In Britain...

[The Duchess of Zeon]

I'm not great on legal systems but didn't Napoleon introduce a legal system where the prosecution, defence and Judge were suposed to work together to find the truth rather than the current adverserial system? Do you think that would work better?

Hell, no.

First thing that will happen, is a meeting at which they agree what truth it is, they're going to find.

And yet the Code Napoleon works just fine in Europe.

[Darth Wong]

The problem with the adversarial system is that the relative skill of the two combatants is an unacceptably large factor in the outcome. And I can't see how that can be fixed within the context of an adversarial system, because it's part of how such a system will inevitably work.

Why should a justice system be so heavily influenced by the lawyering skills that each party can afford? Is that not a travesty?

[Justforfun000]

Darth Wong Wrote:

Why should a justice system be so heavily influenced by the lawyering skills that each party can afford? Is that not a travesty?

Unfortunately without having a means of actually reading minds, we have no choice but to try to deduce whether or not someone is truly innocent or guilty in the absence of concrete proof. I guess it's one of the best alternatives we have until we can find another way to absolutely determine guilt.

Just another reminder that no matter how technically skilled, educated or advanced we become in social matters, we are still very imperfect beings. But I don't subscribe to the belief in anything being "perfect". I think that's just a human idealist concept that has no rtue bearing in reality. How could you possibly determine something as perfect? You'd have to know every conceivable reality to compare it to.

[Hillary]

On the general subject of rape cases, it is always going to be difficult to get conviction rates up. In the vast majority of cases, women are raped by people they know in situations they have freely entered. In other words, we are not talking about women being forcably dragged off the street and tied up, with all the obvious physical evidence of assault that this leaves.

Instead we are left with one person's word against another and this is where previous history comes in (e.g. is she the type of woman who would have casual sex), all designed to bring "reasonable doubt" into the jurors' minds. In the case of a genuine rape victim, this seems utterly repugnant. However, assuming the innocence of the accused (which is what the legal system is based on), is it not fair for the jury to hear evidence that the accuser was not exactly fussy in her choice of bedmate? I appreciate I may get flamed for this, but it is exactly what happened to a guy I lived opposite from in college. Without being able to bring forward evidence that his accuser slept with a different guy each night (the GIRL's in college nicknamed her "sperm Belly"), he could easily have been wrongly convicted of rape.

Yes, I absolutely agree that rape conviction rates are extremely low, but unless we reduce the standard of evidence required to convict, I don't see a way in changing things drastically. Personally, I am not in favour of going down this route.

The appalling examples given in the OP of judges' conduct is of course inexcusable, but I would suggest that this is not how the overwhelming majority of judges think.

[Zac Naloen]

Wasn't there a study recently in Uk that this is how the overwhelming majority of woman (who obviously haven't been victims of rape) think themselves?

I think it's bit more of a societal opinion than some people realise.

[Darth Wong]

Darth Wong Wrote:

Why should a justice system be so heavily influenced by the lawyering skills that each party can afford? Is that not a travesty?

Unfortunately without having a means of actually reading minds, we have no choice but to try to deduce whether or not someone is truly innocent or guilty in the absence of concrete proof. I guess it's one of the best alternatives we have until we can find another way to absolutely determine guilt.

There are plenty of ways to improve the system, such as replacing idiot juries with professional juries, or mandating a fixed (and government subsidized) fee schedule for all lawyers so that a person's wealth does not determine the quality of lawyering he will get, or making lawyers personally liable for any misrepresentations they are caught making on behalf of their client (lawyers are nothing if not conscious of consequence; if they know they could go to prison for intentionally distorting facts on behalf of their client, they'll watch themselves).

[Gil Hamilton]

There are plenty of ways to improve the system, such as replacing idiot juries with professional juries, or mandating a fixed (and government subsidized) fee schedule for all lawyers so that a person's wealth does not determine the quality of lawyering he will get, or making lawyers personally liable for any misrepresentations they are caught making on behalf of their client (lawyers are nothing if not conscious of consequence; if they know they could go to prison for intentionally distorting facts on behalf of their client, they'll watch themselves).

I was thinking about these things when I posted above, and they seem like a good idea to me. Particularly the making lawyers personally liable for misrepresentation. Having a law that states a lawyer can be lose his license if he is making an argument deliberately to misrepresent a case or client would be a strong positive step.

