← Wheel in the Sky
Gay genes →
Non-replicating lawyers
Posted on September 17, 2019	by gcochran9
If the replication crisis ever rears its head in the courtroom, there will be hell to pay. Many kinds of routinely used evidence and testimony are utter trash.
103 Responses to Non-replicating lawyers
magusjanus says:
You're telling me "if the glove doesn't fit, you must acquit" wasn't a tight conclusive argument?
It was a good argument. An attorney is more concerned with persuading a jury than proving something.
Those are two different things.
You could put up Euclid's demonstration of the Pythagorean Theorem, a beautiful proof, and still not convince a jury it was true.
That said, the prosecution was incompetent from the beginning in the OJ trial. Clips from the trial are sometimes used in continuing legal education seminars to show what not to do in a trial.
The OJ case was interesting in a way people rarely mention: it's completely clear OJ was both guilty and framed; some of the blood evidence was absurdly obviously planted.
Which is the case for the majority of frame jobs, something people don't understand because it's not a trope in fictional drama. That Netflix "mystery" was the same story. People apparently have a hard time wrapping their heads around guilty people being framed.
I am not sure he was framed. It wasn't necessary. There was a lot of evidence against him, so much that Marcia Clark failed to use important elements of it. I watched the trial and have read the accounts of Clark, Furhman, and Bugliosi and I think the state lost with their first major decision, they moved the trial from where the crime occurred to downtown LA for political and racial reasons. They wanted more blacks on the jury, and they got them. They also got a double trial, OJ and the LA police department. OJ won and the police department lost, probably because of jury nullification. That jury was unwilling to convict a black man when they were pissed off with the police department. Of course, the prosecution fumbled badly throughout the trial but I don't think a stellar performance would have changed the verdict after the decision to move the trial downtowm.
It wasn't necessary but it may have been standard practice for some people in the LAPD.
This is consistent with stuff I've heard from a friend of mine who is a criminal defense attorney–the cops and prosecutors are evil and sometimes corrupt, and her clients are utter dirtbags who are usually guilty of something (maybe not exactly what they're charged with) and also generally dumb as a brick.
Many prosecutors that managed to put people away for being Satantic child molesters were reluctant to ever let them out again when people realized it was all madness.
Thersites says:
"O.J. Was both guilty and framed…"
If the prosecutors had exhibited minimal competence at their jobs and asked the detectives if they were aware of section 128 of the California penal code when they had investigated the case, nobody would believe this nonsense.
The court system works only because (a) many criminals are stupid and reckless, and (b) – and here I'm just guessing – many jurors probably assume that if the defendant happens not to have committed the crime in question it doesn't matter if he's found guilty because there will be plenty of other crimes he's committed and got off with.
I had a friend who had been a criminal barrister for several years. He eventually gave up the career in disgust saying that his every defendant had undoubtedly committed the crime he was charged with, with only one exception. The exception was a chap who might or might not have committed the crime – he had been present at the affray but might perhaps have been an onlooker rather than a participant. In other words he might have suffered from mistaken identity.
Chicago has a clearance rate of less than 20% for homicides so it doesn't seem like the justice system is working. Maybe Chicago has very smart criminals.
On the bright side, Chicago is operating like a self-cleaning oven.
Ledford Ledford says:
You'll need a new word. "Non-replicating" won't work for juries. "Fake" is probably too much for judges.
Unverified? Unproven? Groundless?
Given current trends in K – 22 education, "problematic" or "controversial" might work best.
The National Academy of Sciences did a big report on the quality of evidence used in courts awhile back. Quite a bit of stuff that's widely used is basically an educated guess; some is on a par with using a magic 8-ball to decide whodunnit. Also, eyewitness testimony isn't very reliable, people often get mis-identified by their victims, and in general, the criminal justice system just barely works.
Probably the main thing that saves us from disaster here is that the police have a pretty good idea who's up to no good, and so mostly manage to arrest people who are involved in a lot of crime. Also, the cops do a lot of pattern-matching–when X happens, it's usually Y who dunnit. But if your ex-wife dies mysteriously six months after the divorce, you're going to want to get a good lawyer, because the cops are going to start with the assumption it was you. And if some random stranger kills you for no reason, the cops are going to have a hell of a time figuring out who is to blame.
Once I tried to work out how many people I might be guilty of killing given the test of "motive, means, & opportunity"
It was a lot
Okay, that was funny, and I'm going to start my own list on that.
Arson forensics seems to be especially fraught, but a lot of it seems shaky, like blood-splatter analysis, bullet trajectories, fiber matching, and, probably most prominently, eye-witness identification.
Andrew Oh-Willeke says:
"Eye-witness identification" is an area where expert testimony regarding just how inaccurate that evidence is should be presented to juries far more often. This is one of the top four or five sources of wrongful convictions for serious offenses.
Steven E. Sailer says:
In general, criminology doesn't attract the intellectual creme de la creme.
Alex Kozinski had a great article going over how much evidence and "expert" analysis is complete bullshit.
