The Logic and Morality of Trials by Jury

[Lord Insanity]

Why would a judge be any better at not resulting in a false conviction? Even if only one of the jurors is convinced you are innocent, you can't be convicted.

That is wrong. In most cases, the majority verdict is enough to convict you.

In any case, a panel of judges is clearly superior IMO. Not only do they know the law, most of them also know the tricks used by lawyers and prosecutors. So yeah, they should be the ones selected.

I am referring specifically to the U.S. as that is what I know. I should have been more specific. In the U.S. you must have a unanimous jury for a conviction. Otherwise, as General Zod pointed out, you have a mistrial or in some cases the charges are dismissed (usually after more than one mistrial).

One of the major reasons for laypersons to be in a jury (not the "smart people avoided" juries the U.S. has today) is as a protection against unjust laws. Alcohol prohibition in the U.S. ended in large part because juries were refusing to convict offenders. I have no doubt that the "smart people avoidance system" of jury selection today is specifically designed to prevent jury nullification. It should be noted that many judges in the U.S. are elected and don't necessarily have any legal training or knowledge of the law beyond a layperson anyway. I certainly would agree that the current system is in need of an overhaul but I see no reason why a jury system with juries comprised of rational and reasonably intelligent laypersons (which the U.S. currently doesn't do) should be replaced outright.

[Simon_Jester]

Just some food for thought: what do you think it would change the efficacy of the "trial by jury" system if the selection process for jurors was not controlled by the trial attorneys? For example, a court appointed professional who screens the juries independently of the case itself. Would this be better or worse than allowing the attorneys to do it themselves?

I think this would be far superior to the system we have now. It would be a better form of trial by jury, because it would not give control over jury selection to people who have a vested interest in it not working properly. Give any machine to people who want to watch it break, and you shouldn't be surprised if it blows apart on you.

=========

You are talking to Starglider and Darth Wong, both who are noted to love technocratic solutions on the grounds that they work better. And both who think that "it is democratic" is NOT a good reason to do something.

Yeah, I know. My distrust of technocracy is my reason for preferring juries. I've been asked to explain what I'm thinking, so I did. I recognize that there are technocrats out there, and obviously they will prefer technocracy to democracy. And so my reasoning will not compel them.

It will be a cold day in Hell before I manage to convince anyone firmly dedicated to the principle of technocracy-over-democracy (as I suspect Darth Wong, and quite possibly you and Starglider, to be) that he is mistaken. I don't really expect everyone (or anyone) here to suddenly go "Oh, wow, you're right." But there's a difference between going "Oh, wow, you're right" and going "Hmm, you're not totally batshit crazy." At least, I think there is. And I'm aiming for the latter.
_______

There are some situations where a technocracy does work better- usually ones where you can separate the goal to be achieved from the state of society at large. If you want to fly to the moon, you need a technocratic program governed by the limits of what is physically possible.

But if you want good government, trusting any self-selecting cadre to give it to you strikes me as a bad idea. Self-selecting cadres have a poor track record, and I don't entirely trust anyone who asks for power saying "this time, we'll do it right, even though groups like us who tried it before failed."

In the general case, I prefer democratic solutions to technocratic solutions wherever the issue is of interest to society as a whole and not just to the individuals involved.

Er... there is only the specific cases that make up the whole. If it is in the best interests of the individuals or each of them, than it is in the best interests of society.

Sorry, crappy phrasing. How about:

I prefer democratic solutions to technocratic solutions in cases where there is a public interest at stake in every individual case, and not just in the aggregate outcome of all cases.
______

For example:
1) There is no public interest in the outcome of a single surgical operation, because it affects only the patient and the circle of people immediately around them. There is a public interest in the aggregate outcome of surgeries, but none that justifies stepping in and say "you must do this surgery this way, regardless of whether it's best in this specific case, because we don't want you to set a bad precedent."

Therefore, the case can be reduced entirely to factors that a technocrat can easily keep track of, and does, which is where surgeons come in. Since there are advantages to technocracy, and since the disadvantages are reduced in a situation where the public interest is not at stake, I expect technocracy to work well here, and it does.

2) There is a public interest in the outcome of every court trial, because each trial sets or alters the precedents used in all future trials. The very fact that someone did things one way last week makes it more likely that things will happen that way next week, regardless of whether it was right or wrong to do things that way.

Therefore, I deem it worthwhile to give a good chunk of the responsibility for every court case to a democratic body, subject to technocratic review.

Come to think of it, I'd also be OK with a technocratic body subject to democratic review. So if you're willing to support the election and recall of judges, I'll play along with the idea of using panels of judges to make conviction decisions.
________

Don't lawyers do that now?

Not as hard as they might. I could imagine much higher levels of mocking and derision than typical lawyers throw at typical nonlawyers.
________

So let me get this straight you are arguing - against a proven idea that works in the majority of the western world and which has never developed into any kind of horror scenario you describe - on the basis of a hypothetical? Are you serious?

I didn't say that judge-panel systems don't work. I said that I don't expect them to work better than a jury system will work if you don't go out of your way to fuck up the selection process. I think the flaw in jury systems is not "they inherently suck by nature." I think the flaw is that there are major flaws in how we implement the process, flaws that have become far worse in the past few decades. If the system still doesn't work after the obvious glaring flaws are fixed, then I'll have to reconsider my position.

Maybe I'm wrong and panels are better than juries. But to know that, I have to compare good panels to good juries, not to bad juries.
________

The selection process is controlled by people who have a vested interest in creating a dysfunctional system: trial lawyers.

You are seriously misrepresenting many trial lawyers I know.

Am I? Trial lawyers have a vested interest in winning cases. To win cases, it is in their interest to pick jurors they can easily sway. But picking the most easily swayed jurors breaks the jury system, because it increases the average level of bias and irrationality in the jury. A good jury would at the least be a representative sample of the population- hardheaded rationalists who are two standard deviations off the average one way would be as common as softheaded sentimentalists who are two standard deviations off the other way. But it's not, because the people on the 'hard' end of the scale get knocked off by trial lawyers who don't want a skeptical jury.

Of course, ideally they want a jury skeptical of the opponent's arguments and easily swayed by their own. But in practice, with two opposing trial lawyers, the goals are likely to cancel out. And since both sides want a jury they can sway easily more than they want a jury their opponent cannot sway easily... that's exactly what they get. They get a jury full of gullible idiots, and it undermines the system.

[Thanas]

Why would a judge be any better at not resulting in a false conviction? Even if only one of the jurors is convinced you are innocent, you can't be convicted.

That is wrong. In most cases, the majority verdict is enough to convict you.

In any case, a panel of judges is clearly superior IMO. Not only do they know the law, most of them also know the tricks used by lawyers and prosecutors. So yeah, they should be the ones selected.

I am referring specifically to the U.S. as that is what I know. I should have been more specific. In the U.S. you must have a unanimous jury for a conviction.

You are wrong. A 10-2 margin is sufficient for conviction for example in Oregon. And it is not just criminal cases - in civil cases a majority opinion is enough to decide a case.

One of the major reasons for laypersons to be in a jury (not the "smart people avoided" juries the U.S. has today) is as a protection against unjust laws. Alcohol prohibition in the U.S. ended in large part because juries were refusing to convict offenders. I have no doubt that the "smart people avoidance system" of jury selection today is specifically designed to prevent jury nullification. It should be noted that many judges in the U.S. are elected and don't necessarily have any legal training or knowledge of the law beyond a layperson anyway. I certainly would agree that the current system is in need of an overhaul but I see no reason why a jury system with juries comprised of rational and reasonably intelligent laypersons (which the U.S. currently doesn't do) should be replaced outright.

Judges in Germany still can use several general clauses as protections against unjust laws and even can directly refer a case to the Constitutional Court if they feel it violates just punishment standards. I see no reason why juries are inherently more capable of showing leniency than judges.

There are some situations where a technocracy does work better- usually ones where you can separate the goal to be achieved from the state of society at large. If you want to fly to the moon, you need a technocratic program governed by the limits of what is physically possible.

But if you want good government, trusting any self-selecting cadre to give it to you strikes me as a bad idea. Self-selecting cadres have a poor track record, and I don't entirely trust anyone who asks for power saying "this time, we'll do it right, even though groups like us who tried it before failed."

Who says the judges would be self-selecting? In fact, they are not.

I didn't say that judge-panel systems don't work. I said that I don't expect them to work better than a jury system will work if you don't go out of your way to fuck up the selection process. I think the flaw in jury systems is not "they inherently suck by nature." I think the flaw is that there are major flaws in how we implement the process, flaws that have become far worse in the past few decades. If the system still doesn't work after the obvious glaring flaws are fixed, then I'll have to reconsider my position.

Maybe I'm wrong and panels are better than juries. But to know that, I have to compare good panels to good juries, not to bad juries.

The very way a jury system is designed encourages a race to the bottom. Saying "there are no good juries anywhere" is rather the most damning indictment one can think off, especially considering there are good judges in existence.

Am I? Trial lawyers have a vested interest in winning cases. To win cases, it is in their interest to pick jurors they can easily sway. But picking the most easily swayed jurors breaks the jury system, because it increases the average level of bias and irrationality in the jury. A good jury would at the least be a representative sample of the population- hardheaded rationalists who are two standard deviations off the average one way would be as common as softheaded sentimentalists who are two standard deviations off the other way. But it's not, because the people on the 'hard' end of the scale get knocked off by trial lawyers who don't want a skeptical jury.

Of course, ideally they want a jury skeptical of the opponent's arguments and easily swayed by their own. But in practice, with two opposing trial lawyers, the goals are likely to cancel out. And since both sides want a jury they can sway easily more than they want a jury their opponent cannot sway easily... that's exactly what they get. They get a jury full of gullible idiots, and it undermines the system.

I once did an internship with one of the best criminal lawyers in the whole USA, who has got two Supreme Court wins under his belt. Guess what his opinion of juries was - he loathed them. Either he had 12 idiots who didn't have the intelligence to follow arguments or the jury selection failed to hide some flaws. So I wouldn't be too surprised if a significant percentage of trial lawyers didn't like the jury system anyway.

[General Zod]

You are wrong. A 10-2 margin is sufficient for conviction for example in Oregon. And it is not just criminal cases - in civil cases a majority opinion is enough to decide a case.

Doesn't this depend entirely on the state and the crime? I'm pretty sure the vote margin for a conviction is variable throughout the country.

[Thanas]

You are wrong. A 10-2 margin is sufficient for conviction for example in Oregon. And it is not just criminal cases - in civil cases a majority opinion is enough to decide a case.

Doesn't this depend entirely on the state and the crime? I'm pretty sure the vote margin for a conviction is variable throughout the country.

Yes, but that is why exactly the statement "all criminal cases do require unanimous verdicts" is wrong.

[Lord Insanity]

You are wrong. A 10-2 margin is sufficient for conviction for example in Oregon. And it is not just criminal cases - in civil cases a majority opinion is enough to decide a case.

Doesn't this depend entirely on the state and the crime? I'm pretty sure the vote margin for a conviction is variable throughout the country.

Yes, but that is why exactly the statement "all criminal cases do require unanimous verdicts" is wrong.

Point conceded. I didn't realize some States don't require a unanimous verdict. So much for that protection of a jury trial. I have still seen far too many stupid judicial rulings for me to wholly trust a judge or even an panel of them as much as you seem to. My previously mentioned example (of a judge not exonerating someone even though DNA clearly proved them innocent after the fact) isn't exactly an isolated incident in the U.S.

[JBG]

Because at the very least, twelve people are less likely to all want to convict the same guy because he's "a criminal type." Not least because if your selection process doesn't actively suck, one or two of them is likely to be of that same type.

