I do not know very much about the philosophy of law (well, OK, I don’t really know anything about it!) so this may be a half-baked idea that has been thought of and rejected already. But, I was watching Law and Order yesterday and I was struck by what must be a very obvious fact about the way that we run our courts. Since the jury is listening to the trial live there is an overwhelming temptation for trial lawyers to say stuff that they know will be objected to and even stricken from the record since it is obvious that a jury cannot really ‘disregard’ something that has been said. They may TRY to consciously ignore it, but once it is heard it is in there and doing its damage. Now, I know that in some egregious cases a mistrial can be declared but usually the jury is just instructed to ignore the comment and the trial goes on as usual. Which brings me to my thought.
Why is it that we still have the jury listen to the trial live? A better way to do things, it seems to me, would be to have the trial run as normal sans jury while being video-taped (from the pointof view where the jury would be located). The tape could be edited by the judge to exclude the objectionable material and then the edited tape would be shown to the jury. That would ensure that the jury only sees what the judge rules admissible and would abolish the grandstanding and circus-like atmoshpere of (some) trials.