Of course, I imagine that you'd have to get more state attorneys, since you'd get plenty of cases where all the lawyers will collectively refuse to defend a client based on their clear guilt, knowing that they can't win without lying, but that can be helped by making sure legal staff that is provided by the state is well compensated, along with the set fee you mentioned above.

[Rye]

I would also suggest having a second judge that never makes contact with the first (he could watch it in a separate room, for instance) and see if they come to the same conclusions about the crimes and sentencing. If they did, it would presumably speak for the logical conclusions from the evidence and arguments posted. If they didn't, they could discuss it with one another and hopefully come to a fair conclusion.

[Alyrium Denryle]

As for rape and why conviction rates are low....

Rape is like Masturbation in a sense (dont hit me) Under the "right" conditions, many many males will engage in it, but everyone abhors it. This is evidenced by the very high frequency of females who experience rape or attempted rape. Most of these rapes are non-violent rape. They involve the subduing of a resisting female, but are not usually accompanied by a weapon or overt violence. Additionally, like masturbation this hypocrisy makes perfect sense if we look at rape from an evolutionary context.

This involves looking at a few things. Female mate choice. Intrasexual competition, fitness, and the interplay of all of these forces in the male and female consciousness and in society.

Females are looking for two things when they select a mate. 1) they are looking for the best genes. 2) they are looking for the best social partner and material/psychological father for their children. These things do not always coincide, and even when they do a female is benefited from increasing the genetic diversity in her offspring, and thus will engage in infidelity. A lot of a female's reproductive strategy revolves around fooling men, confusing them so as to throw off their ability to detect infidelity. Shifting ovulatory cycles, hot and cold periods sexually etc. This allows them to trick a long term partner into raising another man's genetic children should the situation call for it.

So how does this manifest in a females actual mate selection? In a long term mate she is going to look for the dependable, kind, compassionate guy. This is how they survive in the population, because they father children with long-term mates. However the female cheats on her partner (and has one night stands when single) with more confident, physically oriented alpha male types. This is a bit of a simplification, but bear with me. I dont have the sheer space I would require to go into the true level of complexity involved with such decisions(including sperm wars, topping up during routine sex, cryptic female choice etc etc). But you can probably see where I am going with this.

One test of fitness in these mates is a physical one... this is where this gets painful to think about. In order for this to work the female has to genuinely resist. What she consciously wants, and what her body wants have to be at odds. Females are more likely to ovulate (and thus potentially conceive) when she resists and is forced to have sex than when she is not. This pans out when we compare conceptions due to rape, and conceptions due to cosentual sex. There is no way for a male to bias this. I have checked. The only explanation that is possible that fits with the data is cryptic female choice Emphasis on the cryptic. It is also common in other animals. Mink for example, cannot ovulate unless the male forces copulation. There is no reason to think we operate on special rules. But! And this is a big But. The female genuinely does not want to copulate. She is raped.

However, if the male that rapes her is also a good social partner (high status, wealth, dependability in other respects) then she IS likely, statistically, to enter into a long-term relationship. Provided the rape was not the violent sort(ie. It was what we consider date-rape). Proximately this is probably the result of something like Stockholm syndrome. But it is also an evolutionary good bet(or consciously at least, making the best of a bad situation see below), a fit genetic partner that can also provide for the offspring.

This is an "alternate reproductive strategy" for a reason. It is non-optimal except under very specific conditions. For the female, the risk of disease and injury are high, and so is the risk of losing support from a long term mate. It removes her conscious control over who she mates with, and screws up her unconscious control over any sperm war taking place inside her body, and unbalances her as she walks the evolutionary tightrope of infidelity. Additionally, her social status decreases, for reasons I will go into in a moment, which further decreases her fitness. Her not informing others is an adaptation to our system, which does not favor the rape victim. Her fitness actually decreases as a result of being raped, unless she keeps it quite. It is an evolutionary Hail Marry pass, or putting Babe Ruth up to bat, strikes out often, but sometimes you hit a home run. Overall, it is probably maladaptive for females, but the reaction to it is probably a case of making the best of a bad lot. IE. her body and evolution are saying "Well... that sucked, but the guy was strong enough to subdue you might as well get something out of it and collect his genes so it isnt a total loss"

For males the situation is different. The reproductive benefits are obvious. The male gets to inseminate a female with little risk. So, under the right conditions, say, a time of war, your otherwise nice midwestern farmboy will rape Iraqi women... The boy next door will rape his neighbor, etc. The risk of disease and injury are low (it is harder for males to contract STIs than spread them, unless they are engaging in homosexual sex), and they probably wont get caught. And even if they do, they probably wont be punished harshly for it. And here is why. And I get to talk about masturbation as an analogy)