This is no reason to have a trial by jury - I have never met a judge (and I meet plenty regularly) who wanted to convict someone because he's a "criminal type". At least not in Germany

So hey, try this once more - why are laymen favorable to professionals?

n the American version, of course, the selection process can suck enough that this is actually possible- the prosecutor can in theory drop everyone they deem unlikely to be swayed by the fact that the defendant is an "obvious criminal type" or whatever. But that's a flaw in the selection and screening process.

If, of course, we assume that all judges are necessarily far more unbiased than the average member of society, this falls apart. But I don't expect that to be true. It's damnably hard to suppress bias by finding one unbiased person. I prefer a method that at least has a hope of working in statistical terms to one that I don't expect to work at all.

Then you don't know enough about judges. They are trained to be impartial and to spot illegal lawyering. Your argument has no merit.

I consider the use of professional judges and no juries to be a technocratic solution- rule by the people who have some specific block of knowledge.

I am curious - do you believe that letting historians chose what to write is also a technocratic solution because they have some specific block of knowledge? What about engineers? We routinely let our lives be run by people who have some idea what they are doing. I fail to see how this is especially technocratic.

In the general case, I prefer democratic solutions to technocratic solutions wherever the issue is of interest to society as a whole and not just to the individuals involved. With juries, the outcome of the trial is of private interest, but the outcome of trials in general is a critical public interest. What kind of things can get you convicted in court matters to everyone, so I'd prefer to trust it to everyone than trust it to technocracy.

Lawyers write the laws, laywers chose who to charge with what, lawyers make all the relevant arguments. The process is already technocratic.

And please explain how it is undemocratic if you have democratically confirmed judges and prosecutors.

Speaking generally, I don't trust technocrats. Most historical groups that claim(ed) that their professional knowledge and abilities gives them better standing to set policy than the aggregate of the public made a lot of decisions that were, in my eyes, wrong. I don't expect us to be better off for giving them another chance.

Generalization fallacy and a false dilemma to boot. It is also deeply wrong - you first have to demonstrate that layman would have made better decisions in the first place.

Why? You are spouting a lot of stuff, but you never explain why a jury composed of laymen and professionals is superior to a panel entirely composed of professionals. It is not like in the past anymore where lawyers all came from a certain class.

Among other things, I don't know what future classes will look like.

That's a bad argument to make. I don't know if I will die tomorrow, does that I mean I should not go out today?

Maybe in a century, society will be sharply divided into classes along intellectual lines, with all the lawyers being drawn from a category of people who really love secondary education, spend lots of time on the future equivalent of online forums debating, and so on. Everybody else still has rights, but... what would the odds be of those rights being respected if most future judges spent all their time in small insular communities that get a kick out of sneering at everyone who isn't a member?

So let me get this straight you are arguing - against a proven idea that works in the majority of the western world and which has never developed into any kind of horror scenario you describe - on the basis of a hypothetical? Are you serious?

Or maybe the government will go libertarian and poor people won't be able to afford to go to law school anymore. Or maybe this recession will hit us so hard that the government won't be able to afford to help poor people go to law school anymore, libertarian or not. I have absolutely no idea.

More hypothetical nonsense.

So I'd like my system to insure against that by selecting the people who convict citizens without regard to any possible class lines. Unfortunately, that's not what we have, because right now the system is stacked to select jurors from the classes least suitable to the task. The selection process is controlled by people who have a vested interest in creating a dysfunctional system: trial lawyers.

You are seriously misrepresenting many trial lawyers I know.

Thanas, you've nailed it there. I doubt many on this thread have any legal qualifications or experience dealing with the administration of justice. And to ward off the obvious protestations, how can one, for instance Simon, comment on systems that one apparently knows little about.

[PeZook]

The funny thing is there are perfectly functional democratic countries which do not have a trial by jury. Somehow, they do not hand out an egrerious amount of unjust decisions...

[Serafina]

The funny thing is there are perfectly functional democratic countries which do not have a trial by jury. Somehow, they do not hand out an egrerious amount of unjust decisions...

It's not that a system with jurys can not work - but a system without them works better.

To summarize it:

The only argument FOR jurys is redundancy - having multiple people involved in the decision process gives you a higher chance of detecting flaws.
However, this can be done with multiple judges, as well. While you can not do that for every trial, most trials are pretty straight-forward and can be handled by a single judge.
Also, there are systems where you can call upon another court or get a retrial.

There are a lot of arguments against jurys:
-They are making the whole process more complicated, offering more possiblities for errors.
-Given that a jury constists of laypeople, they can easily be influenced to believe a certain thing - they are way more suspectible to fall for certain tricks.
-They are more prone to "follow their stomach" - they will make decisions because they feel that the person is guilty/not guilty, not because they have been logically convinced of it.

Jurys add nothing but bureaucracy and possbile errors, and everything that can be done by jurys can be done by educated people.

[Simon_Jester]

The funny thing is there are perfectly functional democratic countries which do not have a trial by jury. Somehow, they do not hand out an egrerious amount of unjust decisions...

Yes. Panel systems work. I do not deny it.

Panel systems work better than 2009-style American jury selection. I do not deny that either.

I do deny that panel systems are better than jury systems in the general case or in an abstract sense, regardless of how we go about picking juries. They're better than bad juries, yes, but that doesn't make them better than good ones.
________

But if you want good government, trusting any self-selecting cadre to give it to you strikes me as a bad idea. Self-selecting cadres have a poor track record, and I don't entirely trust anyone who asks for power saying "this time, we'll do it right, even though groups like us who tried it before failed."

Who says the judges would be self-selecting? In fact, they are not.

I was talking about technocracy in general, not judges in particular. But if your system includes the election and recall of judges, then I'll compromise on the jury vs. panel of judges issue.

On the other hand, if your process for selecting judges is "they are selected for life by elected officials," then I don't like the idea. In that context, the public has little recourse against an unreasonably harsh judge, and nothing to replace jury nullification as a way of resisting unjust laws.
______

The very way a jury system is designed encourages a race to the bottom. Saying "there are no good juries anywhere" is rather the most damning indictment one can think off, especially considering there are good judges in existence.

I think that depends heavily on who's responsible for jury selection. Making trial lawyers responsible for picking jurors (or kicking out jurors they don't want) was a truly foolish idea. But that's not the only way to organize the system.
______

I once did an internship with one of the best criminal lawyers in the whole USA, who has got two Supreme Court wins under his belt. Guess what his opinion of juries was - he loathed them. Either he had 12 idiots who didn't have the intelligence to follow arguments or the jury selection failed to hide some flaws. So I wouldn't be too surprised if a significant percentage of trial lawyers didn't like the jury system anyway.

I'm not saying they like the system. I'm saying that giving them power to knock out jurors was a bad idea, because it makes the system more likely to select against the kind of people that everyone agrees should be on juries in the abstract. The lawyers are going to select against people who wouldn't annoy that excellent criminal lawyer, because such people are smart enough to follow arguments and think of the awkward questions.

I doubt anyone would like having to put up with a jury of idiots, but a trial lawyer's goal is to fight for their side of the case. What can they do except try to find the people who will be most easily swayed to their side, even if they're idiots?

[Thanas]

The funny thing is there are perfectly functional democratic countries which do not have a trial by jury. Somehow, they do not hand out an egrerious amount of unjust decisions...

Yes. Panel systems work. I do not deny it.

Panel systems work better than 2009-style American jury selection. I do not deny that either.

I do deny that panel systems are better than jury systems in the general case or in an abstract sense, regardless of how we go about picking juries. They're better than bad juries, yes, but that doesn't make them better than good ones.

Listen to me. Your wall of ignorance is only carrying you so far. There is a huge list of reasons mentioned in this post - address them. Hell, Serafina was even kind enough to list them in her post.

I was talking about technocracy in general, not judges in particular. But if your system includes the election and recall of judges, then I'll compromise on the jury vs. panel of judges issue.

On the other hand, if your process for selecting judges is "they are selected for life by elected officials," then I don't like the idea. In that context, the public has little recourse against an unreasonably harsh judge, and nothing to replace jury nullification as a way of resisting unjust laws.

I guess Germany must be swarming with unjust judges and laws. Oh wait, it doesn't.

I think that depends heavily on who's responsible for jury selection. Making trial lawyers responsible for picking jurors (or kicking out jurors they don't want) was a truly foolish idea. But that's not the only way to organize the system.

Whatever way you come up with, it still is not going to measure up to the continental legal system.

So please address those points. Because your debating style is getting a bit annoying.

[Alyrium Denryle]

I do deny that panel systems are better than jury systems in the general case or in an abstract sense, regardless of how we go about picking juries. They're better than bad juries, yes, but that doesn't make them better than good ones.

You are a layperson who actually resents the people more equipped to make a decision than you. You are one of the reasons why Juries are inferior.

The abstract case is meaningless and you need to learn better risk assessment skills. Consider this. A panel of professional jurors (or a triumvirate of judges) has a variable but consistently low chance of getting an incorrect verdict. Juries range from being very poor at weighting evidence (as tends to happen in US juries) to being very very good at it (the rare case when there are a few educated people on a jury), and the variation in between is wide.

What do you do? The best option is to take the panel, almost regardless of the chance of getting a good jury, because the variance, and thus risk is reduced.

So, how can I claim that a professional jury will be better at weighing evidence? Because they have a specific block of knowledge that allows them to do so. The very thing you decry as "technocratic" is the best way to reduce the risk of a false verdict. For example: The most unreliable evidence is eye witness testimony. A lay person finds this evidence the most compelling, while a professional knows that it is nearly useless for determining actual truth. The average layperson's eyes glaze over when someone starts talking about DNA, or the methods used to obtain a particularly difficult piece of forensic evidence. A professional, with a specific subset of knowledge, eats up that much more reliable evidence. Moreover they are less likely to be swayed by emotional appeals and identification with either party in the case, specifically because they will be trained to tune that crap out.

What exactly is it that a jury brings to the table? Some idealistic and far fetched resistance against class warfare? Give me a god damn break.

I was talking about technocracy in general, not judges in particular. But if your system includes the election and recall of judges[snip]

Why? What makes the public better equipped to decide issues of law than one trained in law? Laypeople are not equipped to evaluate the decision of a panel of judges based upon any more than their own prejudices, and your proposal would make judges and their rulings political theater for elected officials, and interfere with proper legal rulings because judges would want to keep their jobs.

[Simon_Jester]

Listen to me. Your wall of ignorance is only carrying you so far. There is a huge list of reasons mentioned in this post - address them. Hell, Serafina was even kind enough to list them in her post.

Here goes:

To summarize it:
The only argument FOR jurys is redundancy - having multiple people involved in the decision process gives you a higher chance of detecting flaws.

I already addressed this in short form:

2) There is a public interest in the outcome of every court trial, because each trial sets or alters the precedents used in all future trials. The very fact that someone did things one way last week makes it more likely that things will happen that way next week, regardless of whether it was right or wrong to do things that way...

But to expand on that:
Therefore, in my eyes Serafina is wrong and there are, at the least, two arguments FOR juries. The first is that they provide redundancy. The second is that they're there to serve as participating representatives of the public on the court.

This advantage becomes less relevant if judges are held directly accountable to the public, which is why I'd be willing to compromise on replacing juries with panels if judges were subject to elective recall. Or what the hell, even if they were subject to periodic review by the legislature. As long as some representative sample or delegate of the public is in a position to monitor the courts and actually do something about a perceived injustice.
_______

There are a lot of arguments against jurys:
(1)-They are making the whole process more complicated, offering more possiblities for errors.
(2)-Given that a jury constists of laypeople, they can easily be influenced to believe a certain thing - they are way more suspectible to fall for certain tricks.
(3)-They are more prone to "follow their stomach" - they will make decisions because they feel that the person is guilty/not guilty, not because they have been logically convinced of it.

