Richard Brown

A Thought about the American Trial System

By

Richard Brown
1–2 minutes

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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.  

Comments

18 responses to “A Thought about the American Trial System”

  1. dru Avatar
    dru

    interesting concept. perhaps the fact that nothing can be forgotten is a benefit? i can imagine situations in which it is beneficial for me to know an opinion or fact that is not related to my problem solving or decision making. i suppose the question is whether legal epistemology includes erroneous facts on purpose or accidentally.

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  2. Brandon Avatar
    Brandon

    One of the reasons, I think, is that the jury is not merely there to decide the case but to give it legitimacy as an act of the people. This is lost if the jury only sees the trial through a recording that has already been doctored (with whatever good intentions) by a judge.

    Reply
  3. E.J. Lee Avatar
    E.J. Lee

    Hi Professor, this actually is especially interesting because I was a witness in a case where I was asked many questions that were unrelated to the case and where withdrawn and stricken right away. Even though I was questioned like this (and thought I hated it), I can see how it could be useful to the jury. By asking these sort of questions, it helps create a personality or background for the jury to understand which in turn can help the jury try to figure out the truth. Of course this brings up the application of law and justice based on discrimination and judging.

    Also, by recording the trial and showing it the jury after it’s been edited by a judge, a judge’s personal integrity would be questioned. I mean, whose to say that the judge will or won’t edit out the objectionable material because the judge has his own opinion on the trial.

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  4. Noah Avatar
    Noah

    Face to face contact is important when speaking to people. If you are trying to convince a person of something having them directly in front of you, responding to what you say, allows you to react on the fly. Also, there is only so much that can be captured by video: the emotion of the victim, the look on a witnesses face, all the little things that can make you believe someone’s story will be at the mercy of the cameras. There will always be sleazy (circus) tactics, but I’d rather have as little intermediary in between people who will decide someone else’s fate and the evidence.

    I was in a similar situation once as EJ Lee: the defense attorney was slime and during jury selection he kept introducing evidence by saying “If the judge were to instruct you about x, y, z, how would you respond?” with x, y and z being specific kinds of gruesome evidence. The guy wanted to see how we (the potential jurors) would respond. The assistant district attorney objected nearly every sentence; it was a mini OJ trial. Eventually the judge told the guy that if he did it one more time he would be held in contempt of court, but the attorney got what he wanted: the judge had to instruct us about the evidence (strangulation and blunt force trauma to the head) and hence the guy got to see how we reacted. I was not selected to be on that jury.

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  5. GNZ Avatar
    GNZ

    think Brandon is right, although i think the question remains if we should value that sort of legitimacy and if it outweighs the benefits of your system.

    I am inclined to think your proposal remains a marginal improvement.

    Reply
  6. Richard Brown Avatar
    Richard Brown

    Hi everyone, thanks for the comments.

    Brandon, I agree that the jury is there to give legitimacy to the trial as an act of the people, but couldn’t that be done by, say, having the jury prsesent at some point so that the accused can see them face to face and then sequestering them for the rest of the trial?

    EJ, The judge has ultimte say about what is admissible in their court, so I don’t see what the problem is about their integrety (that is, that wouldn’t also apply to the way they already get to decide what is and isn’t admissible. In principle what I am suggesting is no differnt than the kind of decisions that the judge makes about allowing certain (say) defense items to be presented at all). Also (and this is a rersponse to Dru as well), while it may help to have the kind of background info that you alude to, if the judge rules it improper or irrelevant to the case then it should not be presented to the jury.

    Noah, I don’t see what the difference is, really. With our modern technology and high def tvs, we should be able to capture all of the things that you mention.

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  7. Noah Avatar
    Noah

    Hello,
    I guess I have to say that I straight up disagree that our technology can capture everything that is important. We could argue about significant factors at this point, but I don’t think it would be any fun.

    I have more faith in our interpersonal ability to tell what is going on (e.g. someone is a liar), than I have in any particular technology representing us. 100 years ago someone could have made the same argument that we should record the audio of the trial to prevent overacting of witnesses. 50 years ago we could record witness testimony in black and white. Now we have high-def TV. We will have even better technology in the future. I think this reliance on technology misses the point: we could always read the court transcript back, even before mechanical recording devices. We don’t know what will be the deciding factor for the jury and hence shouldn’t regulate how the jurors get their information.

    Anyway, didn’t you see Legally Blond? How else would Elle have won the case without first discrediting the lying pool-boy? Sure a tape would shown him caught in a lie, but the jury would have missed the boyfriend storming out of the courtroom in a huff. That huff provided valuable information about who the pool-boy was: it confirmed that the lie was not just some slip-up or merely misspoke.

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  8. Richard Brown Avatar
    Richard Brown

    I have seen Legally Blond. Why would the jury have missed that? That is something that could easily be captured by a video of the proceedings.

    As for you points about technology, I agree to some extent, with what you say but I don’t really see the relevance. It is easy to see that an audio recording would be insufficient, black and white less so, but ultimately I think you could make the case against it…and granted we will have better technology in the future but so what? The point is that right now we have technonolgy that can faithfully and accurately give the jurrors everything they need to make their decision but in a way that CANNOT be biased by the tom foolery that so often plays a role in the way we do things now.

