65. Civil suites are a decent method to my mind. But, here’s what I’d like to see (since we’re making a new system out of whole cloth.)
    The cop is personally responsible.
    The people representative (i.e persecutor) is also personally responsible.
    The state (country, state, federal gov.) is also on the line.
    And there is NO ability of any sort of to immunize these people from the suite.

    Joe (3406ee)

  66. If evidence is improperly included, the defendant can claim the trial was unfair… does that make it a right that could potentially be waived?

    Daryl Herbert (4ecd4c)

  67. The primary limitation on evidence under a proposal like this should be relevence as determined by the judge using a liberal standard. As such, he could decide that a woman who was raped wouldn’t be subjected to an appearance by guys she slept with 15 years ago…unless she’s accused him of rape or violence. Also, there would be no reading of phone books.

    Any exclusion of evidence could be the basis for appeal. A successful appeal on those grounds would first require the appellate court to find that excluded evidence was relevant and could have affected the outcome of the case.

    In a domestic assault case, is the complainant’s past history with D, including the times she stabbed him or assaulted his new paramour, relevant and admissible?

    Absoultely, as is the disposition of her criminal charges in those matters, in the odd event that she’d actually been prosecuted for them. There’s at least assault with a deadly weapon in there, isn’t there?

    Pablo (08e1e8)

  68. This would be interesting. Given the potential for a free-for-all in the courtroom, if I were a criminal defense lawyer, I’d tell my clients to a) refuse to plea bargain, and b) demand a speedy trial. If the bulk of my clients were charged with drug crimes, I suspect the prosecutors would go nuts. If 20%-25% of all those charged with drug crimes did this, the system would collapse. Jury nullification wouldn’t be needed, and the drug laws would have to be revisited by the legislatures/Congress. No victim. No crime.

    mitch (55069c)

  69. Letting Jurors Decide on Evidence Admission by Show of Hands

    At the end of his case, the prosecuter says: “I have shown that the guy is a lying scumbag. Letting him put on a defense is a waste of everyone’s time. Just vote no on everything he wants to introduce and we can be out of here by lunch”.

    On the other side, how much DNA evidence would the O.J. jury have listened to, especially after Cochran showed that it was all tainted?

    TomHynes (c41bdd)

  70. Yeah. They might have acquitted!

    Juries always want to hear the defendant’s defense.

    Don’t you trust juries?

    Patterico (91fd36)

  71. In #69 on 9/2/2006 @ 10:20 am TomHynes wrote:

    At the end of his case, the prosecuter says: “I have shown that the guy is a lying scumbag. Letting him put on a defense is a waste of everyone’s time. Just vote no on everything he wants to introduce and we can be out of here by lunch”.

    Assuming that some other rule doesn’t forbid the lawyers to make such requests of the jury, there is still a saving grace inherent in Patterico’s proposal.

    Under the current rules, each partiy asks the judge, out of the presence of the jury, to exclude or include various evidence. One person, the judge, makes that decision. Of course it is appealable, so that other judges may have the final say. But initially at trial it is only one person’s decision.

    But if a lawyer requests a jury to exclude a piece of evidence, the decision is made by twelve people, not one. The saving grace is that it is usually more difficult to convince twelve people to do something than to convince only one. So by some measure such requests would be less likely to succeed than under the current rules.

    Occasional Reader (c0d4f3)

  72. 64. Comment by actus — 9/1/2006 @ 8:29 pm

    And again, you pick a single word that you can focus your misinterpretation on. Ok, strike the word reasonable… if someone/anyone could show that they weren’t aware that they could keep their mouth shut until talking to a lawyer, then they might have a point. But, someone who is fully aware of their rights getting a free pass because someone didn’t read a card out loud, in their language, enunciating properly, etc… is not justice. Isn’t that the point of the law?

    As far as your last statement, it is also nonsense. Of course the government can violate rights. If someone commits a crime, don’t they get locked up? This violates their right to liberty. Sometimes the rights of the state supercedes the rights of the individual, in the interest of the people, based on the individuals behavior. I don’t believe the people’s interest is served by letting criminals walk on a technical loophole. Unlike you, I assume a good-faith intent on the part of the state until there is evidence to the contrary.

    Stashiu3 (0da7ed)

  73. “So if a defendant committed, say, first-degree murder with a gun in 1972, armed robbery in 1985″

    Why is he on the street, again, to begin with.

    In NY it might be because they needed his cell to house someone who got popped selling his third ounce of pot, but that’s another blog.

    Gbear (c22f1c)

  74. I meant to include this in my last post:
    I like numbers 4 and 15.

    Gbear (c22f1c)

  75. I can understand how it could save all involved a great deal of time (although the defense would still have to prepare) if the jury was to hold some kind of secret vote after the prosecution rested; “not guilty” would save the presentation of the defense case.

    htom (412a17)

  76. If no reasonable jury could convict, the judge doesn’t even let the case go to the jury.

    That rarely happens.