(1) is unanswerable. Juries make courts more complicated; it's true. Of course, "this thing makes the process more complicated" is neither a necessary nor a sufficient reason not to do it. There are a lot of very bad ways to simplify the process of a trial. But added complexity is an undeniable disadvantage of the jury system.
_______

(2) is true, but it raises a question: why are those tricks valid tactics in court in the first place? We can say that judges are trained to recognize and ignore them, but are they really immune to nonlogical persuasion? Personally, I find it hard to believe. Even if it's true, that places a very heavy burden on the judge; being human, they're likely to drop the burden now and then.

I submit that the solution to (2) is to limit the tactics acceptable in court, and to punish lawyers for knowingly trying to game their audience, regardless of whether the audience is a panel of judges or a jury. If a judge has no inclination to listen to a bunch of irrational nonsense, why should the judge tolerate such nonsense when it is directed at the jury? In any court system, the judge will have to referee what kinds of arguments are valid and what kind are unacceptable. Removing the jury will not remove this burden from the judge.

So my reply to (2) is that this weakness of juries is not unique to juries, even if juries have more of it than judges. The court already needs a set of rules to govern what kinds of arguments and evidence lawyers are allowed to use. If those rules aren't flawed, it will be hard for lawyers to manipulate the jury very much. If they are flawed, then replacing the jury with a panel of judges may not make as much difference as we'd like to think.

If your juries are being easily manipulated by your trial lawyers to convict without evidence or to exonerate when the evidence is overwhelming, it's a sign that you're using the system improperly.
_______

With respect to (3), in complex cases I'm honestly not sure that's as bad or unusual a thing as we'd like to think. If the case is nontrivial, there are always going to be questions about how much importance to assign to given pieces of evidence. Is the fact that the defendant has an alibi more important than the fact that two eyewitnesses reported him at the scene? How reliable is the alibi? How reliable are the eyewitnesses?

Even if you are the hypothetical ideal judge who applies perfectly logical reasoning to all questions, can you really resolve these questions logically, using an unassailable deductive process? Sooner or later, your answer will have to depend on how much weight you assign to various bits of evidence. And when that point is reached, your assessment will always depend on assessment of personality and on what amounts to gut feeling.

The only cases where one side can make a truly ironclad case with logic alone are the ones that are utterly trivial, where all evidence and significant arguments line up on the same side. And those are the easy ones, the ones that even laymen are virtually sure to get right. The ones where the evidence is trickier, because there are multiple pieces on both sides? Those are the ones where even the professionals will be hard pressed to make their decision based purely on whether they've been "logically convinced."

Replacing the lay jury with professionals won't guarantee that difficult court cases will be resolved by pure, unassailable reason. Therefore, disadvantage (3) is not removable and will exist in substantial form even if we use panels instead of juries. A disadvantage present in both systems to different degrees isn't necessarily a strong argument in favor of one over the other.
________

I do not believe that Serafina's three stated disadvantages outweigh the two advantages of jury trials, especially the second one.

=====

I guess Germany must be swarming with unjust judges and laws. Oh wait, it doesn't.

Of course not.

You can leave a machine running with the safety guards off for quite a long time with nothing bad happening, and governments are no exception to that rule. But governmental machines that I perceive as having inadequate safeguards bother me for reasons I've already described. That doesn't mean they don't work. That doesn't even mean they aren't preferable to the piece of crap I've got over at my place, which has safeguards but does not work. But if I had my choice of machine to use for the purpose, I'd pick the one with the safeguards.

[Thanas]

I find it quite galling that the idiot continues even after Alyrium explained it in nice, easy to understand words. But oh well, here we go again...

But to expand on that:
Therefore, in my eyes Serafina is wrong and there are, at the least, two arguments FOR juries. The first is that they provide redundancy.

So do several judges and appellate courts. Both which are far more superior to laypeople.

The second is that they're there to serve as participating representatives of the public on the court.

Why do you need one of those in the first place? The public has an interested in the outcome of a trial, but that does not mean it has to participate in it. In fact, what advantages does the public have?

This advantage becomes less relevant if judges are held directly accountable to the public, which is why I'd be willing to compromise on replacing juries with panels if judges were subject to elective recall. Or what the hell, even if they were subject to periodic review by the legislature. As long as some representative sample or delegate of the public is in a position to monitor the courts and actually do something about a perceived injustice.

Why should they be unable to regulate themselves?

(1) is unanswerable. Juries make courts more complicated; it's true. Of course, "this thing makes the process more complicated" is neither a necessary nor a sufficient reason not to do it.

Anything that makes a process more complicated is a very bad thing. I think you should be smart enough to actually realize this?

(2) is true, but it raises a question: why are those tricks valid tactics in court in the first place? We can say that judges are trained to recognize and ignore them, but are they really immune to nonlogical persuasion? Personally, I find it hard to believe. Even if it's true, that places a very heavy burden on the judge; being human, they're likely to drop the burden now and then.

You are an idiot. Yes judges can fall for tricks. But they are less likely to do so than an untrained layperson. Quit semantic whoring and answer that point, idiot.

I submit that the solution to (2) is to limit the tactics acceptable in court, and to punish lawyers for knowingly trying to game their audience, regardless of whether the audience is a panel of judges or a jury. If a judge has no inclination to listen to a bunch of irrational nonsense, why should the judge tolerate such nonsense when it is directed at the jury? In any court system, the judge will have to referee what kinds of arguments are valid and what kind are unacceptable. Removing the jury will not remove this burden from the judge.

How old are you? Have you ever been in a trial? It doesn't matter if a judge tells a jury to disregard something, the implication has already been made and the damage done. If I tell a jury in a civil case that my opponent has already been convicted of child molestation, do you really think the jury will disregard that 100%? Because a judge is trained to do so.

Also, a judge is accountable if he screws up. Juries are not under normal circumstances.

So my reply to (2) is that this weakness of juries is not unique to juries, even if juries have more of it than judges. The court already needs a set of rules to govern what kinds of arguments and evidence lawyers are allowed to use. If those rules aren't flawed, it will be hard for lawyers to manipulate the jury very much. If they are flawed, then replacing the jury with a panel of judges may not make as much difference as we'd like to think.

Are you an idiot? Of course it will matter.

If your juries are being easily manipulated by your trial lawyers to convict without evidence or to exonerate when the evidence is overwhelming, it's a sign that you're using the system improperly.

Or it is a sign of a broken system.

With respect to (3), in complex cases I'm honestly not sure that's as bad or unusual a thing as we'd like to think. If the case is nontrivial, there are always going to be questions about how much importance to assign to given pieces of evidence. Is the fact that the defendant has an alibi more important than the fact that two eyewitnesses reported him at the scene? How reliable is the alibi? How reliable are the eyewitnesses?

Even if you are the hypothetical ideal judge who applies perfectly logical reasoning to all questions, can you really resolve these questions logically, using an unassailable deductive process? Sooner or later, your answer will have to depend on how much weight you assign to various bits of evidence. And when that point is reached, your assessment will always depend on assessment of personality and on what amounts to gut feeling.

Are you an idiot? You just justified that following your stomach is a good thing in a trial. That is the wrong answer. If the evidence does not fit, you do not follow your stomach. At least not as a judge. You declare that the evidence does not fit and then you judge the case on the existing evidence. And the assesment is not based on gut feeling, at least you are trained not to follow your gut but what is logical.

The only cases where one side can make a truly ironclad case with logic alone are the ones that are utterly trivial, where all evidence and significant arguments line up on the same side. And those are the easy ones, the ones that even laymen are virtually sure to get right.

I have seen my fair share of allegedly ironclad murder trials. You are wrong. And judges are far more likely to come to the correct conclusion anyway, so why don't you address that point instead of weaseling out of it?

The ones where the evidence is trickier, because there are multiple pieces on both sides? Those are the ones where even the professionals will be hard pressed to make their decision based purely on whether they've been "logically convinced."

Replacing the lay jury with professionals won't guarantee that difficult court cases will be resolved by pure, unassailable reason. Therefore, disadvantage (3) is not removable and will exist in substantial form even if we use panels instead of juries. A disadvantage present in both systems to different degrees isn't necessarily a strong argument in favor of one over the other.

So...it doesn't matter that one side is far less likely to make mistakes, you just decide that since both have mistakes, there's nothing to be done about it. The degree in which those mistakes occur doesn't matter.

I do not believe that Serafina's three stated disadvantages outweigh the two advantages of jury trials, especially the second one.

Why not?

I guess Germany must be swarming with unjust judges and laws. Oh wait, it doesn't.

Of course not.

You can leave a machine running with the safety guards off for quite a long time with nothing bad happening, and governments are no exception to that rule. But governmental machines that I perceive as having inadequate safeguards bother me for reasons I've already described. That doesn't mean they don't work. That doesn't even mean they aren't preferable to the piece of crap I've got over at my place, which has safeguards but does not work. But if I had my choice of machine to use for the purpose, I'd pick the one with the safeguards.

Listen, idiot, I have been pretty patient. But it is quite clear that you have no idea how trials really function. It is also quite clear you have no idea on how the continental or the german system is run. In short, you are shooting off your mouth about things you do not comprehend and things you didn't even bother to read up on before making these kinds of arguments.

Also, having you describe the german system as a governmental machine with inadequate safegurads that will inevitably collapse is pretty insulting, considering my justice system works and having worked in both, my system is quite superior.

So I advice you to be concede now. Otherwise this will get unpleasant for you and truthfully I have no taste for that. But if nice words won't get through your thick skull, maybe insults will.

[Serafina]

To summarize it:
The only argument FOR jurys is redundancy - having multiple people involved in the decision process gives you a higher chance of detecting flaws.

I already addressed this in short form:

2) There is a public interest in the outcome of every court trial, because each trial sets or alters the precedents used in all future trials. The very fact that someone did things one way last week makes it more likely that things will happen that way next week, regardless of whether it was right or wrong to do things that way...

But to expand on that:
Therefore, in my eyes Serafina is wrong and there are, at the least, two arguments FOR juries. The first is that they provide redundancy. The second is that they're there to serve as participating representatives of the public on the court.

What do you mean by "public interest", anyway? Sure, it will affect further trials and influence society by this - but HOW is this an argument for juries?
I guess you mean that if it affects "public interests", you need to have random people from the street in the decision process, because its democratic. And democratic decisions are always better, right?

Wrong. The public is TERRIBLE at making educated decisions. By your logic, we would put random people from the street in engineering boards designing bridges and water supplies - after all, they affect "public interests".
You simply appeal to democracy (is there a fallacy for this?) without explaining how this makes for better decisions.

This advantage becomes less relevant if judges are held directly accountable to the public, which is why I'd be willing to compromise on replacing juries with panels if judges were subject to elective recall. Or what the hell, even if they were subject to periodic review by the legislature. As long as some representative sample or delegate of the public is in a position to monitor the courts and actually do something about a perceived injustice.

Are you nuts? HOW are judges not responsible for their decisions? They may not be selected by direct votes from the public - but this is just the same failed logic you used for your previous argument.
Or would you select an engineering board with public elections? Including a full-scale elective campaings?
Well, im sure its important to have charismatic, rather than competent, engineers (or judges).

There are a lot of arguments against jurys:
(1)-They are making the whole process more complicated, offering more possiblities for errors.
(2)-Given that a jury constists of laypeople, they can easily be influenced to believe a certain thing - they are way more suspectible to fall for certain tricks.
(3)-They are more prone to "follow their stomach" - they will make decisions because they feel that the person is guilty/not guilty, not because they have been logically convinced of it.

(1) is unanswerable. Juries make courts more complicated; it's true. Of course, "this thing makes the process more complicated" is neither a necessary nor a sufficient reason not to do it. There are a lot of very bad ways to simplify the process of a trial. But added complexity is an undeniable disadvantage of the jury system.
_______

(2) is true, but it raises a question: why are those tricks valid tactics in court in the first place? We can say that judges are trained to recognize and ignore them, but are they really immune to nonlogical persuasion? Personally, I find it hard to believe. Even if it's true, that places a very heavy burden on the judge; being human, they're likely to drop the burden now and then.