Arson analysis, handwriting experts, drug-sniffing dogs. All nonsense. But it's even worse than a cynic might think: even a lot of fingerprint evidence is trash
Nick Patterson says:
As I understand, the FBI has never carried out a double blind experiment of fingerprint evidence, probably because they are scared of what the results would be. And let's not
mention the cases of outright fraud at forensic labs.
There was a guy who on his return to the US was arrested based on fingerprint evidence. He had been overseas for a year, including during the crime in question. He eventually got off but it was amazing how stubborn the cops were.
The famous case here was an American lawyer whose fingerprints were a partial match for one of the Madrid bombers' fingerprints. I think he was in jail until the Spanish police found the actual owner of those fingerprints and informed the FBI of it.
Drug sniffing dogs work. But they are a tool not a witness or investigator. They are no better than the man working with them. Handwriting analysis is not so useful.
Turns out drug-sniffing dogs react not to the presence of drugs, but to the handler's expectations of whether drugs are present. One test found the dogs were wrong 70% of the time, but that they responded to where the handler was looking nearly 100% of the time.
And I, as a professional dog trainer from before the cookie-and-clicker-training era, consider how the hell trainers of drug-sniffing dogs could miss this. Dogs with enough desire to please to be trainable to complex tasks are all about reading human expectations. But drug sniffers are trained by rewards-for-results, rather than work as its own reward (as we do with retrievers) so it's really no wonder — any behavior you reward, you get more of.
Canine confirmation bias?
Yes. The point of drug-sniffing dogs is not to sniff drugs but to get around the US Constitution.
They'll ask someone if they can search his vehicle and if he's smart enough to refuse they call in the canine unit to give "probable cause" to open the trunk.
I'm struck by the lack of new breeds of dogs. In 1850 if the government needed drug sniffing dogs, by 1875 there'd be a new breed of them that really were better than average.
Nowadays, though, few develop new breeds for new roles.
gregkai says:
I heard that (reacting to hints from owner, not the smell of drugs) and find it strange. Long ago when we had a family dog, a game my brother and I did was hide and seek, where we let the dog smell something (we tried with food and pot), put him in a closed room, and hide the stuff in our garden or inside. Not only the dog did love this game, got into it with barely any training, but he found the stuff allmost all the time, and quite quickly. We made it a little bit more difficult by not hiding it directly but walk a little bit everywhere, passing the stuff between us before hinding it, and continue walking a little while after.
The dog may have been reacting to us getting excited, but I doubt it: not only we used our best poker faces, but sometimes one of us did the hiding, the other was following the dog without knowning the hiding place…no difference for the dog.
So yes, dogs can smell better than us (surprise!), and are really into finding stuff by smell…Our particular dog (a bouvier des flandres) for sure was.
As long as the drug can be smelled (we didn't try fancy airtight boxes and/or masking by strong odors), my prior is that drug-sniffing dogs works as advertised….and training for the dogs is probably more along not to get overexcited doing their favorite game than learning a job…
You don't get to have a "prior" when this issue has been studied.
Lord, people in this thread are being annoying.
"Gee golly, I can imagine a universe where handwriting analysis is real."
No shit? We can all imagine how this fake evidence is supposed to work, logically.
But in the real world the dogs are used to gin up probable cause, not actually sniff out anything.
NonLinear9 says:
Huh? Of course there's a prior. There's always a prior — even if it's uninformed.
Many people have experience being around and working with dogs, so their prior is somewhat informed. If you have evidence that should condition that prior (I don't doubt that such may exist), please present it.
That may go far in reducing your annoyance level.
Greg kai says:
You know, having first hand experience cary a lot of weight, and I am not sure how many scientific papers telling me sniff dogs do not actually detect drugs by smell could change my opinion they do. I did my own experiment, and saw my dog find pot he and myself didn't know where it was hidden. My own eyes beat those of other, regardless their citations index or titles.
if you have more specific info, like how sniffing dogs are defeated by airtight containers, coffee masking or can smell only a subset of drugs, fair enough, I would be happy to hear it. Else, welcome to flat earth and everybody can win the field medal sudying hard enough category.
One of the big findings of the NAS report was that there are a lot of kinds of evidence that are plausible and probably have some kind of value, but that have never been subjected to any kind of careful neutral testing to see whether they work. I don't know if drug dogs are in this category, but a lot of stuff (matching shoeprints, ballistics evidence) is.
Imagine if medicine worked like law. Basically each time a doctor had some idea about a possible treatment that might cure disease X, he'd argue the claim in front of a senior doctor, and if he convinced the doctor, then the cure would be accepted as valid. If we did that, we'd basically have no idea what worked and what didn't for any treatments whose effects were subtle. (That is, we'd all know that antibiotics worked for bacterial infections and prednisone worked for inflamation, but we wouldn't really know whether radical mastectomy was a good way to treat breast cancer.).
Reliability isn't an all or nothing thing. In most cases accepted forensic methods aren't truly "nonsense" but have much higher margins of error (both false positive and false negative) than is commonly acknowledged.
Fingerprint evidence, for example, can reliably rule out lots of suspects in many cases, but a partial fingerprint can inaccurately point to someone as a suspect more often than is commonly understood. If the evidence has a clear whorl type fingerprint and the suspect has loop type fingerprints, for example, that is powerful exonerating evidence.