Ok. Everyone masturbates, but most people scorn it as well. That is because Masturbation is priming the pump for a sperm war. Frequent masturbation optimizes the ratio of hunter-killer sperm to egg-getter sperm to blocker sperm, for an offensive sperm war. IE fighting a sperm war inside a women who is being unfaithful to a long term partner, (who masturbates less frequently and has a sperm mixture that is blocker-rich) or impregnating someone outside a long term relationship. It is in the best interests of males to denigrate those that masturbate, while simultaneously masturbating themselves(and hiding it). It is a strategy for reducing the frequency of masturbation of other males (and thus try to make their sperm-ratios suboptimal) while still having an optimal mix yourself. It is not very effective, but it works often enough to reach near-fixation in the population (at least in the US, cant speak for other countries)

How is this like rape?

A lot of males do it (have to be for some quarter of women to experience rape or attempted rape during their lives), but everyone "hates" it. Historically males have had most if not practically all of the power, and thus have most of the cultural momentum of their side.

Males want to prevent other males from raping (and thus avoid them forcing them to raise another man's offspring) so they have to increase the costs of rape. But they cant raise it too high, because if they do they increase the costs to the point that a potential alternative strategy is closed off to them by its costs and their fitness decreases. The best strategy for males is to stigmatize the victim. They can get away with rape. And they have an out if their partner is raped. They can say that the female must have wanted it, and they can avoid raising the offspring.

This is why women don’t report rape. And this is why the male dominated justice system fucks over rape victims. Lets not even get into muslim countries….

Now, as females gain more power in society and start having more influence in our culture, this will change. But that day is not today. And it is slow going... because at this stage we are dealing with social responses to biological forces and a person can pick up a meme that is not in their best interests.

[Alyrium Denryle]

There are plenty of ways to improve the system, such as replacing idiot juries with professional juries, or mandating a fixed (and government subsidized) fee schedule for all lawyers so that a person's wealth does not determine the quality of lawyering he will get, or making lawyers personally liable for any misrepresentations they are caught making on behalf of their client (lawyers are nothing if not conscious of consequence; if they know they could go to prison for intentionally distorting facts on behalf of their client, they'll watch themselves).

I was thinking about these things when I posted above, and they seem like a good idea to me. Particularly the making lawyers personally liable for misrepresentation. Having a law that states a lawyer can be lose his license if he is making an argument deliberately to misrepresent a case or client would be a strong positive step.

Of course, I imagine that you'd have to get more state attorneys, since you'd get plenty of cases where all the lawyers will collectively refuse to defend a client based on their clear guilt, knowing that they can't win without lying, but that can be helped by making sure legal staff that is provided by the state is well compensated, along with the set fee you mentioned above.

I can see problems with making lawyers liable for misrepresentation. One is the possibly capricious nature of the law's applications. It would be possible to go after a person's lawyer, or beg the question regarding guilt and arrest a lawyer for lying during the trial. This is very very dangerous water to tread.

Professional juries, provided they were also aware of jury nullification can be used in cases where the law technically but did not morally apply, I would be willing to try.

On the other hand, considering my post above, I am not sure it would wrk for rape cases.

[Darth Wong]

I can see problems with making lawyers liable for misrepresentation. One is the possibly capricious nature of the law's applications. It would be possible to go after a person's lawyer, or beg the question regarding guilt and arrest a lawyer for lying during the trial. This is very very dangerous water to tread.

No it's not. Making the state prove that the deception was deliberate creates a pretty high burden of evidence, so convictions would be rare. It's the threat which would give lawyers pause, more than a wave of actual convictions.

[Alyrium Denryle]

I can see problems with making lawyers liable for misrepresentation. One is the possibly capricious nature of the law's applications. It would be possible to go after a person's lawyer, or beg the question regarding guilt and arrest a lawyer for lying during the trial. This is very very dangerous water to tread.

No it's not. Making the state prove that the deception was deliberate creates a pretty high burden of evidence, so convictions would be rare. It's the threat which would give lawyers pause, more than a wave of actual convictions.

Hmm. Ok.

How would you define a distortion or misrepresentation though? The rigor even in the definition would have to be... pretty high. In fact It would probably need to be higher than I have seen written in a legal code for some time...

[Darth Wong]

I can see problems with making lawyers liable for misrepresentation. One is the possibly capricious nature of the law's applications. It would be possible to go after a person's lawyer, or beg the question regarding guilt and arrest a lawyer for lying during the trial. This is very very dangerous water to tread.