I submit that the solution to (2) is to limit the tactics acceptable in court, and to punish lawyers for knowingly trying to game their audience, regardless of whether the audience is a panel of judges or a jury. If a judge has no inclination to listen to a bunch of irrational nonsense, why should the judge tolerate such nonsense when it is directed at the jury? In any court system, the judge will have to referee what kinds of arguments are valid and what kind are unacceptable. Removing the jury will not remove this burden from the judge.

So my reply to (2) is that this weakness of juries is not unique to juries, even if juries have more of it than judges. The court already needs a set of rules to govern what kinds of arguments and evidence lawyers are allowed to use. If those rules aren't flawed, it will be hard for lawyers to manipulate the jury very much. If they are flawed, then replacing the jury with a panel of judges may not make as much difference as we'd like to think.

If your juries are being easily manipulated by your trial lawyers to convict without evidence or to exonerate when the evidence is overwhelming, it's a sign that you're using the system improperly.

If there is NO JURY, there is no audience to influence in the first place! A judge is trained to think rationally, making him vastly more resistant to all those logical fallacies and appeals some lawyers apparently spout in the US.
I never saw something like this in german courts (granted, i only saw two trials)

With respect to (3), in complex cases I'm honestly not sure that's as bad or unusual a thing as we'd like to think. If the case is nontrivial, there are always going to be questions about how much importance to assign to given pieces of evidence. Is the fact that the defendant has an alibi more important than the fact that two eyewitnesses reported him at the scene? How reliable is the alibi? How reliable are the eyewitnesses?

Even if you are the hypothetical ideal judge who applies perfectly logical reasoning to all questions, can you really resolve these questions logically, using an unassailable deductive process? Sooner or later, your answer will have to depend on how much weight you assign to various bits of evidence. And when that point is reached, your assessment will always depend on assessment of personality and on what amounts to gut feeling.

The only cases where one side can make a truly ironclad case with logic alone are the ones that are utterly trivial, where all evidence and significant arguments line up on the same side. And those are the easy ones, the ones that even laymen are virtually sure to get right. The ones where the evidence is trickier, because there are multiple pieces on both sides? Those are the ones where even the professionals will be hard pressed to make their decision based purely on whether they've been "logically convinced."

Replacing the lay jury with professionals won't guarantee that difficult court cases will be resolved by pure, unassailable reason. Therefore, disadvantage (3) is not removable and will exist in substantial form even if we use panels instead of juries. A disadvantage present in both systems to different degrees isn't necessarily a strong argument in favor of one over the other.

Thats why we have RULES how to weight various pieces of evidence. Sure, judges are not infalliable, but unlike a jury, they are trained and can learn from errors.
To give you an example: Apparently there was a time where DNA evidence was seen as an nearly infalliable piece of evidence and where error margins were misunderstood - even by judges.
Of course, this was the case when it was something completly new - but the judges learned and got better.
But someone serving in a jury is unlikely to have any previous experience. The only way you can get experience is by DOING something - and your jury wont do that very often.

Even if we would take your ridiculious "stomach feeling" point of view (because emotions are totally infalliable!!), a judge will have more experience with it than a jury - because the jury is bloody inexperienced.


Face it: A bunch of untrained people is just worse than highly trained professionals. The only way for them to be better is sheer, dumb luck and very, very good circumstances - and you do not build a system on such principles.

[Simon_Jester]

Thanks to Serafina and Thanas, I now think there's a good way to replace juries with something better. But since the natural flow of the debate puts it at the very bottom of my post, I'm putting it here:

You simply appeal to democracy (is there a fallacy for this?) without explaining how this makes for better decisions.

I want not only good decisions, but assurance that I am not at the mercy of the first petty tyrant to make his way into the group of deciders. As a way of securing this for the courts, juries are... suboptimal. I'd rather scrap the juries BUT enact a system of election and recall of judges, now that I think about it, which this discussion has led me to do.

Since there's an obvious concern about making sure judges have professional qualifications, I suggest that nominations be closed to the public. I'm not sure who should nominate them; someone who's in a good position to identify unprofessional judges and simply not nominate them in the first place, so that no matter who gets elected you have someone competent on the court.
________

I get the feeling that this option will not be more palatable than juries to Serafina or Thanas, but I certainly like it better than any jury system I'm likely to see this side of Utopia.

========

So I advice you to be concede now. Otherwise this will get unpleasant for you and truthfully I have no taste for that. But if nice words won't get through your thick skull, maybe insults will.

I submit that this is unlikely. Most insults that can be aimed at me are factually wrong, and I can prove that they're wrong to my own satisfaction quite easily. Therefore, they will not change anything about my opinions that is important or lasting.

By contrast, your actual arguments are pretty good. They're just not so wonderfully good that they have convinced me to change the weighting vector I use to compare the relative merits of government systems. If you wish to convince me that the German system works better than the American system, you have already done so. I'd even agree to replace the American system with the German system, because it works so much better. That part of your mission is accomplished.

If you wish to convince me that panel systems are categorically superior to jury systems by necessity, you're going to have to change my weighting vector. Which would require arguments of truly unusual quality, of the kind that would establish you as a famous figure in the history of jurisprudence and constitutional theory.

When you compare a good panel system that works about as well as people can make it work to a bad jury system that any random clown can think of improvements for, of course the panel system will win. That doesn't prove much to me.
_____________

The second is that they're there to serve as participating representatives of the public on the court.

Why do you need one of those in the first place? The public has an interested in the outcome of a trial, but that does not mean it has to participate in it. In fact, what advantages does the public have?

If they don't participate, then those who do had damn well better be accountable to them... which brings us back to election and recall of judges.

Setting up unaccountable and inaccessible power blocs does not strike me as a good way to secure the public interest, and I don't believe governments (or judiciaries) have any other justification for existing. You may despise the general public, but if you're a government they're your boss. I don't normally get to tell my boss to shut up and leave me alone, and there are good reasons for that, even if I can't always bring myself to admit they're there.

People forget aspects of what they're supposed to be doing. They develop target fixation and wind up with screwed up priorities. They start ignoring appalling aspects of whatever it is they're doing. It's not just something that happens to random clowns, either. It happens to educated professionals. For any given group of people with power that can be misused, someone has to be able to keep an eye on them to make sure they don't start falling into these little cul de sacs of failure and abuse of power.

Nobody likes it. Everyone thinks "Not me, I won't screw up without oversight. Only those stupid people over there would mess up that way!" And everyone is wrong, or nearly everyone, with no way to pick out the unique special exceptions. Even famously incorruptible people can catch a brainbug, start abusing their power, and have to be brought down. Everyone has to be watched by someone.

Some communities manage fairly well with self-policing (scientists), but other groups trusted to self-police will betray that trust in very imaginative ways (aristocrats). Self-policing is not reliable. Other-policing is necessary. Who polices a government? Ultimately, it has to be the public. Which means giving the public windows onto what the government is doing and ways to influence its policy. Someone has to be the tribune.

And yes, the position of tribune can be misused too; he needs someone watching him just like everyone else.
_________

Anything that makes a process more complicated is a very bad thing. I think you should be smart enough to actually realize this?

If anything that makes a process more complicated is very bad, anything that makes a process less complicated ought to be good. But I can think of a lot of ways to simplify trials that would be unjust and useless if we're interested in any sane goal.

Some complications are excusable.
_________

You are an idiot. Yes judges can fall for tricks. But they are less likely to do so than an untrained layperson. Quit semantic whoring and answer that point, idiot.

The answer to the point is very simple: if judges can tell when they are being tricked and not fall for it, they can call bullshit when the jury is being tricked. If they cannot call bullshit when the jury is being tricked, then they themselves are falling for the trick, in which case the entire argument becomes moot because the judge's higher resistance will not save him from the lawyer's trick. This is going to be true regardless of whether a jury is present. Even if there is no jury, the judge must still be able to say "that argument is bullshit."

Therefore, flaw (2) with juries has a blindingly obvious solution: judges must be responsible for restraining lawyers from the use of bullshit, with the power to punish them if they do so.

If the judge is using this power competently, the lawyers will not be in a good position to bullshit the jury. Any possible bullshitting will be very limited, assuming the judge is not inclined to put up with bullshit... which is supposed to be one of their job qualifications.

Of course, if the judge does tolerate bullshit, then the situation gets messy, because as you observe one cannot unring a bell. A bullshitted jury remains bullshitted even after attempts to clean them off after the fact. But that leads into the case below:

If the judge is not using this power competently, removing the jury will do no good, because the judge is incompetent and unable to detect bullshit. A judge who cannot detect bullshit well enough to warn that it is being used cannot resist bullshit. Which makes the bullshit-resistance that they were taught to have irrelevant, because they obviously don't have it now.

We have three options:
-Judge fails to detect bullshit
In this case, the judge isn't going resist better than the jury, because he can't tell he's being tricked any better than the jury can.
-Judge detects bullshit and suppresses it
If the judge is good, this will be reliable, and the lawyers will not dare to try to use significant bullshit on the jury.
-Judge detects bullshit and does not suppress it
In this case, removing the jury would be an advantage... but what kind of judge knows the lawyer is bullshitting and doesn't do anything about it? If that's going on in your court, something is wrong with your court procedures whether the jury is present or not. Something that's liable to make serious trouble even after we remove the jury, such as a biased judge that accepts bullshit arguments from one side while blocking them from the other side.
__________

Are you an idiot? You just justified that following your stomach is a good thing in a trial. That is the wrong answer. If the evidence does not fit, you do not follow your stomach. At least not as a judge. You declare that the evidence does not fit and then you judge the case on the existing evidence. And the assesment is not based on gut feeling, at least you are trained not to follow your gut but what is logical.

This begs the question of how "on the existing evidence" is to be defined; in a nontrivial case that's going to be a question for inductive logic. If you follow your gut and say "does this person have a guilty face," you're doing something wrong. If your juries are dominated by people who do this, you've done something wrong in your selection process.

Or maybe I'm overestimating random people. If so, then I'm just remarkably lucky in the people I've met, to the point where all the idiots live elsewhere. So I'm missing out on most of the people who will consistently judge criminals by their guilty face and not by their alibi. That would surprise me, since I live near a city supposedly deluged with bullshit in a nation supposedly populated by fools. If the idiots don't live here, them I'm honestly amazed that the rest of the world hasn't managed to kill itself yet.
________

Why not?

Because unaccountable government officials bug me beyond all reason. If they do not similarly bug you, then obviously your different priorities will lead you to think differently.

I do not expect to be able to convince you that unaccountable government officials are a very bad idea if you do not already believe it. It would be a colossal waste of our time for me to try. This is a priorities thing.

If you have a better way to make courts accountable to the public than the use of juries (electing judges comes to mind), fine, let's use that.

============

What do you mean by "public interest", anyway? Sure, it will affect further trials and influence society by this - but HOW is this an argument for juries?
I guess you mean that if it affects "public interests", you need to have random people from the street in the decision process, because its democratic. And democratic decisions are always better, right?

If you can come up with a better way to get representatives of the public into the courts, which would otherwise be in essence the proceedings of the lawyers' guild, I'm all for it.

I suspect you can; I already have, and I'm being called a moron by people educated enough to know a moron when they see one. Unfortunately, election and recall of judges has disadvantages of its own, which I suspect are similarly unacceptable.
_______

Wrong. The public is TERRIBLE at making educated decisions. By your logic, we would put random people from the street in engineering boards designing bridges and water supplies - after all, they affect "public interests".

Ever been to one of the public meetings where they propose things like new highway plans? Giving the general population at least some chance to speak up before buildings start getting torn down is not that unusual an idea, and it isn't exactly a guaranteed recipe for disaster.