Similarly, handwriting analysis is not very precise. But that doesn't mean that it isn't possible to use handwriting to rule out that a signature is authentic in cases where someone has a very consistent signature, hasn't suffered a stroke or a hand injury or something like Parkinson's disease, and the signature in question isn't remotely similar. It isn't nearly as good in close cases as claimed, but it isn't entirely worthless.
Peter Connor says:
Ballistic evidence sounds scientific, but is frequently nonsense, and the FBI Crime Lab has been caught faking it…
David Chamberlin says:
I am trying to think of the worst science there could possibly be. Political science is really bad but a legal scientist would be worse. Maybe a porn scientist, we will name him a pervertologist. This joker has a long test that asks a bunch of dirty questions and the results tell you what perversion is right for you.
Then he trains the bored spouse to cater to those perversions and the zip is put back into a humdrum sex life.
uh……no thanks
but sex sells
there is a sucker born every minute and some of them come back twice
How about shaken baby syndrome, or crack babies, or recovered memories of ritual satanic abuse? All allegedly science, but as best I can tell the first is probably ambiguous and the second two were bullshit. Which didn't keep people from getting their lives wrecked, losing their kids, or going to prison.
I remember reading that some of the bite mark experts whose testimony had been used in capital cases could not reliably distinguish human from animal bites in a blind trial.
Indeed. Peter Neufeld gave a talk to the genetics Colloquium at our university and it was eye-opening to say the least. If anyone's interested, the "President's Council of Advisors on
Science and Technology" (said council comprised of some scientific heavy-hitters, though based on his comments here: https://liorpachter.wordpress.com/2015/05/26/pachters-p-value-prize/ I'm tempted to remove Eric Lander from that category) submitted a report evaluating the current state of scientific validity for 7 common forensic techniques, available here: https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf
Woof says:
Who needs evidence? Nail the defendant with 87 charges, threaten them with a mandatory minimum of 120 years and offer them a plea deal of time served and a year of probation. Even the innocent will take that deal rather than bankrupt their family with legal fees and risk life in prison.
"With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source."
And an acquaintance who worked in a DNA lab said that wasn't so reliable either, that it was more like reasonably-consistent guesswork. Been a few years and sequencing has improved, but to be sure of ID you really need the whole genome, not a set of markers.
Seems to me most (all?) of these forensics can rule out, but they can't rule in.
"I had a friend who had been a criminal barrister for several years. He eventually gave up the career in disgust saying that his every defendant had undoubtedly committed the crime he was charged with, with only one exception."
It is a common misconception that the primary job of a criminal barrister is to prevent innocent people from being found guilty of crimes. This is a part of the job, but a pretty minor one. The primary job of a criminal barrister is to secure the best possible outcome for someone who in the vast majority of cases committed some crime. Sometimes this involves battles over whether the prosecutor's charge accurately reflects the criminal conduct that occurred. Sometimes this involves efforts to help a criminal defendant put his best foot forward in sentencing proceedings after a guilty verdict or a guilty plea. The latter is especially important because there is broad latitude for judges in sentencing even in fairly structured sentencing regimes, so a lot of the job involves convincing judges that your client is not irredeemably bad, is suited to rehabilitation, and is suitable to alternatives to incarceration where possible. Many headline making cases involve someone who is convicted but gets an especially lenient sentence, which is what it is the job of a criminal barrister to secure for a client. Even details that are almost invisible to the general public and policy makers, like influencing which particular facility a defendant serves a sentence at can make a profound difference to the defendant.
" secure the best possible outcome" – I know that, but why should I want anyone to do that? An uncle of mine graduated from law school, realized this, and refused to practice.
If we were interested in optimal outcomes – well, the first thing we do ..
You'd prefer Judge Dredd?
I am surprised your uncle graduated from law school before he realized that somewhere north of 90% of those charged are guilty. It is not a secret in the legal community. In any event, if your uncle was truly upset about criminal defendants he could have become a prosecutor or he could have gone into civil law which is more of an intellectual challenge and, often, more lucrative. I suspect he had other reasons for not practicing law.
One of the reasons for having defense counsel is that the state always has more power and more resources than the defense and those can be abused in ways that make even the innocent unsafe. The need for the right to counsel matured during the Glorious Revolution (we didn't invent it) because the abuses against those charged who had no counsel became intolerable.
If the state has a good case for prosecution and the case is competently managed it will win. If not, the state should lose and do a better job next time.
Not saying you're lying or even necessarily wrong, but what does "because the abuses against those charged who had no counsel became intolerable" mean? To me it sounds like the typical post-hoc rationalizations that textbooks sell to rubes about liberal democracy, things like "it was the will of the people", "popular opinion demanded politicians take action" and other such BS non-explanations.
What I mean to say is, it was the powerful who were doing the "abusing" so presumably they were fine with it, and if the powerless found it intolerable then they could go pound sand. So who had an interest in and the ability to actually MAKE the process change? Because that sentence makes it sound like it was a dynamic government adjustment to moral demands or the opinion of the public, and 99.99% of the time that's pure BS to justify the interest of powerful ideologues.