    Patterico (91fd36)

  77. But under your system, it should never happen. Who is some judge to foreclose the jury from deciding whether it is or isn’t reasonable to convict the guy? Don’t you trust juries?

    Xrlq (1fd2ef)

  78. And again, you pick a single word that you can focus your misinterpretation on.

    Well you obviously intended reasonable to be in there. I pointed out you shouldn’t limit yourself to them.

    Of course the government can violate rights. If someone commits a crime, don’t they get locked up?

    You think that violates rights? you have rights to be free from unreasonable seizures. Putting a convicted criminal in jail is a reasonable seizure.

    actus (e21271)

  79. actus, I said:

    Of course the government can violate rights. If someone commits a crime, don’t they get locked up? This violates their right to liberty.

    I didn’t say reasonable seizure. The right to liberty was taken by the government and you stated:

    Rights are something the government can’t violate. Thats not a bug, but a feature of the whole damn thing.

    You’re wrong, again… but you’ll never admit it, so get your last word in so you can pretend you made a point. One of these days I will learn not to feed the actus.

    Stashiu3 (404f9e)

  80. 1. The jury pool shall be drawn from those with personal telephones of any kind.

    2. The only allowed excuse from jury duty shall be medical. This including mental disorder and advanced age.

    3. Those in the jury pool alone shall have the right to recommend the expulsion of anyone from the jury pool. This recommendation to be approved or disapproved by a judicial panel.

    4. The first 18 names (12 jurors and 6 alternates) on the jury pool list shall serve on the jury for any case. The jurors alone shall have the right to boot any one from the jury.

    5. The jury shall have the right to question witnesses, attorneys, and the presiding judge.

    6. The jury shall have the right to dismiss a judge for conduct unbecoming an officer of the court.

    7. The jury shall hear all evidence for or against a defendent. Regardless of the assesment by the police, the prosecution, the defense, or the presiding judge regarding said evidence.

    8. The prosecution shall testify regarding why they think the defendent is responsible for the crime.

    9. The defense shall testify regarding why they think the defendent is not responsible for the crime.

    10. The jury shall have the right to charge any officer of the court with perjury should they have reasonable cause to believe said officer of the court has lied concerning the defendent.

    The proposals above were composed to piss certain parties off. Mainly those who see nothing wrong with how things are done now, and see no need for correction. These proposals are being made to afflict the comfortable.

    Alan Kellogg (2fa0c0)

  81. I didn’t say reasonable seizure.

    I know. I did. I actually went and found a right in the constitution that might apply.

    The right to liberty was taken by the government and you stated:

    The constitution doesn’t give you right to liberty. It gives you a right not to have your liberty taken away without due process. So putting people in jail does not take away what the constitution guarantees if done according to due process.

    You’re wrong, again

    I’m sorry, but i’m correct when I say the government can’t violate rights.

    actus (7e5d83)

  82. Re #80:
    Good on Yah, Alan. But, the system would never give up that much power to the “great un-washed” without a severe struggle.

    Another Drew (758608)

  83. The proposals above were composed to piss certain parties off. Mainly those who see nothing wrong with how things are done now, and see no need for correction. These proposals are being made to afflict the comfortable.

    Why telephones? And can judges or lawyers serve on juries? What about those with interest in the case?

    actus (7e5d83)

  84. ras asked:

    Dana,

    Well, why don’t we base a parole board member’s pay on their performance, then?

    Better yet, why don’t we just abolish them completely?

    When George Allen was running for Governor of Virginia, he proposed an end to early parole. At the time, a felon in Virginia could be released after serving a whopping one-sixth of his sentence. By the time Mr Allen was done, the average was 85% of sentenced time was served. (I’m working from memory on this one.)

    I have always believed that time sentenced should be time served, period. I would be willing to entertain the notion of parole for a first offender, as long as more than half of his sentence had been served, but that’s about it.

    Dana (1d5902)

  85. Actus,

    Once summoned to the jury pool you are now a juror. Therefor you wouldn’t be working the case.

    Why telephones? Change that bit to read, “Anyone with a telephone directory listing, public or private, shall be eligible for jury duty.” That way you expand the pool of potential jurors beyond those who register to vote.

    BTW, Attorneys and judges would be eligible to serve as a juror. As would those with a vested interest in the case.

    I would also give the presiding judge the right to remove any attorney who, in the judge’s considered opinion, is an incompetent ass. Any attorney removed for incompetence will refund any moneys paid him for his work on a case.

    I have more ideas, but they can wait for later.

    Alan Kellogg (fb97f0)

  86. BTW, Attorneys and judges would be eligible to serve as a juror. As would those with a vested interest in the case.

    Is a conflict of interest ok in judges? Why is it ok in jurors? So can I serve in the jury on a case where I am the plaintiff? where my employer is? my brother or sister, or parent I’m going to inherit from?

    actus (6234ee)

  87. Give ’em hell, Alan

    mitch (55069c)


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