But seriously, there are better ways to secure the public interest in an engineering situation. Such as making it possible for elected officials to fire the engineers if the engineers start proposing stupid things. When judges can't be fired in this way, or are accountable only to unelected officials in their own right, I get nervous about the idea of making them solely responsible for conviction and punishment of criminals.
_________

You simply appeal to democracy (is there a fallacy for this?) without explaining how this makes for better decisions.

See top of post.

[Alyrium Denryle]

Therefore, in my eyes Serafina is wrong and there are, at the least, two arguments FOR juries. The first is that they provide redundancy. The second is that they're there to serve as participating representatives of the public on the court.

Why is that an advantage? If the public has an interest in the outcome of a trial, that interest is in the correctness of the outcome. To be consistent with this, they should, knowing that they are inferior arbiters of guilt or innocence, deliberately recuse themselves from the trial process.

As long as some representative sample or delegate of the public is in a position to monitor the courts and actually do something about a perceived injustice.

That is why we have a legislature and a governor who can do pardons. Or.. perhaps a periodic review by professionals. A review by elected officials, or heaven forbid the public just politicizes justice. It makes judges accountable for decisions based upon their popularity, rather than their correctness.

(2) is true, but it raises a question: why are those tricks valid tactics in court in the first place? We can say that judges are trained to recognize and ignore them, but are they really immune to nonlogical persuasion? Personally, I find it hard to believe. Even if it's true, that places a very heavy burden on the judge; being human, they're likely to drop the burden now and then.

They are more resistant to it than a Jury, which is all that is required to make a panel of judges or professional jurors superior. Moreover, while a judge may occassionally drop the ball, they wont drop the ball as often as a layperson, or group of laypersons. Your arguments are working against themselves.

So my reply to (2) is that this weakness of juries is not unique to juries, even if juries have more of it than judges.

It does not have to be unique to juries, and you are attacking a false dilemma of your own making, committing it and a strawman at once. All that is required is that a group of judges be superior to a jury, which they are.

The court already needs a set of rules to govern what kinds of arguments and evidence lawyers are allowed to use. If those rules aren't flawed, it will be hard for lawyers to manipulate the jury very much.

They already do, and the rules are followed. The problem is that the rules must make a tradeoff between the ability of a jury full of idiot laypersons to to hear and understand what is said, and removing a lawyer's ability to manipulate them. If you are too stringent, a lot of good evidence gets tossed out, and not all the problems are those of the Lawyers manipulation. Most of it is just explained by the fact that laypeople are idiots, and you can play to their emotions very easily without even realizing it. Fuck man, by asking simple open ended questions, I can make lay people think I can talk to the dead. It isnt hard.

If your juries are being easily manipulated by your trial lawyers to convict without evidence or to exonerate when the evidence is overwhelming, it's a sign that you're using the system improperly.

No. it is a sign that the universe does not conform to your fantasy.

Is the fact that the defendant has an alibi more important than the fact that two eyewitnesses reported him at the scene? How reliable is the alibi? How reliable are the eyewitnesses?

The fact that you have to ask that question is proof of why laypeople should not be on Juries. Any person who has taken a course in intro psych knows that eyewitness testimony is both the most readily accepted by the mind of the untrained layperson AND also the least reliable evidence you can get other than hearsay.

Sooner or later, your answer will have to depend on how much weight you assign to various bits of evidence. And when that point is reached, your assessment will always depend on assessment of personality and on what amounts to gut feeling.

No. No it does not, as I just demonstrated.

Replacing the lay jury with professionals won't guarantee that difficult court cases will be resolved by pure, unassailable reason. Therefore, disadvantage (3) is not removable and will exist in substantial form even if we use panels instead of juries.

False dilemma. All that is required is for professionals to be superior. They do not need to completely remove the problem, just be less prone to it.

I do not believe that Serafina's three stated disadvantages outweigh the two advantages of jury trials, especially the second one.

That is because a carrot is smarter than you.

[Alyrium Denryle]

I want not only good decisions, but assurance that I am not at the mercy of the first petty tyrant to make his way into the group of deciders.

So tell me, how well has this democratic process you masturbate to actually protected your liberties? I mean, we have had some pretty nasty non-petty tyrants of late...The same petty prejudices that make juries sacks of crap are the same ones which will keep them from removing despots and encourage them to remove good judges. If a judge (or panel) acquits an innocent person in a high profile child killing case, everyone who thought the guy was guilty (and there is a fair chunk that assumes that an arrested person is a guilty one) will clamor for the Judges removal. Every time a group of judges gives a minority (like gays) a fair shake... clamor for removal.

Democracy does not ensure liberties. If it does anything, it endangers the liberties of the minority, or unpopular while enshrining special privileges for the majority. Every time there has been a fucking VOTE on gay marriage for example. The population is itself comprised of petty tyrants.

Since there's an obvious concern about making sure judges have professional qualification[snip]

Gee wiz. Maybe they should be selected by professionals? You know, kind of like how we scientists select editors and decide who gets tenure.

Setting up unaccountable and inaccessible power blocs does not strike me as a good way to secure the public interest, and I don't believe governments (or judiciaries) have any other justification for existing.

Sure they do. Ensuring the proper and legal outcome (in the case of judiciaries). A judiciary is NOT a legislature. Securing the public interest is the job of the Legislature. They represent the People. The executive enforces. The legislature determines legality and trial outcome, and is SUPPOSED to be insulated against democracy. That is its point. If they were held accountable via election for their decisions, their posts become political footballs, and that is NOT what a nation of laws is supposed to have.

You may despise the general public, but if you're a government they're your boss.

Only the legislature and executive branches. The People are not the boss of the Judiciary in the sense that they must or should listen to it. The boss of the judiciary is the Law.

For any given group of people with power that can be misused, someone has to be able to keep an eye on them to make sure they don't start falling into these little cul de sacs of failure and abuse of power.

We already have systems in place for Judges and attourney's that do that. It is called the state bar.

The answer to the point is very simple: if judges can tell when they are being tricked and not fall for it, they can call bullshit when the jury is being tricked. If they cannot call bullshit when the jury is being tricked, then they themselves are falling for the trick

Are you only semi-literate? In the prior post it was laid out for you. A judge can call bullshit, within the bounds of the law, but that does not mean the Jury will listen. The damage is done the moment the judge said "disregard that", in fact they might weigh it MORE.

Therefore, flaw (2) with juries has a blindingly obvious solution: judges must be responsible for restraining lawyers from the use of bullshit, with the power to punish them if they do so.

Lawyers can already be held in contempt of court, or be referred to the ethics committee.

If your juries are dominated by people who do this, you've done something wrong in your selection process.

If you have to worry about that, you have a shitty system.

Or maybe I'm overestimating random people. If so, then I'm just remarkably lucky in the people I've met, to the point where all the idiots live elsewhere.

False dilemma. You know people who normally are rather smart, or at least average. However every person without specialized training or experience is going to be vulnerable to the same ignorance and petty prejudices. Our brains are hard wired that way.

Ever been to one of the public meetings where they propose things like new highway plans? Giving the general population at least some chance to speak up before buildings start getting torn down is not that unusual an idea, and it isn't exactly a guaranteed recipe for disaster.

False analogy. Speaking up about placement of the highway is not the same as the public having a say in building materials or construction itself, which is more analogous to the Jury trial, or Judge election.

When judges can't be fired in this way, or are accountable only to unelected officials in their own right, I get nervous about the idea of making them solely responsible for conviction and punishment of criminals.

You have yet to provide any argument as to why your nervousness is justified.

[Serafina]

I am too lazy right now to do an point-by point rebuttal.
But basically, you have only one "point", anyway:

You are afraid that a judge finds someone guilty for no reason at all. That he throws someone into jail just because he hates his face. Or that the judges somehow become a despotic tyranny.
And you assume that juries can prevent all that, because they are interested in "public interest", while judges are not.

Of course, those concers are justified - or would be, if there were no rules to keep judges in check.
In fact, it is quite hard for an judge to make a completly wrong decision.
And even if a specific judge is totally biased, you can repeat the whole trial with another one.

Sure, we hear of cases were someone was in jail for years and came free because there was "new evidence".
But thats the point: He was convicted because the evidence said he was guilty. There was an error, but the error was made by the prosecution or the police.

Oh, and a jury is even worse at making just decisions - we already pointed that out.
But it is ALSO worse in representing "public interest".
First, a jury does not miraculously represent the interest of the public just because they are part of if.
Actually, they are less likely to think about the "public interest". A judge will think about the consequences for further trials and the law when he makes his decision. A jury can not do that, because they do not know the laws!

The worst thing is, a judge is even more accountable when he makes errors than a jury. He is responsible to various superiors and/or politicans and will loose his job if he makes a lot of errors.
But a jury is responisble to...no one! No one can fire them, no one can do anything at all if they throw someone into jail for nothing.
In fact, it would be blatantly unfair to get them for unfair decisions - or does it strike you as just to punish someone for making a decision for something he has never done before, which other people study for years, and making it wrong?

It is way easier to make sure judges make just decisions by imposing various rules on them and controlling it afterwards, than by stuffing a bunch of hacks into trial decisions.

[Thanas]

Thanks to Serafina and Thanas, I now think there's a good way to replace juries with something better. But since the natural flow of the debate puts it at the very bottom of my post, I'm putting it here:

You simply appeal to democracy (is there a fallacy for this?) without explaining how this makes for better decisions.

I want not only good decisions, but assurance that I am not at the mercy of the first petty tyrant to make his way into the group of deciders. As a way of securing this for the courts, juries are... suboptimal. I'd rather scrap the juries BUT enact a system of election and recall of judges, now that I think about it, which this discussion has led me to do.

Since there's an obvious concern about making sure judges have professional qualifications, I suggest that nominations be closed to the public. I'm not sure who should nominate them; someone who's in a good position to identify unprofessional judges and simply not nominate them in the first place, so that no matter who gets elected you have someone competent on the court.

Democratic recall for judges is just idiotic and serves no purpose other than to put the judges at the mercy of public opinion, which has no place in a court proceeding.

I submit that this is unlikely. Most insults that can be aimed at me are factually wrong, and I can prove that they're wrong to my own satisfaction quite easily. Therefore, they will not change anything about my opinions that is important or lasting.

By contrast, your actual arguments are pretty good. They're just not so wonderfully good that they have convinced me to change the weighting vector I use to compare the relative merits of government systems. If you wish to convince me that the German system works better than the American system, you have already done so. I'd even agree to replace the American system with the German system, because it works so much better. That part of your mission is accomplished.

If you wish to convince me that panel systems are categorically superior to jury systems by necessity, you're going to have to change my weighting vector. Which would require arguments of truly unusual quality, of the kind that would establish you as a famous figure in the history of jurisprudence and constitutional theory.

When you compare a good panel system that works about as well as people can make it work to a bad jury system that any random clown can think of improvements for, of course the panel system will win. That doesn't prove much to me.

Hey, jackass. You have refused to address any points brought before you. Instead you continue this "lalalalalala - I can't hear you". In case you do not notice, mindlessly repeating yourself is against the rules.

The second is that they're there to serve as participating representatives of the public on the court.

Why do you need one of those in the first place? The public has an interested in the outcome of a trial, but that does not mean it has to participate in it. In fact, what advantages does the public have?

If they don't participate, then those who do had damn well better be accountable to them... which brings us back to election and recall of judges.

Setting up unaccountable and inaccessible power blocs does not strike me as a good way to secure the public interest, and I don't believe governments (or judiciaries) have any other justification for existing. You may despise the general public, but if you're a government they're your boss. I don't normally get to tell my boss to shut up and leave me alone, and there are good reasons for that, even if I can't always bring myself to admit they're there.