It probably takes a greater familiarity with history than is commonly found today to understand some of these issues since they emerged from history and were not put in place retroactively with today's prejudices in place.
In this case, it is worth reading Hume's 'History of England' [the full set, not the stripped down schoolboy version] and MacAulay's 'History of England'.
In the Seventeenth Century, the time of the English Civil War and thereafter, different political (religious) factions gained ascendance and used the legal system to persecute those whom they opposed. In rough order, the Church of England was followed by the Puritans (Cromwell), followed by Charles II (secretly Catholic), James II (openly Catholic)
and William & Mary (Protestant and tolerant).
Professional liars like Titus Oates would accuse a political target of treasonous acts and the accused, normally not one of the lower classes, would be hauled to court and not allowed a lawyer to help defend himself. Despite being innocent [even his accusers often knew he was innocent] he faced skilled Crown lawyers who were prosecuting him. A non-lawyer facing a lawyer in court even today is likely to lose.
To lose a treason charge in those days meant that you were dragged on a hurdle, head down, through the streets where you were abused by the people, to a place of execution where you were hanged just long enough to find it an unpleasant experience, cut down still alive and castrated, then you were disemboweled and your guts were burned in front of you (you probably are still alive) and finally you are quartered and your various parts strung up in different locations. Because of the shift in power between different factions almost every side got a chance to be both persecutor and persecuted. It was in the interest of the vulnerable upper classes to favor a right to counsel in these proceedings–a change in the tide and they could be next.
The execution process is described in "Killers of the King: The Men Who Dared to Execute Charles I".
I think it was Hume who described a man who had been dragged, hanged, cut down, stretched on the scaffold and looked up to see the executioner advancing on him with a blade in his hand and remarked, 'Now here's more trouble.'
It is interesting to notice that in the Title IX proceedings now conducted in many universities [thanks to Obama] accused students are often denied permission to have their own attorney present with them in the proceedings. When the right to an attorney is removed, even in these cases, we begin to see why it is an important right.
As Young has described well in his reply, abuses by the powerful are usually not reformed by the powerless, they are reformed by other groups of powerful people. By definition the "powerless" don't have much power. Likewise the Ancien Régime wasn't brought down by the peasantry, it was brought down by the bourgeoisie.
And the Ancien Regime was also brought down in part by members of the nobility. Simon Shama has a very good book on the subject: "Citizens A Chronicle of the French Revolution" which I am reading now. Thomas Carlyle has also written a wonderful history of the Revolution, more poetry disguised as prose than anything. Dickens claimed to have read it 300 times and used it for his 'A Tale of Two Cities'.
But you are absolutely right: 'abuses by the powerful are usually not reformed by the powerless…" Those were Barons and higher at Runnymede, not peasants.
Knowing my uncle, I suspect he had exactly the reasons he said he did,
Which reminds me of someone else: Jonathan Kwitny's wife, graduated with honors from Harvard Law and became a public defender. Clearly, for her, it was all about the money.
After two years of defending uniformly guilty people, she quit and became a prosecutor. Obviously she could learn, but equally obviously it was possible for a graduate of Harvard to come out with fundamentally wrong ideas about the legal system.
From my observation of public defenders, perhaps more jaded than your example — I concluded that their real function was not defense, but rather to streamline the conviction.
I think in practice, their job is usually to negotiate a reasonable deal with the prosecutor. This is a shitty way of seeing justice done, but it's how our system works–anyone, innocent or guilty, who doesn't have expert help navigating the legal system, is going to get ground up in the gears.
Well, I don't know what was in your uncle's mind, but criminal law is a very small part of the profession; it merits only one short course in most law schools. I can't imagine why he rejected the rest of the opportunities open to him.
You knew someone who "graduated with honors from Harvard Law and became a public defender. Clearly, for her, it was all about the money."
If it was 'all about the money' she would not have been a public defender or a prosecutor. Both those positions are basically civil servant jobs. They are government employees and are paid accordingly.
When it is 'all about the money' lawyers try to become corporate counsel or become members of a large, well-established firm which, almost certainly, will deal mostly (or entirely) with civil law rather than criminal cases. They tend to refer criminal cases to someone who knows how to do them.
That is where you go when 'it is all about the money.'
Some people like working for the prosecuting attorney or public defender, but for many those jobs provide paid apprenticeships in trial law. Both provide immediate opportunities for a raw lawyer to get into court and learn his skills. They don't teach much of that in law school. They claim they aren't 'trade schools' but are true academics. So you graduate not knowing how to sue someone or defend or prosecute a case. Trial experience in the public defender's office or the prosecutor's office is like going to a post-graduate finishing school.
Even private firms that do criminal law can be reluctant to pitch a new lawyer into court. I attended a legal seminar taught by F. Lee. Bailey and he said that for the first couple of years a new associate isn't allowed to do anything in court. When he is allowed, it isn't much.
So, no, it probably was not all about the money for her [wrong place for her to look for it] so I would guess it was a bit of misplaced idealism mixed with a wish to learn how to do trials.
That's the joke.
