NoZed Avenger
Penultimate Amazing
- Joined
- Apr 19, 2002
- Messages
- 11,286
But there is the problem of pre-trial exposure, of course. This can be very extensive and it can be long lived. If the proposition is that juries cannot but be influenced while the trial is going on I can see absolutely nothing sensible in the idea that those same processes do not have the same impact before the trial. The americans here have argued (in several threads actually) that this is met by the system of questioning jurors. They seem to be shocked that this system is not universal and I infer that they consider it very valuable. But it makes little sense. If the processes are unconscious then they are unconscious. Asking someone who is not conscious of bias if they think they can be fair, is not going to get you anywhere; it looks like a chocolate teapot to me.
You misapprehend the questioning. If an attorney asks "does everyone think they can be fair," gets 50 people nodding, and then quits, he or she has not done her job in voir dire.
You question about attitudes, you question about the press reports the people have been exposed to and their attitudes about different matters so that the attorney gets a better idea of whether the person can truly be fair, or not. Most jurors want to be fair and want to be honest at the same time. While they think they can be fair, they will be willing to say whether certain facts, or circumstances, or anything else about the case makes them uneasy, or worried about their own ability to be fair. Don't dismiss voir dire questioning of the jury panel. It is possibly the most important part of the trial; it is certainly one of the best ways to obtain the fairest jury possible in the common law system.
The other problem I see, is that this system is based on acknowledgement of some parts of human nature: but it is curiously blind to others. So jurors are told not to talk to anyone else about the case outside the court: not even each other. I am confident that most jurors will make every effort not to do so, because jurors approach their task seriously for the most part. But we are to believe that a group of people can spend all day focussing on evidence which is very far from their day to day experience: which may be very confusing and very emotionally taxing; and which is extremely interesting to the public they are part of; and can then be shut up in a hotel together without access to the news media and with nothing else in common: and successfully avoid the topic altogether. As I said, I think they probably succeed quite often: but if they can do that they are all grown up and trustworthy: so why are we treating them like children in the first place?
Juries are not sequested in most cases; they are trusted to be "grown up." And after 14 years of trial work, I am more impressed today with juries -- and their efforts to follow the courts' instructions -- than when I began as an attorney.
And again, I think you emphasize the wrong elements. Sequestering is used, generally, only for high-profile cases where the court expects inflammatory press or where information that would be considered unreliable and strongly emotional might reach the news. In those situations, it is considered safer to try and keep the jury from having to work at keeping their outside knowledge from influencing their decision.
The Italians obviously face the same conflict of principle and the same aim of fair trial and press freedom. They have found a different solution, as I understand it.
In the Italian system the juror is not seen as untrustworthy or as incapable of dealing with bias generated by the press. He is seen much more as a responsible adult. The way they have chosen to deal with this problem is to compose the jury of a number of lay people who sit with professional judges. The professional judge is expected to be educated in the working of bias and its sources: and I think we assume this of our own judges too. They are still human and they will also be affected, if the theory of unconscious influence is valid: but less so because of their training.
I think that is a reasonable view to take: but it is not all. The Italians do not exclude evidence in the way we do: much is admitted which we would exclude. The thinking here is that people weigh different content all the time, and that they are capable of giving proper value to different kinds of evidence. In Italy the jury gets a fuller picture, both in court and in the media. Since they are the decision makers I think there is some merit in that: and I think it limits the kinds of power ARubberChickenWithAPulley rightly identified: the prosecutor and the court cannot control what is presented nearly so well. In other areas of life we tend to think that more sources of information are a good thing: why not here? It is not obvious to me: and of course it preserves the freedom of the press more than the uk system does.
I cannot say whether this aspect of the system is as good, better, or worse without a lot more study. I will not, however, sign on to a statement that "more sources of information are a good thing" in general. That depends entirely on the reliability of the information and the ability of the accused to answer back.
Information is not excluded from evidence in the US or UK on a whim; there is an effort to see that the jury gets access to all relevant and material information, but not information that is considered unreliable or which has no bearing on the issue of guilt or innocence. For example: hearsay statements are excluded because there is no effective way for the jury to evaluate what some person not before them said and how they said it -- no way for the jury to accurately judge the credibility of a speaker not before them. But many exceptions exist in situations where the statement is one expected to be "generally" reliable -- medical records, business records, etc. So before I can sign on to more information is superior, I need to know a *lot* about where the line is drawn and what 'extra' information we're talking about.
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Oh, and to be clear: I have no real opinion on the guilt or innocence of the accused. I am only commenting on the procedural points above. I'd need to look a low closer at the evidence to have a good opinion one way or the other.
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