People forget aspects of what they're supposed to be doing. They develop target fixation and wind up with screwed up priorities. They start ignoring appalling aspects of whatever it is they're doing. It's not just something that happens to random clowns, either. It happens to educated professionals. For any given group of people with power that can be misused, someone has to be able to keep an eye on them to make sure they don't start falling into these little cul de sacs of failure and abuse of power.

Nobody likes it. Everyone thinks "Not me, I won't screw up without oversight. Only those stupid people over there would mess up that way!" And everyone is wrong, or nearly everyone, with no way to pick out the unique special exceptions. Even famously incorruptible people can catch a brainbug, start abusing their power, and have to be brought down. Everyone has to be watched by someone.

Some communities manage fairly well with self-policing (scientists), but other groups trusted to self-police will betray that trust in very imaginative ways (aristocrats). Self-policing is not reliable. Other-policing is necessary. Who polices a government? Ultimately, it has to be the public. Which means giving the public windows onto what the government is doing and ways to influence its policy. Someone has to be the tribune.

And yes, the position of tribune can be misused too; he needs someone watching him just like everyone else.

All of that screed misses the point - a) the public is bad at fixing judicial problems b) I guess you never heard of self-regulation and neutral committees? But no, being the black/white fallacy guy you are (it is very much like George W Bush, btw) you immediately assume that the public is the only one to fix it.

My god.

Anything that makes a process more complicated is a very bad thing. I think you should be smart enough to actually realize this?

If anything that makes a process more complicated is very bad, anything that makes a process less complicated ought to be good. But I can think of a lot of ways to simplify trials that would be unjust and useless if we're interested in any sane goal.

Some complications are excusable.

Not if they do not improve the quality of the process and can be easily removed.

You are an idiot. Yes judges can fall for tricks. But they are less likely to do so than an untrained layperson. Quit semantic whoring and answer that point, idiot.

The answer to the point is very simple: if judges can tell when they are being tricked and not fall for it, they can call bullshit when the jury is being tricked. If they cannot call bullshit when the jury is being tricked, then they themselves are falling for the trick, in which case the entire argument becomes moot because the judge's higher resistance will not save him from the lawyer's trick. This is going to be true regardless of whether a jury is present. Even if there is no jury, the judge must still be able to say "that argument is bullshit."

Therefore, flaw (2) with juries has a blindingly obvious solution: judges must be responsible for restraining lawyers from the use of bullshit, with the power to punish them if they do so.

If the judge is using this power competently, the lawyers will not be in a good position to bullshit the jury. Any possible bullshitting will be very limited, assuming the judge is not inclined to put up with bullshit... which is supposed to be one of their job qualifications.

Of course, if the judge does tolerate bullshit, then the situation gets messy, because as you observe one cannot unring a bell. A bullshitted jury remains bullshitted even after attempts to clean them off after the fact. But that leads into the case below:

If the judge is not using this power competently, removing the jury will do no good, because the judge is incompetent and unable to detect bullshit. A judge who cannot detect bullshit well enough to warn that it is being used cannot resist bullshit. Which makes the bullshit-resistance that they were taught to have irrelevant, because they obviously don't have it now.

We have three options:
-Judge fails to detect bullshit
In this case, the judge isn't going resist better than the jury, because he can't tell he's being tricked any better than the jury can.
-Judge detects bullshit and suppresses it
If the judge is good, this will be reliable, and the lawyers will not dare to try to use significant bullshit on the jury.
-Judge detects bullshit and does not suppress it
In this case, removing the jury would be an advantage... but what kind of judge knows the lawyer is bullshitting and doesn't do anything about it? If that's going on in your court, something is wrong with your court procedures whether the jury is present or not. Something that's liable to make serious trouble even after we remove the jury, such as a biased judge that accepts bullshit arguments from one side while blocking them from the other side.

Let me ask you quite openly? Are you a troll?

Because you have not yet answered the point why this does not work.

Are you an idiot? You just justified that following your stomach is a good thing in a trial. That is the wrong answer. If the evidence does not fit, you do not follow your stomach. At least not as a judge. You declare that the evidence does not fit and then you judge the case on the existing evidence. And the assesment is not based on gut feeling, at least you are trained not to follow your gut but what is logical.

This begs the question of how "on the existing evidence" is to be defined; in a nontrivial case that's going to be a question for inductive logic. If you follow your gut and say "does this person have a guilty face," you're doing something wrong. If your juries are dominated by people who do this, you've done something wrong in your selection process.

Or maybe I'm overestimating random people. If so, then I'm just remarkably lucky in the people I've met, to the point where all the idiots live elsewhere. So I'm missing out on most of the people who will consistently judge criminals by their guilty face and not by their alibi. That would surprise me, since I live near a city supposedly deluged with bullshit in a nation supposedly populated by fools. If the idiots don't live here, them I'm honestly amazed that the rest of the world hasn't managed to kill itself yet.

Stop semantic whoring, it is not impressing anyone. And you must live in a real mensa colony if you think a fair share of the people you meet are not idiots. Hey, I practically live in a university. And even there I regularly meet idiots. For example, I just have to get up and walk down three stories into the cafeteria.

Why not?

Because unaccountable government officials bug me beyond all reason. If they do not similarly bug you, then obviously your different priorities will lead you to think differently.

I do not expect to be able to convince you that unaccountable government officials are a very bad idea if you do not already believe it. It would be a colossal waste of our time for me to try. This is a priorities thing.

If you have a better way to make courts accountable to the public than the use of juries (electing judges comes to mind), fine, let's use that.

Idiot. Your life is already run by people unaccountable to the public. Besides that, the judge is supposed to be only accountable to a higher court. That is the way a justice system works. It is deeply flawed if a judge constantly has to worry whether this will ruin his re-election chances.

But hey, I guess your fear of a government takeover is pretty popular in your conspiracy-addled brain, I am sure you believe the EU to be some evil empire as well. Nevermind that a coup like that has never happened once in history, whereas Jury systems have fucked over a great number of people. Ask Stofsk about that, who was convicted due to a Jury believing a trail of bullshit "evidence" any reasonable judge would have tossed out immediately.

If you can come up with a better way to get representatives of the public into the courts, which would otherwise be in essence the proceedings of the lawyers' guild, I'm all for it.

I suspect you can; I already have, and I'm being called a moron by people educated enough to know a moron when they see one. Unfortunately, election and recall of judges has disadvantages of its own, which I suspect are similarly unacceptable.

Why do the people need a representative? You have not answered that. You are repeating they do need one. So here I await your essay that is supposed to convince me that representatives of the public are necesary when you already have a justice minister who oversees prosecutors, a well-informed public and the press.

Oh, neverming the safeguards.

Ever been to one of the public meetings where they propose things like new highway plans? Giving the general population at least some chance to speak up before buildings start getting torn down is not that unusual an idea, and it isn't exactly a guaranteed recipe for disaster.

But seriously, there are better ways to secure the public interest in an engineering situation. Such as making it possible for elected officials to fire the engineers if the engineers start proposing stupid things. When judges can't be fired in this way, or are accountable only to unelected officials in their own right, I get nervous about the idea of making them solely responsible for conviction and punishment of criminals.

Yes, because judges are OUT TO GET YOOOUUUUU.

Tinfoil hat much?

You simply appeal to democracy (is there a fallacy for this?) without explaining how this makes for better decisions.

See top of post.

That was not an answer. That was more of the "guh-guh-democracy" drivel that characterizes your posts, being totally devoid of arguments other than "I think".

And like Alyrum says, democracy does not really protect minorities all by itself. It needs safeguards like anti-discrimination laws. Guess who is going to enforce these? Certainly not a panel composed of retards.

Oh, and nevermind that this public election of judges has lead to the election of such fine minds like Clarence Thomas and Alito to the highest court in the USA. But you won't find an equivalent case in Germany. Three guesses as to why this is the case.

[Simon_Jester]

So tell me, how well has this democratic process you masturbate to actually protected your liberties? I mean, we have had some pretty nasty non-petty tyrants of late...The same petty prejudices that make juries sacks of crap are the same ones which will keep them from removing despots and encourage them to remove good judges. If a judge (or panel) acquits an innocent person in a high profile child killing case, everyone who thought the guy was guilty (and there is a fair chunk that assumes that an arrested person is a guilty one) will clamor for the Judges removal. Every time a group of judges gives a minority (like gays) a fair shake... clamor for removal.

Like in Massachusetts, you mean?

Democracy does not ensure liberties. If it does anything, it endangers the liberties of the minority, or unpopular while enshrining special privileges for the majority. Every time there has been a fucking VOTE on gay marriage for example. The population is itself comprised of petty tyrants.

Do self-selecting groups have a better track record? I mean, I can think of a lot of examples of self-selecting elites enshrining special privileges for a minority (themselves), which is if anything even more perverse than giving them to the majority. And I can't think of a lot of examples of self-selecting elites promoting the interest of minorities, except when they want to use that minority class as a cat's paw to control the majority.

Could you give me some historical examples?
_________

Gee wiz. Maybe they should be selected by professionals? You know, kind of like how we scientists select editors and decide who gets tenure.

I specifically noted that scientists are a group that do fairly well with self-policing. On the other hand, you may be familiar with the phrase "academic politics." Scaling that model up to an organization with the power to have people taken out and killed isn't necessarily going to make things any less political.

If you want an example of a class of judges that is already self-policing, and operates on an academic model, look at the ulema, the Islamic clerics responsible for Koran interpretation. For societies organized along Muslim lines, the ulema serve as a combination of lawyer, judge, and priest, because the Koran contains a lot of specific legal prescriptions that describe how to run a society. The way you get the right to make pronouncements on Islamic law as an ulama is by becoming an established figure in the academic community of ulema- essentially, you need to have a curriculum vitae strong enough that other ulema will respect your legal thinkin.

The ulema are seen by Muslims as the guardians of the 'community consensus' because they are the informed community; the ones who study the law for a living. Indeed, if you use the Islamic law code rather than something more like the common law or constitutional law of the West, the ulema are a good example of what a self-policing class of expert judges might look like.

The ulama system has some advantages compared to, say, handing out judgeships to whoever bribes the ruler most effectively. But it has real drawbacks: the long process of becoming an ulama tends to insulate the legal profession from the social concerns of the day. Ulema are mostly quite conservative, since the way you get tenure-equivalent as an ulama is by writing commentary that other, older ulema will approve of. Thus, ulema self-select for conservativism, to the point where they have become a huge reactionary brake on Muslim societies as those societies try to confront the modern era. The main schools of Islamic law are over a thousand years old at this point.

Western scientists don't have nearly so much of that problem, but only because they go far out of their way to select for students with intellectual integrity and to keep that integrity as they age. Even then, you're not likely to get far if you try to present a thesis that is "clearly" wrong in the eyes of your committee, or if you are constantly arguing with everyone else in your field to the point where no one wants to work with you.

But the precedent of the ulema is one of the reasons I worry about the idea of self-selecting judges being inherently superior because they all understand the law and judge their fellows only by those fellows' understanding of the law. It's been tried, and the longer it goes on, the greater the risk that the community of judges will blunder into some intellectual cul de sac with no one to snap them out of it.
__________

You may despise the general public, but if you're a government they're your boss.

Only the legislature and executive branches. The People are not the boss of the Judiciary in the sense that they must or should listen to it. The boss of the judiciary is the Law.

See the last part of my reply to you for part of my concern on this subject.

For the rest: since judges are often responsible for telling us what the law says, I'm suspicious of the claim that the law is their boss. That would not be a plausible argument coming from most people- "I'll tell you what my boss has to say, and my boss will tell you through me if I screw up." Especially in a situation where the boss is an abstract concept with no actual power to force the subordinate to act honestly.
_________

Are you only semi-literate? In the prior post it was laid out for you. A judge can call bullshit, within the bounds of the law, but that does not mean the Jury will listen. The damage is done the moment the judge said "disregard that", in fact they might weigh it MORE.