I agree that no one goes into criminal law because it is "all about the money". An HLS grad can make twice as much as the top paid criminal lawyers in public or in private practice in their early years at Big Law firms. Lots of very experienced prosecutors to become private criminal defense lawyers for the money, but at that point they are locked into their specialty and making 25% of what Big Law lawyers with comparable experience make even then.
Our legal system is an adversary system. This developed in lieu of an inquisitorial system, because neutral inquisitors tend to be lazy since they have on stake in getting the right outcome (and because people really, really hate that kind of process when use in the Star Chamber). So, we have a system in which both sides are given roles that call for being vigorous in exploring a case that are then presented to a more or less passive judge or jury who just listens to what the advocates present. If you have a vigorous advocate for one side, you need a vigorous advocate for the other, because despite the fact that the prosecutor's office is supposed to seek justice rather than merely trying to convict everyone of the maximum charge, behaviorally, that isn't how prosecutors act.
Andrew, true enough with respect to our judicial system. Unfortunately, the Star Chamber proceedings have returned with the expansion of administrative law. See, Professor Philip Hamburger's, "Is Administrative Law Illegal?"
One example was the Sweet Cakes Bakery case in Oregon. The Oregon constitution guarantees a right to trial by jury in civil cases. Yet, two lesbians who demanded a gay wedding cake [at a time gay weddings were not legal in Oregon] made a complaint to an administrative agency, had their claim prosecuted by a member of that agency, and had their claim adjudged by a member of that agency. A substantial fine was levied against the bakery. The jury, and for that matter a real judge, were completely bypassed in this administrative proceeding despite the guarantees in the state constitution.
Correction: "Is Administrative Law Unlawful"
So I've heard, but I see no reason to take it very seriously.
Is there any good evidence for/against the idea that our adversarial English-derived system works better than a Napoleonic system at correctly determining guilt/innocence? I'd guess (without much expertise) that the US system is especially bad at determining guilt correctly, because of our reliance on plea bargaining. But I don't know where you'd look for evidence on that.
Tommy Gee says:
Because there is a lot of uncertainty in life and everybody deserves an advocate. I hope you never have to find out the hard way how wrong you are about this.
Well, when someone steals my car and a fair amount of other stuff, and then is released without charges because a psychiatrist has concluded that the perp is not able to understand the charges – released, as had happened more than 40 times before – gee, I guess I have some trouble myself understanding the legal system.
You are referring to competency to stand trial, I believe. In fact, no psychiatrist has the legal authority to rule on competency. That is a legal decision that rests with the court although the court will be guided in part by expert testimony provided by psychiatrists, sometimes from both the defense and the prosecution, presenting contrasting opinions. If a person is so mentally deficient as to be unable to understand the proceedings against him and consult with counsel [incompetent to stand trial] then he should probably have a guardian appointed for him and, very likely, be confined for treatment or care. These days, thanks to progressive policies, instead of treatment the mentally ill are sent to live in cardboard boxes on the streets of LA or San Francisco where many of them continue to steal. The law can't act effectively without the political will to support it and that is lacking.
Judges are particularly well prepared to sort out pseudoscience.
Big city federal judges will resolve dozens of motions to exclude expert testimony every year, so will at least have practice.
Most judges come from a criminal law background, so they tend to be more familiar with forensic pseudoscience than they are with business law. But, they are very influenced by conventional wisdom and claims from authority relative to logic and empirical evidence. Also, it isn't at all uncommon for judges to rule for reasons other than their publicly proclaimed ones, in order to satisfy their own personal sense of right and wrong in the case.
gabriel alberton says:
The problem likely doesn't lie with you in a case like that.
But one day, you might not have trouble understanding the legal system, you might have trouble with the legal system, as it was pointed out.
If you so far that has not happened, very well done. Be proud of it, be happy about it. But that also means you did not live through the experience.
Does that matter? I don't know. It's sort of like Mary's Room and stuff.
Mike1 says:
You are confusing the dysfunctional political system of where you live with other concepts. Someone has made a political decision that their citizens should be the victims of criminals and you are one of many people paying for that irrational choice.
What you are missing is that people within systems run to the hard edge of where they get pushed back on. Police can and do routinely make up evidence where they believe they can get away with it. Often in their minds there is nothing malicious about it. They "know" the perp is guilty but can't prove it. Prosecutors do the same thing. The motivation for them is usually sheer laziness.
The idea that you shouldn't have someone pushing back on this behavior is as dumb as letting a habitual thief go without punishment. The systems were painstakingly built for tougher times which will come again.
Your anecdotes about lawyers graduating without understanding the basics of the system they planning on going into (also not bothering to EVER walk into a courtroom apparently) is yet another data point that IQ is not everything. This is like becoming a banker and being stunned that some people default.
Which is why countries like France with inquisitorial legal systems, as opposed to adversarial systems like ours, have a qualitatively different impact. Except that they don't.
The difference certainly influences a lot of things. Being a lawyer is a lot less profitable in France. From a practical perspective, the biggest differences probably arise from the fact that both facts and law can be appealed one in a trial de novo in France, while that is not an option in the U.S., which means that U.S. lawyers have far more of an incentive to prepare for any possibility the first time around at unreasonable expense. Another big difference is that interpretive law making power in inquisitorial systems is vested much more heavily in law professors and much less in judges. Some things it does better, some it does worse.