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  9. Noah Avatar
    Noah

    The issue with the Legally Blond scene is that something relevant happened in the audience box, a place which probably wouldn’t be well covered by a camera because usually nothing of import happens there. Sure, if the entire courtroom was blanketed by cameras, then there would have been good video of it, but I don’t see this being feasible (at least not currently).

    The second point about technology is that I believe there always was and will always be tomfoolery: it will just evolve with the technology. Insofar as I believe that, I want the jurors to be there in order to sort through it. Sure the judge may have her hands full when such things occur, but because I have less faith in technology than you, I err on the conservative/ traditional way of doing things.

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  10. Richard Brown Avatar
    Richard Brown

    1. that seems like an easy fix. We could simply have multiple cameras and the judge would decide whether anything relevant and admissible happend in the audience box and so whether to include it or not.

    2. What sort of tomfoolery would there be if we did things the way I suggest?

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  11. Noah Avatar
    Noah

    A multiple camera system would be good, and should be implemented as soon as it becomes economically feasible. Getting multiple cameras in every court in the country is no small task though. I think this is a much ‘easier fix’ for us armchair lawyers than it would be in practice: we would need trained people to set up each system, ensure it is working correctly and securely, we would need to train judges on how to efficiently edit the recordings and display them to the jury and make sure this entire process is very quick to ensure that we maintain our right to a speedy trial system. I bet this is just the tip of the iceberg- I’m sure there would be so many legal issues that they would make our poor philosophy minds spin.

    As for tomfoolery, the point is that it cannot be predicted (insofar as tomfoolery implies fooling someone). People are creative; they will find a way. Or at least I believe that there will always be slimy defense lawyers who will bend the system to win their cases, camera mediation or not. I’m sure some types of grandstanding will be cut down if we do things you suggest, but I still don’t think it is warranted to go completely away from live juries to prevent TV or movie-style drama from occurring. We have taped testimony for people who can’t make the trial for various reasons now anyway. Perhaps it should be allowed as a punishment for defense attorneys who use deceptive practices.

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  12. Richard Brown Avatar
    Richard Brown

    Yeah, no doubt there are tons of legal issue…and I think I agree with your last comment. But as I said, it was just a thought! 😉

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  13. Noah Avatar
    Noah

    and a good thought it was

    Reply
  14. Brandon Avatar
    Brandon

    Brandon, I agree that the jury is there to give legitimacy to the trial as an act of the people, but couldn’t that be done by, say, having the jury prsesent at some point so that the accused can see them face to face and then sequestering them for the rest of the trial?

    I’m not sure how this would give legitimacy to the trial itself as an act of the people; all it does is bring a few people in to meet the accused and then shuttle them off again, while all the real trial is done independently of them.

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  15. Richard Brown Avatar
    Richard Brown

    Well it allows the accused to meet the jury that will be deciding the case and allows everyone involved to recognize that it is a jury of peers that will be deliberating…or maybe I missed the point of your original point?

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  16. Brandon Avatar
    Brandon

    One of the standard justifications for jury trials is that the jury legitimates the trial itself by representing the people in the trial. But in your plan the jury doesn’t represent the people in the trial at all; it merely decides the case on evidence that has been prepared in a certain way for it. In other words, the point of the jury is not merely to deliberate but to represent and observe, because you have juries in part to make the point that even in an independent judiciary it is the people, not the government, who have the primary and basic authority. What your plan is suggesting is that we separate the accused from the jury for the duration of the trial (even though the jury is one of the accused’s trial protections) and interpose between the jury and the accused a government magistrate, who will communicate the accused’s case to the jury (even though the jury is there in part because historically it was felt that the power of magistrates in matters of trial needed to be sharply limited). This drastically weakens the legitimizing function of the jury.

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  17. Richard Brown Avatar
    Richard Brown

    Hmmm…I see what you’re getting at.

    How about this? We keep the jury in a soundproof room adjacent to the trial room (much like the present jury’s box but enclosed). We have them facing the courtroom in exactly the way that would if they were not enclosed. The wall that the jury is looking at is actually a one way mirror type contraption. What the jurrors see is a video of teh court proceeding (with some kind of delay from live, like maybe 5 minutes?). What the participants of the courtroom see what they look at the wall is the jury watching the (delayed) video, since the wall is one way transparent. When the judge orders something stricken from the record it will be quickly edited out of the video feed that they jury’s watch by a court officer (like thge stenographer). This way the people are represented and they are seen to be observing (the jury is visible to all just like in a normal trial) but yet there is no way that a devious advocate (whether for the people or the accussed) can get the jury to hear something which is inadmissible.

    I don’t know whether this is someting that is technically feasible, but doesn’t it solve the worry that you have and keep the benefit that I want?

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  18. GNZ Avatar
    GNZ

    Technically – with one way mirrors it is darker on the side that can see through – but in this case that would be the courtroom, which can’t be dark. Presumably you want to instead set up a video wall – like we have for video conferences, with the obvious delay for one side. that should be off the shelf technology.
    It sounds like how some radio shows work in order to delete out accidental swear words.

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