Therefore, flaw (2) with juries has a blindingly obvious solution: judges must be responsible for restraining lawyers from the use of bullshit, with the power to punish them if they do so.

Lawyers can already be held in contempt of court, or be referred to the ethics committee.

And this does not deter them from attempting to bullshit the jury? Are there not tactics that no prudent lawyer would attempt, precisely because they're liable to get him thrown out of court with a hard inspection of his professional ethics? Why should throwing irrational arguments at the jury not get them in this kind of trouble?
_______

When judges can't be fired in this way, or are accountable only to unelected officials in their own right, I get nervous about the idea of making them solely responsible for conviction and punishment of criminals.

You have yet to provide any argument as to why your nervousness is justified.

Part of the reason I'm nervous is because of the precedent of the ulema. Naturally, this is less likely to happen in a society where the core legal principles are explicitly not holy writ. But how long can a self-perpetuating body of scholars- not scientists, scholars, there's a difference and judges are definitely not going to be on the scientists' side of it- operate without enshrining poorly examined core principles? There are plenty of fields within academia that have already done this; you have only to look at the postmodern schools of literary criticism and philosophy to see what I mean. What happens if the judges wind up catching something as idiotic as Derridism?

Someone has to be able to say "the judges themselves are unjust." And the more cut-outs you place between the people with the right to say that (the public acting as a whole) and the people with the power to say that, the less likely the system is to change even when almost everyone outside the law schools knows it must.

===============

I am too lazy right now to do an point-by point rebuttal.
But basically, you have only one "point", anyway:

You are afraid that a judge finds someone guilty for no reason at all. That he throws someone into jail just because he hates his face. Or that the judges somehow become a despotic tyranny.
And you assume that juries can prevent all that, because they are interested in "public interest", while judges are not.

Actually, I've already explicitly stated that juries aren't the best way to address this concern of mine. And that juries in specific systems like the US aren't good enough at doing this to justify the serious loss in court quality that we get as a result, which is why I would support replacing the American jury system with the German panel system.

Maybe you weren't paying attention.

So while I maintain that you're oversimplifying my argument, it's a moot point. Even I admit that there are better ways to watch judges from outside the judiciary than by putting a body of random citizens into the court room as a fuse box.
______

Oh, and a jury is even worse at making just decisions - we already pointed that out.
But it is ALSO worse in representing "public interest".
First, a jury does not miraculously represent the interest of the public just because they are part of if.
Actually, they are less likely to think about the "public interest". A judge will think about the consequences for further trials and the law when he makes his decision. A jury can not do that, because they do not know the laws!

Juries are at best a way of enforcing the public interest over large numbers of trials- laws can wind up effectively dead because no jury would enforce them. If a law is so unpopular that you can't find a representative sample of the population that will agree to punish someone for violating it, something has gone wrong with the law even if the legislature is too dumb to admit it.

But that was in a simpler time, when either juries were less stupid or laws were less complicated. Since then, thanks in large part to the efforts of lawyers, we have gained a law code too detailed to be analyzed by nonspecialists. So I accept that we have to move to a new system that gives proportionately more power over court decisions to the lawyers and judges. One that relies on a different mechanism for monitoring the court process, because juries are no longer able to do so effectively thanks to our marvelously intricate legal system.

========

Hey, jackass. You have refused to address any points brought before you. Instead you continue this "lalalalalala - I can't hear you". In case you do not notice, mindlessly repeating yourself is against the rules.

I have addressed multiple specific points made by others on this thread. The fact that I do not AGREE with you does not mean that I do not HEAR you, nor does it mean that I am too stupid to UNDERSTAND you. Perhaps your righteous indignation at my continuing to believe things you disagree with has led you to miss the fact that my position on the issue has changed over the past few days. This is because you make a good point about the problem with injecting inexperienced laymen into individual court cases where they don't understand the legal background involved.

Congratulations. You've convinced me that something I believed to be a good idea for years was wrong. Except wait, that can't happen, because I'm not hearing you, right? And my opinions haven't really changed, because I still think something you disagree with, and care about something you don't care about, right?

Nonsense. You were a far more convincing debater before you started whining about how I don't understand you. You haven't managed to convince me that my priorities are wrong any more than I have convinced you of the same about yours. But I don't jump down your throat for what is to me suicidal indifference to the long-term consequences of setting up a judicial elite against whom nonjudges have no recourse. And you do jump down my throat for what is to you insane indifference to the need for an independent judiciary that can analyze the law in peace.

If you want to justify this asymmetry, why don't you try coming up with more credible arguments for a completely independent judiciary, and why we don't have to worry about it going stupid on us, as other such judiciaries have in the past? So far, all I've heard is that it would be "self-policing," which is NOT encouraging given the track record of self-policing institutions. Good self-policers are rare; the only group I can think of off the top of my head is found in the hard sciences. Almost all other professions that yield good results do so under the eye of some outsider or class of outsiders responsible for making sure they don't go crazy.
__________

All of that screed misses the point - a) the public is bad at fixing judicial problems b) I guess you never heard of self-regulation and neutral committees? But no, being the black/white fallacy guy you are (it is very much like George W Bush, btw) you immediately assume that the public is the only one to fix it.

Stripping out your use of a new, intriguing variant on the reductio ad Hitlerum, you have a point: the public is bad at fixing judicial problems.

And how, I ask you, are we to identify when we have a judicial problem in need of fixing? As best as I can determine, the answer is "ask a judge." The committees responsible for identifying and fixing judicial problems will be made up largely of judges, and of nonjudges from the same academic background as the judges. Only people with this background are qualified to identify and fix problems with the judiciary.

This strikes me as peculiar. I do not need to be an engineer to know when I am faced with an engineering problem. If I need a roof, I am in need of an engineer. I do not need to be a doctor or surgeon to know when I am faced with a medical problem. If a man is chronically weak and sickly, or in constant pain, he should be brought before a physician. I can identify problems with solutions that require expert knowledge I do not have.

Moreover, I can judge the quality of the expert by their results: if my roof caves in, I need a better engineer. If patients persistently fail to get better, I need a better doctor. I can fire the old expert and replace them with a new one who will (hopefully) do a better job. Even if I do not understand how they will do a better job, it is not difficult for me to understand that they will- and to throw them out in turn if they fail to deliver on their promises.

But when we come to judges, suddenly it becomes impossible to evaluate the quality of their work without already being a member of the group. I can never look at a judge and say "this judge is a noose-happy monster, that judge is too easy on drug dealers, the other judge is too hard on drug users." Not only am I not qualified to understand the process by which they make decisions, I am not qualified to evaluate the concrete and undeniable outcome of that process.

Therefore, the judges must be trusted to police the judges, you say, because only the judges have any basis for understanding what judges do. I'm still skeptical, because I don't see why judges are different from any other experts in this respect.

Even among that paradigm of self-policing, the hard sciences, I can still judge scientists by their results: if I give a bunch of chemists a grant to examine the structure of polymers, and they don't tell me anything about the structure of polymers, I can take away their funding and give it to someone else. Even though I myself know far less about polymers than they do, I know when they aren't using that knowledge to good effect.

Why do I suddenly not know this when we come to judges?
__________

Let me ask you quite openly? Are you a troll?

Not by the conventional definition. I am not maintaining this argument purely out of obstinacy, or out of a desire to watch you get angry. I am not saying anything I believe to be false.

What I am is a person who believes things for reasons you do not find satisfactory, because I worry about things you don't care about, and which are "obviously" irrelevant. Just as, to me, you are a person who believes things for reasons I do not find satisfactory, because of your indifference to things that are "obviously" relevant.
__________

Because you have not yet answered the point why this does not work.

If the practice of having judges suppress tactics aimed at manipulating the jury does not work, judges are using their power as referee in the courtroom badly. It is, after all, possible to maintain rules of debate when a trained referee is present at all times. Probably because somewhere along the way, they got the idea that letting lawyers manipulate the jury is a good thing. Since that strikes me as absurd, I don't know where it came from.

I contend that it should work if it were done effectively. But because I'm not sure judges are competent to referee lawyers and block them from using bullshit tactics, I concede that this is a basic flaw in the jury system, and another argument to go to a panel system in which judges who cannot block bullshit tactics will not have to worry about doing so, because the decisions are all made by bullshit-proof judges.

Stop semantic whoring, it is not impressing anyone. And you must live in a real mensa colony if you think a fair share of the people you meet are not idiots. Hey, I practically live in a university. And even there I regularly meet idiots. For example, I just have to get up and walk down three stories into the cafeteria.

As I said, I must be lucky. I don't meet nearly as many idiots as you do. Though I do meet a lot of people who disagree with me. Maybe you're mistaking people who disagree with you for idiots.
_________

But hey, I guess your fear of a government takeover is pretty popular in your conspiracy-addled brain, I am sure you believe the EU to be some evil empire as well.

Actually, I think the EU is a well-intentioned effort to put together a continental civilization on a new variation of the democratic model. I hope it works better than I expect it to, because it would be a great shame if the EU winds up bureaucratizing policy to the extent that, say, Hong Kong has. Hong Kong is a good example of what happens when you select policy-makers by their ability to appeal to other policy-makers.

[Thanas]

Do self-selecting groups have a better track record? I mean, I can think of a lot of examples of self-selecting elites enshrining special privileges for a minority (themselves), which is if anything even more perverse than giving them to the majority. And I can't think of a lot of examples of self-selecting elites promoting the interest of minorities, except when they want to use that minority class as a cat's paw to control the majority.

Could you give me some historical examples?

Germany's judiciary over the last sixty years or so?

I specifically noted that scientists are a group that do fairly well with self-policing. On the other hand, you may be familiar with the phrase "academic politics." Scaling that model up to an organization with the power to have people taken out and killed isn't necessarily going to make things any less political.

If you want an example of a class of judges that is already self-policing, and operates on an academic model, look at the ulema, the Islamic clerics responsible for Koran interpretation. For societies organized along Muslim lines, the ulema serve as a combination of lawyer, judge, and priest, because the Koran contains a lot of specific legal prescriptions that describe how to run a society. The way you get the right to make pronouncements on Islamic law as an ulama is by becoming an established figure in the academic community of ulema- essentially, you need to have a curriculum vitae strong enough that other ulema will respect your legal thinkin.

The ulema are seen by Muslims as the guardians of the 'community consensus' because they are the informed community; the ones who study the law for a living. Indeed, if you use the Islamic law code rather than something more like the common law or constitutional law of the West, the ulema are a good example of what a self-policing class of expert judges might look like.

The ulama system has some advantages compared to, say, handing out judgeships to whoever bribes the ruler most effectively. But it has real drawbacks: the long process of becoming an ulama tends to insulate the legal profession from the social concerns of the day. Ulema are mostly quite conservative, since the way you get tenure-equivalent as an ulama is by writing commentary that other, older ulema will approve of. Thus, ulema self-select for conservativism, to the point where they have become a huge reactionary brake on Muslim societies as those societies try to confront the modern era. The main schools of Islamic law are over a thousand years old at this point.

Western scientists don't have nearly so much of that problem, but only because they go far out of their way to select for students with intellectual integrity and to keep that integrity as they age. Even then, you're not likely to get far if you try to present a thesis that is "clearly" wrong in the eyes of your committee, or if you are constantly arguing with everyone else in your field to the point where no one wants to work with you.

But the precedent of the ulema is one of the reasons I worry about the idea of self-selecting judges being inherently superior because they all understand the law and judge their fellows only by those fellows' understanding of the law. It's been tried, and the longer it goes on, the greater the risk that the community of judges will blunder into some intellectual cul de sac with no one to snap them out of it.
__________

How about you actually look at the system in place in western countries without immediately providing examples from the Muslim world? You know, in which judges are confirmed by the legislature after being selected by professionals? And how about their results?