Your quote from Shakespeare's Henry VI, "the first thing we do, let's kill all the lawyers."
I think that is what the radical feminists who prosecute university Title IX cases against male students would love to do. At the moment they are content simply to bar lawyers from being present in their Star Chamber proceedings.
How is that working out?
What would have happened to the falsely accused Duke Lacrosse Players or falsely accused George Zimmerman without their lawyers?
Without lawyers what would have happened to Catherine Englebrecht (True the Vote) when Obama turned multiple federal agencies against her? By the way, she won her suit against the IRS.
You certainly wouldn't want anyone to do that if you had a crime commited against you. Must be infuriating to witness known criminals benefitting from the system.
But you might be very much interested if, one fateful day, you're accused of commiting a crime. Even more so if you actually commited said crime.
My pal was one of those people who is very clever in some ways and a damned fool in others. His folly of choice was Marxism. He had been confident that he'd find the court system to be a bourgeois conspiracy for jailing innocent proletarians. He was accordingly dismayed to find that it wasn't. Even his possible mistaken identity case was not a police plot – it was just a couple of eye-witnesses being wrong or, perhaps, right.
One of the unfortunate claims in [Marxist} Critical Legal Theory now touted in some law schools is that the legal system is set up only to protect the powerful and the wealthy. The flaw in that argument is that without a legal system the powerful would take everything. Uncorrupted a legal system offers the only protection the less powerful have. One sees that from time to time when a citizen or organization [True the Vote, for example] stands up to the all powerful. A more ordinary example is seen in the case against George Zimmerman after he shot Trayvon Martin. The president was against him, the DOJ was against him, almost all of the media were against him, the prosecutor was against him [the prosecutor's duty is 'to see that justice is done', not represent the 'victim' which this prosecutor claimed to be doing] and the judge appeared to tilt against him. What saved him was a jury composed of ordinary people and a capable defense team. Step on the wrong political Easter Egg and anyone could find an oppressive system bearing down on him. The only thing left is defense counsel and, hopefully, a fair jury.
I talked to a Chicago public defender about this question. He said that his job was to keep the Chicago cops from totally running amok: torturing suspects, planting weapons, hiring witnesses, …
And also some prosecutors.
Given the crime rate in Chicago, I'd want the police to be more amok than they are now.
Not amok but do a better job.. i don't fault their work on Smolett.
Beating confessions out of people or planting evidence is often going to mean sending the wrong guy to prison, which isn't going to do much to lower the crime rate. I mean, you can hope that the cops mostly frame bad people who kinda had it coming, but that's not obvious….
"Maybe a porn scientist, we will name him a pervertologist. This joker has a long test that asks a bunch of dirty questions and the results tell you what perversion is right for you."
Child sex offender "therapists" who run programs to supposedly cure pedophilia and determine if someone with an indeterminate incarceration for a child sex offense has been successful and may be released comes pretty close and their mechanisms are pretty icky.
When I started working with sex offenders around 1980, the penile plethysmograph https://en.wikipedia.org/wiki/Penile_plethysmograph was part of the precourt evaluations at our facility. I thought at the time that it must be easy to defeat the test with concentration and practice, but it turns out to be difficult.
In addition to visual pornography on slides, there were also taped erotic scenarios tailored to each inmate, narrated by student nurses, who would take the job to make extra cash.
I thought that physical castration [not chemical] would do the trick with those detained indefinitely under sexual predator laws. Let him watch anything he wants, including child porn, and when he switches to CSPAN he is probably safe to be released.
There wasn't a big molestation problem with eunuchs guarding harems. I wonder why?
Your note about the problem of replication of the result of 'studies' in court touches something I have thought about before.
If a study is funded by the government and the work is so incompetent that the results cannot be replicated, I wonder if the charges to the government might fall under the False Claims Act.
A lot of things do fit under that Act. Commonly today one sees Medicare charges covered by the Act, but liability is not limited to that. Basically any charge to the government that cannot be substantiated by the work done–or claimed to have been done–could be covered by the act.
Here is the good thing about it. Anyone can commence a suit for False Claims. The suit does not have to be started by the United States Attorney. The Act provides for treble damages. That can be a lot. Moreover, even though the federal government takes the greater portion of the damage award, the party bringing the suit also gets a share. Basically, this can make any citizen with knowledge of a false claim a legal privateer.
I saw one study a few years ago, funded by the government, that claimed to have discovered a link between a child's exposure to lead and onset of an attention deficit disorder. If I remember correctly, the deficit disorder was 'diagnosed' on the word of the parents and the exposures to lead were minimal. I thought then that the guy doing the study might be open to a False Claim Suit. Maybe. There seem to be a lot of studies like that. I would not be surprised if some lawyer with a little knowledge of science decided to start harvesting in this field.
Not all defendants are guilty.
A very close friend of mine was recently hit with with rape and (I believe) some high-level serious felony assault charges after his BPD ex-girlfriend went to the police and made up a completely over-the-top victim story.