No it's not. Making the state prove that the deception was deliberate creates a pretty high burden of evidence, so convictions would be rare. It's the threat which would give lawyers pause, more than a wave of actual convictions.

Hmm. Ok.

How would you define a distortion or misrepresentation though? The rigor even in the definition would have to be... pretty high. In fact It would probably need to be higher than I have seen written in a legal code for some time...

Well, we have cases on record where defense lawyers knowingly concealed evidence from the court, that they were in possession of but which the police did not know about. That's a pretty clear case where this kind of law would be put into effect and the bastard should be put away.

[Alyrium Denryle]

No it's not. Making the state prove that the deception was deliberate creates a pretty high burden of evidence, so convictions would be rare. It's the threat which would give lawyers pause, more than a wave of actual convictions.

Hmm. Ok.

How would you define a distortion or misrepresentation though? The rigor even in the definition would have to be... pretty high. In fact It would probably need to be higher than I have seen written in a legal code for some time...

Well, we have cases on record where defense lawyers knowingly concealed evidence from the court, that they were in possession of but which the police did not know about. That's a pretty clear case where this kind of law would be put into effect and the bastard should be put away.

Ah! Ok. I thought you intended something like drastically reinterpreting the state's evidence in ways that make contortionists look inflexible... WHich would be acceptable because a lawyer should be able to do anything in his power, within the bounds of the law at least, to defend their client and if they have to do that and hope the jury (hopefully eventually a professional one) buys it, so be it.

But concealing evidence is another matter. Provided the lawyer cannot be forced to testify against their client. Hiding the murder weapon in their desk drawer however....

[Darth Wong]

Why shouldn't a lawyer be forced to testify against the client? Honestly, if a client says to a lawyer, "That little kid squealed real good when I raped him", why should this be protected by "client-lawyer confidentality" and not brought to light?

[Kanastrous]

Why shouldn't a lawyer be forced to testify against the client? Honestly, if a client says to a lawyer, "That little kid squealed real good when I raped him", why should this be protected by "client-lawyer confidentality" and not brought to light?

If defendants have to worry about their defense counsel taking the stand against them, they might withold information that could serve their defense, for worry as to what might come out (not being attorneys themselves, and maybe being embarrassed/etc over otherwise useful information).

Also - I don't know a really goos way to phrase it - it seems proper that the accused have a defender who is 100%, unshakeably on their side - within the bounds of the law and duties as an officer of the court..

[Alyrium Denryle]

Why shouldn't a lawyer be forced to testify against the client? Honestly, if a client says to a lawyer, "That little kid squealed real good when I raped him", why should this be protected by "client-lawyer confidentality" and not brought to light?

That is actually already taken care of. If the lawyer knows that the client did it, he cant say he didnt. That would be suborning perjury. They cant knowingly bring lies into the court... He would have to argue mitigating factors...somehow... or press for a plea agreement.

And I Echo Kanastrous.

If you can, frankly, intimidate lawyers by forcing them to testify against their clients, the client cannot get a fair trial. They cannot trust their lawyers because the lawyers can be forced to turn against them, and the lawyer cannot very well cross examine himself...

[Darth Wong]

I think you and I have different definitions of "fair". Giving every possible advantage to the defense is a perverse definition of "fair". And I know that it will be justified by people citing incredible corruption in the system, but the solution to that is independent oversight and real teeth in the punishments for such corruption, not making an absurdly one-sided system for them to work with. In fact, I'd go so far as to argue that the incredibly unfair nature of the system as it stands right now is a large part of the reason that so many prosecutors will bend the rules to get a conviction: the pervasive sense that the system is stacked to defend even the guilty.

[Kanastrous]

Given the incredible power allowed to the state and its representatives, I think giving the defense a lot of room is a necessary counterbalance.

It's not ideal; I can agree to that, but I think at present it's a necessary hack.

[Brain_Caster]

From what I read in that article I think a large part of the problem might be sloppy police work. If the police fails to record vital evidence it's one person's word against another's word, and in that case the only sane response is "innocent until proven guilty".

[Alyrium Denryle]

From what I read in that article I think a large part of the problem might be sloppy police work. If the police fails to record vital evidence it's one person's word against another's word, and in that case the only sane response is "innocent until proven guilty".

Yes. But if you see my post above, there is a reason why the police work is sloppy in rape cases, as opposed to other types of crimes.