For the rest: since judges are often responsible for telling us what the law says, I'm suspicious of the claim that the law is their boss. That would not be a plausible argument coming from most people- "I'll tell you what my boss has to say, and my boss will tell you through me if I screw up." Especially in a situation where the boss is an abstract concept with no actual power to force the subordinate to act honestly.

That actual power comes from other judges, higher courts and strict personal and professional ethic training.

And this does not deter them from attempting to bullshit the jury? Are there not tactics that no prudent lawyer would attempt, precisely because they're liable to get him thrown out of court with a hard inspection of his professional ethics? Why should throwing irrational arguments at the jury not get them in this kind of trouble?

Ignoring the point as usual. The point is that a jury is far more likely to be bullshitted.

Part of the reason I'm nervous is because of the precedent of the ulema. Naturally, this is less likely to happen in a society where the core legal principles are explicitly not holy writ. But how long can a self-perpetuating body of scholars- not scientists, scholars, there's a difference and judges are definitely not going to be on the scientists' side of it- operate without enshrining poorly examined core principles? There are plenty of fields within academia that have already done this; you have only to look at the postmodern schools of literary criticism and philosophy to see what I mean. What happens if the judges wind up catching something as idiotic as Derridism?

If you ever had been in a european law school you would not make this argument. It is pretty much idiotic in itself - for once, it is impossible for lawyers to formulate their own grand positions because these are allready formulated by the constitution and the laws.

Someone has to be able to say "the judges themselves are unjust." And the more cut-outs you place between the people with the right to say that (the public acting as a whole) and the people with the power to say that, the less likely the system is to change even when almost everyone outside the law schools knows it must.

WTF? Are you familiar with the concept of a free press and the well-informed electorate? And if need be, you have about five different levels of courts you can call on.

I have addressed multiple specific points made by others on this thread. The fact that I do not AGREE with you does not mean that I do not HEAR you, nor does it mean that I am too stupid to UNDERSTAND you. Perhaps your righteous indignation at my continuing to believe things you disagree with has led you to miss the fact that my position on the issue has changed over the past few days. This is because you make a good point about the problem with injecting inexperienced laymen into individual court cases where they don't understand the legal background involved.

You still maintain a lot of your original position with no justification for it. Hence my "I can't hear you" spiel.

Congratulations. You've convinced me that something I believed to be a good idea for years was wrong. Except wait, that can't happen, because I'm not hearing you, right? And my opinions haven't really changed, because I still think something you disagree with, and care about something you don't care about, right?

Nonsense. You were a far more convincing debater before you started whining about how I don't understand you. You haven't managed to convince me that my priorities are wrong any more than I have convinced you of the same about yours. But I don't jump down your throat for what is to me suicidal indifference to the long-term consequences of setting up a judicial elite against whom nonjudges have no recourse.

Here. THIS is what I am "whining about", you sanctimonious prick. You are shooting your mouth of about something you have no knowledge of, something you do not understand, something you apparently did not read up on.

Last warning - do so before making statements like that.

And you do jump down my throat for what is to you insane indifference to the need for an independent judiciary that can analyze the law in peace.

If you want to justify this asymmetry, why don't you try coming up with more credible arguments for a completely independent judiciary, and why we don't have to worry about it going stupid on us, as other such judiciaries have in the past? So far, all I've heard is that it would be "self-policing," which is NOT encouraging given the track record of self-policing institutions. Good self-policers are rare; the only group I can think of off the top of my head is found in the hard sciences. Almost all other professions that yield good results do so under the eye of some outsider or class of outsiders responsible for making sure they don't go crazy.

I am not your googlebot. Heck, even wikipedia has information on the german justice system. It is trivially easy to find information on it on the internet.

No, what I am upset is that you continue to characterize it as a system that has no safeguards etc when even a ten-second googlesearch would reveal the safeguards inherent in the system.

And how, I ask you, are we to identify when we have a judicial problem in need of fixing? As best as I can determine, the answer is "ask a judge." The committees responsible for identifying and fixing judicial problems will be made up largely of judges, and of nonjudges from the same academic background as the judges. Only people with this background are qualified to identify and fix problems with the judiciary.

This strikes me as peculiar. I do not need to be an engineer to know when I am faced with an engineering problem. If I need a roof, I am in need of an engineer. I do not need to be a doctor or surgeon to know when I am faced with a medical problem. If a man is chronically weak and sickly, or in constant pain, he should be brought before a physician. I can identify problems with solutions that require expert knowledge I do not have.

Moreover, I can judge the quality of the expert by their results: if my roof caves in, I need a better engineer. If patients persistently fail to get better, I need a better doctor. I can fire the old expert and replace them with a new one who will (hopefully) do a better job. Even if I do not understand how they will do a better job, it is not difficult for me to understand that they will- and to throw them out in turn if they fail to deliver on their promises.

But when we come to judges, suddenly it becomes impossible to evaluate the quality of their work without already being a member of the group. I can never look at a judge and say "this judge is a noose-happy monster, that judge is too easy on drug dealers, the other judge is too hard on drug users." Not only am I not qualified to understand the process by which they make decisions, I am not qualified to evaluate the concrete and undeniable outcome of that process.

Therefore, the judges must be trusted to police the judges, you say, because only the judges have any basis for understanding what judges do. I'm still skeptical, because I don't see why judges are different from any other experts in this respect.

Even among that paradigm of self-policing, the hard sciences, I can still judge scientists by their results: if I give a bunch of chemists a grant to examine the structure of polymers, and they don't tell me anything about the structure of polymers, I can take away their funding and give it to someone else. Even though I myself know far less about polymers than they do, I know when they aren't using that knowledge to good effect.

Why do I suddenly not know this when we come to judges?

You truly suck at logic. Yes, you might know as a layperson when there is a problem. You might even bring it to the attention of the specialist. What you do not know is how to fix it or what consequences might arise out of fixing it. You need professionals for that. So you can take your giant strawman and light it.

And how many laws have you constructed, btw? Do you even know how a law is supposed to be structured? Or what special termini mean when used? No? Then you can't be the judge. Lay persons can identify a general problem (to use your example, you know when you are in pain) but they rarely come to the correct conclusion if it is a complex problem (aka the source of the pain).

What I am is a person who believes things for reasons you do not find satisfactory, because I worry about things you don't care about, and which are "obviously" irrelevant. Just as, to me, you are a person who believes things for reasons I do not find satisfactory, because of your indifference to things that are "obviously" relevant.

Because you have not yet answered the point why this does not work.

If the practice of having judges suppress tactics aimed at manipulating the jury does not work, judges are using their power as referee in the courtroom badly. It is, after all, possible to maintain rules of debate when a trained referee is present at all times. Probably because somewhere along the way, they got the idea that letting lawyers manipulate the jury is a good thing. Since that strikes me as absurd, I don't know where it came from.

I contend that it should work if it were done effectively.

If I make the argument in front of a jury "BTW, he is a convicted child molester" or such other tricks, the jury will not disregard that implication no matter whether I get torn to shreds by the judge or not. If I try that in a judge-panel court, they will tear me to shreds and ignore that argument. It doesn't matter if the judges are competent or not in such cases.

Stop semantic whoring, it is not impressing anyone. And you must live in a real mensa colony if you think a fair share of the people you meet are not idiots. Hey, I practically live in a university. And even there I regularly meet idiots. For example, I just have to get up and walk down three stories into the cafeteria.

As I said, I must be lucky. I don't meet nearly as many idiots as you do. Though I do meet a lot of people who disagree with me. Maybe you're mistaking people who disagree with you for idiots.

Don't get cute with me, underhanded insults won't help your case. No, I am talking about idiots like the lunch lady who can't understand how to unscrew a ketchup bottle.

But hey, I guess you never meet those people. Suure... I call bullshit on that.

[PeZook]

Do self-selecting groups have a better track record? I mean, I can think of a lot of examples of self-selecting elites enshrining special privileges for a minority (themselves), which is if anything even more perverse than giving them to the majority. And I can't think of a lot of examples of self-selecting elites promoting the interest of minorities, except when they want to use that minority class as a cat's paw to control the majority.

Jesus christ, do you actually know anything about the world outside America?

You seem to be talking about some right-wing small-government strawman of real life judge panel systems, rather than, you know, the actual thing.

[Duckie]

I would like to step in, even though I haven't been arguing this and thus I hope it's not a dogpile, but I'd like to ask the minority debater about a question since I haven't a clue how to follow his half of this thread and nobody has gotten him to address it directly:

You say juries are less likely than judges to be biased, and that democracy and public interest are generally superior. Why? You've mentioned that judges might convict a man because they're some kind of mythical 'elite' that hates common folk, or that panel juries might do the same, and that democratic recall and election for judges is superior to a technocratic method.

I'd note that there are numerous cases of all-white juries in the south not convicting lynch mob members, and of democratically elected judges such as Roy Moore using their office. I say using, not abusing, because their office is intended to support populist discrimination against minorities by very virtue of putting crime enforcement and law interpretation up to a democratic vote. Roy Moore for instance was elected not in spite of but because he believes that the Constitution of Alabama in all its womens-sufferage denying, segregation supporting, homosexuality criminalising glory defeats the Supreme Court and the Constitution of the USA, that the state should use its power to persecute homosexuals in any way possible (for instance, he refused custody in any divorce cases where one person was gay and attempted to recriminalise sodomy despite the supreme court ruling against it), and the very same group that got him elected also was involved in the 2004 battle to keep segregation in the Alabama Constitution (they succeeded)

Democratic juries don't prevent discrimination, they make it all the more possible. To me, the notion that a panel jury or even a single arbitrating judge, hell, even the Inquisitorial Court system is inherently more biased than a mob of laymen in the modern era on issues of discrimination is laughable.

Explain to me how it's far more likely under a non-democratic system to get tyranny of the majority and other discrimination, as I clearly don't understand the crux of your argument in favor of uneducatedness.

[Simon_Jester]

Jesus christ, do you actually know anything about the world outside America?

Nope. Not a thing.

You seem to be talking about some right-wing small-government strawman of real life judge panel systems, rather than, you know, the actual thing.

For now, they work. I hope they continue to work. I'm not optimistic, but I'm pessimistic about many things.

Fine. Perhaps the judiciaries of Europe have achieved a new miracle in the world, and managed to build a branch of government with functional self-policing. It would be the first time I'm aware of, but a lot of things have happened for the first time in the past few centuries. We live in an age of wonders. Medical science is about one step short of being able to raise the dead; we take flying across continents for granted; and in the more prosperous parts of the world nearly everyone lives under conditions the ancients would find indistinguishable from palaces.

So if you insist, I concede that for all I know, there has been a correspondingly brilliant invention in the political sciences: self-policing government! Experts can now operate without anyone watching them, and reliably catch themselves before they start abusing their power or blundering into intellectual cul-de-sacs. The public can sleep soundly, knowing that the lawyers have devised a peerless solution to the byzantine law code they created. Not only does it work now and on the scale of individual cases; it works over the long term. There is no real possibility of these judges committing systematic wrongs and refusing to stop, because they are just so much smarter, more learned, and more self-honest than the common man. I am a silly fool for worrying about it, and my fears are pointless relics from inane memories of bad governments past.

My natural instincts tell me that such a thing is about as likely as water turning into wine or squadrons of pigs dive-bombing major metropolitan areas. But since everyone here familiar with the judiciary of Europe insists that it's exactly what they've managed, I'll take their word for it. It's enough to make the jaw drop and the mind reel.

Fine. You win, feel proud. I can't prove there's anything to worry about; I lack the skill set to be sure where to begin. And I'm not going to try any more.

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I am going to PM Duckie a response, because I owe it to him and I do not want to renew the dispute by saying it to someone like Thanas.