To provide some context, she only did this because he refused her myriad aggressive demands that he pay her several thousand dollars which he did not owe her (apparently for purchases she made for him during the relationship such as clothing and food), and only did so a full month after he had last seen her or had any contact with her.
In the interim (i.e., after he had left but before she fabricated said criminal charges), she stalked him via numerous phone calls, voicemails, text messages, emails, and messenger chats. She even contacted his mother and overnighted a package to her intended for him.
I probably should refrain from providing further detail and may have already said too much, but even a 5 minute read through of their text messages on the night in question is enough to be absolutely certain that no rape or assault or anything of the sort ever happened whatsoever.
Nevertheless, he spend several days in county jail, and although the prosector has not so far indicted, he is still, as far as I know, currently facing the aforementioned rape and assault charges as a direct result of her lies.
As a friend, what the hell can you do to help in a situation like that?
Your post has bugged me since I read it a couple days ago.
If he spent time in jail I assume he already has a lawyer. As a friend there isn't much you can do, but there are a few everyday things that come to mind [I am not giving legal advice.]
One practical thing that he can do is learn more about his case than anyone else. All of the things you mentioned above should be reviewed until they are thoroughly present in his mind as well as being available on recordings. If he is in trial he will be much more able to assist his attorney if that information is at the tip of his tongue. Often the prosecutor will not be that prepared.
All of the information you mentioned should be organized to form a timeline. Keep everything. He should also have copies of anything he sent to her at his fingertips. Make a trial book with copies of everything, including possible witnesses and add to it as more information comes in. Mark it 'Privileged – For the use of my Attorney' an ordinary journal or diary might be discoverable but privileged attorney-client communications are not. He should let his attorney know that he is preparing a book to help him. He may have other ideas about it.
It is tempting to explain your side of the story when you are facing charges, and the police encourage that, but it often gives the prosecutor and accuser an opportunity to change their story so they can weaken what would otherwise be a good defense. Even if the accuser originally said one thing to the police that turns out not to be credible she could say that the police officer wrote her statement incorrectly and she never really said that. I have seen that happen. Best thing, let the lawyer talk to the authorities and keep his mouth shut. Anyone can be called as a witness.
In some jurisdictions when there is an allegation of sexual assault or domestic violence a mentor will be assigned to help the 'victim' navigate the stresses of being an accuser. Sometimes that mentor has full access to the state's file and information in that file can leak back to the accuser who then has a chance to change her story. It isn't right, probably not ethical for the accuser to have full access to the state's file by proxy, but he may have to deal with the possibility that it is happening whether it is ethical or not.
Bear in mind that prosecutors often make mistakes and if he and his attorney are prepared they will see them and take advantage.
Tell him to get a lawyer and not to talk to the police without his lawyer present. Innocent people have been fast-talked into making statements that get them convicted for stuff they haven't done, and sometimes into confessing for stuff they haven't done.
Don't assume you're immune to this because you're smart, though I think a lot of the cases where this happens are with people who are slow or young or mentally unstable. Used car salesmen with 100 IQs take advantage of new-graduate engineers with 120 IQs buying their first car all the time, and the policeman questioning you in a criminal case has way more power to put pressure on you than any salesman.
Judges and pseudoscience.
No, judges are not prepared to sort out pseudoscience and they would agree with you. That isn't their job.
They, and juries, weigh the testimony of experts who claim to be capable in science, and they are particularly good at doing that. Day after day judges listen to people who are trying to b.s. them, but in the end they have to rely on expertise that is not theirs when it comes to certain fields.
For example, if I sue my plumber because he did a crappy job on a home I am building I do not expect the judge or the jury to be authorities on plumbing. I bring in one or more expert plumbers who have looked at the work and compared it to the industry standards. The job of the trier of fact is to determine which of the witnesses is reliable and which is trying to put some b.s. on the table. Judges are actually pretty good at that.
When an expert witness comes in, to qualify as an expert and have his opinion count as evidence, in contrast to only the things he has seen, foundation has to be laid. He must establish his bona fides, his education, his time working in the field, etc., etc.
The problem with pseudoscience in the courtroom is that some of the experts come in wearing all the gongs and awards from academia, clutching a handful of 'peer-reviewed' journal articles, and certificates of membership in associations that ask you to join for only a modest fee of a few hundred dollars [you must have gotten some of these offers for your trash can], together with other paraphernalia. With those credentials, how can anyone know that they are basically intellectual frauds? The judge isn't going to go back to chambers and try to duplicate the experiments and the jury won't do it either. Hopefully opposing counsel will try to pick up the slack, and some lawyers are good at that. Something like that was done by defense counsel in the Duke Lacrosse Case. Others not so good.
The problem with pseduoscience isn't the courts, but, mostly academia. Alan Sokal [and others since him] have shown that peer-review journals can be gibberish. Research can border on [and sometimes pass the border] of insanity.
One would think that studying glaciers would be a hard science and trustworthy, but apparently not. Consider this statement from a feminist approach to studying glaciers by people at the University of Oregon:
"Merging feminist postcolonial science studies and feminist political ecology, the feminist glaciology framework generates robust analysis of gender, power, and epistemologies in dynamic social-ecological systems, thereby leading to more just and equitable science and human-ice interactions."
https://journals.sagepub.com/doi/abs/10.1177/0309132515623368
By normal standards, counting gongs, publications, certificates and the weight of university approval, these people would be qualified as experts when giving testimony in court.
The problem with pseudoscience in the courts is actually the corruption of science in academia. Their 'credentials' are no longer worthy of trust. Look upstream for the source of the problem.
For many years, courts have listened to experts on fiber analysis, to psychologists and psychiatrists. Even to sociologists.
What more need be said?
Judges don't pick the witnesses. You work with what you have. Bear in mind the goal in court is to prevail, not establish scientific truth. If a crackpot expert gives everyone a clean way out of a problem that can't be solved any other way, you take it.
That said, even in places where scientific proof is supposed to be the goal the results have been disheartening in recent years, hence the problems with reproducibility. Don't expect courts to pick up the slack for the failures of academics. When university experts strive for more just and equitable human-ice interactions the judicial system isn't left with much to weigh logically. I think I really would like to see some of these studies sued under the False Claims Act. They are a waste of money.
By the way, what authority is going to tell the courts they are not permitted to hear certain experts? You know the system would be coopted by the same people who are demanding feminist, post-colonial glacier studies.
Fiber analysis is bs? I was not aware of that.
I don't think fiber analysis is b.s. though there could be questions of ifs resolution in some instances. This is something that can be challenged in court if the analysis is poorly done.
To get an idea of a good bit of testimony by a credible expert watch the videos of the testimony of Dr. Vincent Di Maio during the Zimmerman trial. They should still be available online.
Here it is: https://www.youtube.com/results?search_query=vincent+di+maio+testimony+zimmerman
One of the depressing things over the last 15 years of my life has been realizing that the two places in our society where we are the most careful to get the right answer, criminal trials and peer-reviewed science, both have huge problems and aren't all that reliable.
This is one of the best comment threads I've seen on here in a long time (twitter has really distracted Greg and diminished the quality of this site).
I admit I had given this topic very little thought. It seems like one of those areas of everyday life where scientific methods seem strong but actually aren't, but nobody wants to look too closely, such as nutrition science. Like nutrition science, the justice system already has a loud faction of detractors, but they are quacks who most consider an annoyance instead of constructive critics. (For nutrition science it's fad dieters etc., while for the justice system it's idiots who want to abolish prisons.) Saying you're doubtful of the justice system's workings puts you in the quack camp in most people's minds, so people tend not to bother.
This is a shame, because improving the justice system is probably one of the few major ways to improve race relations in the US at this point that does not involve genetic engineering. You'd think progressives would be all over it.
Improving the justice system would not improve race relations. I don't think.
Yes it would. More black criminals would be in jail.
Blacks, enough of them, don't want that.
That is important only if one thinks better race relations means appeasing black complaints about the rest of us. I don't. Blacks commit crimes against whites, Asians and Hispanics at a much higher rate than the reverse. Maybe better race relations means for the rest of us to have fewer reasons to resent them. Jail could help with that.
Most of the bad evidence is being used to put probably-very-bad people in jail despite the police not having a completely convincing case against them. (Sometimes it's being used to railroad some poor bastard who was in the wrong place at the wrong time and looked guilty, or to destroy the life of someone to further a prosecutor's political ambitions.)
Suppose that 90% of the time, the guy going to trial is actually guilty of more-or-less what he's charged with. (He's a drug dealer, whether or not these particular drugs came from him or were planted to get a conviction, say.). And we have some kind of magic-8-ball/Ouija-board kind of evidence set up so that it almost always supports the prosecution. Getting rid of the BS evidence will probably put more guilty people back on the streets, in order to avoid railroading some innocent people.
I'd take that tradeoff (though I'd like some major reforms, like getting rid of plea bargaining and streamlining jury trials), but it's a tradeoff that's likely to make it harder to put bad people in prison as well as harder to put innocent people in prison.
My guess is that you could improve the world a lot by getting the justice system to work faster and more consistently. Most criminals are low-IQ and have short time horizons, so giving them consequences for crime that are far in the future and contingent on a bunch of complicated legal stuff they don't understand is a poor way of convincing them to do avoid crime. Better a public flogging next weekend than a 10% chance of a 6-month sentence in the county jail plus two years of probation.
The fact that most crimes don't ever get solved makes this worse–you can go around robbing and raping your fellow citizens for quite awhile before the cops catch you. Which makes the punishment even more uncertain.
More to the point, a larger proportion of them would be guilty as charged (before people comment, I'm aware that most are already). The failings mentioned by earlier posters are probably more noticeable to subgroups when high proportions of their members are arrested and jailed.
Progressives are all over it.
How often do they make substantive criticism of the justice system as opposed to the vapid nonsense I mentioned in my earlier post?
Close to never.
GondwanaMan says:
Blood splatter analysis in particular in bullshit. Which is sad because Dexter is one of my favorite shows of all time.
DNA and ancestry data is gonna complete revolutionize criminal law, for the better. It's pretty exciting to think about.