a thought about perjury developments in Martha case:

[Tina H]

When we see government forensics experts caught in serious perjury like this (and this ain't the first time), then how can ever be convicted under the "beyond reasonable doubt" standard that we use in criminal trials.

I have never sat on a jury, but, trying to imagine myself in that situation:

If there is some non-negligible probability that evidence was manufactured by the government, then wouldn't reasonable doubt always exist in every case. How would I ever convict? More importantly, how could *any* jury ever, in good faith, vote "guilty beyond reasonable doubt." On the other hand, we can't just set free every alleged criminal -- that would lead to bad results.

Is "beyond reasonable doubt," in reality, code for some different standard of proof? If so, what is this real standard of proof we are supposed to use in our own minds when we sit on a jury?

[Eric J in MN]

1. I've heard it means that you're 90% sure.

And you should definitely consider the entire context and not just believe what the govt. says it found.

[Tina H]

5. Reply

The "entire context" approach will indeed often be useful. Here, I think of the OJ Simpson case where there was so much independent and consistent evidence that it wouldn't make a difference even if a piece or two were faked. (But, see replies #3 and 4 for a slightly different perspectives on the OJ case.)

However, often a case will come down to a single DNA sample or a single smoking gun document or a single videotape. In these cases, there is no "entire context." In these cases, I am still not sure what to do.

Response to 90% comment:

I have never heard this and I believe it has no solid basis in US law.

However, on a related note, if they put me in charge of re-making the legal system from scratch, here is how I would do it:

Instead of "guilty / not guilty" votes, each juror would give their confidence level of guilt (eg, 0%; 25%; 95%; any percent!). These numbers would then be crunched by an algorithm set by law for all criminal cases. The aggregate confidence that popped out of the number crunching would be used as the determination of guilt or not-guilty.

When I have suggested this idea, it is highly unpopular. However, I think it allows a juror to honestly reflect what is going on in her head. It is not fair to ask people firm-yes or firm-no questions when they are, and should be, in a zone of doubt and uncertainty.

[Warpy]

6. Scotland's got the right idea

There are 3 possible verdicts: guilty, not guilty, and not proven. The latter allows that the case might have been unsound but that the person had a high likelihood of being guilty. It carries a great deal of stigma, especially when the person runs afoul of the law again.

As for Stewart, the main thing she was found guilty of was lying to investigators. My gawd, are we now facing penalties if we don't incriminate ourselves? Whatever happened to the fifth amendment?

This whole thing stinks, and should be thrown out.

[Tina H]

8. yes Scotland allows jurors to express three levels of confidence

and three is better than two. I would still rather have a choice of a hundred confidence levels, which is what I am basically proposing.

on edit: as I understand Scotland, the *legal* effect of a not guilty verdict is the same as the *legal* effect of not proven. (I understand that these verdicts may differ somewhat in their extra-legal effects.)

However, pondering on this leads to a new idea:

maybe the extent of punishment can be correlated with confidence levels. Obviously, if the aggregate confidence is low enough, then there should be no punishment whatsoever. However, for aggregate confidence levels high enough to trigger punishment (for example, Eric J's magical 90%), then maybe punishment should increase with the aggreagte confidence of the jury.

[Snoggera]

9. Not good for the US system

The idea behind guilty or not guilty is to avoid the stigmatization of those not proven guilty, and restrict the government's power. Innocent until proven guilty. I still like the sound of that.

Innocent or guilty removes a layer of governmental power. If "not proven", then one could conceivably be tried again for the same crime if the government chose to do so?

[Tina H]

10. Maybe the prohibition of Double Jeopardy should be less than absolute.

More specifically, maybe the prohibition should not be applied in situations where the jury is somewhat confident of guilt, but not quite confident enough to convict.

One might argue that the government would then run roughshod, but remember, the jury would still be operating as a check on the government. What I mean is this:

if the jury really wants the defendant punished, they can vote guilty

if the jury feels that the defendant shouldn't be bothered with further trials, then vote not guilty -- this way the jury effectively prevents the government from bringing multiple trials to vex and annoy the defendant.

On the third hand, if the jury feels somewhere in between these two extremes, maybe the fairest thing to do is to say to the defendant: "okay, we won't send you to jail yet, but we are so suspicious of you that we give the government permission to come back after you later on these same charges.

[Snoggera]

12. The idea behind prohibition of double jeopardy

is to prevent the abuse of governmental power. Either a person is innocent or guilty of a crime, and the jury decides that based upon the evidence presented.

To provide an "out" for a jury would be too tempting for many. To allow them to make a "non-decision" defeats the entire purpose of the trial. After all, why have a jury if they can't decide, based on the evidence, what occurred? Think of the thought processes involved in making a "not proven" verdict. Simple everyday indecisiveness? An unwillingness to face the possibility that a criminal would be set free to become involved in another crime? The prosecution didn't do a good enough job of persuading the jurors of guilt, so give them another opportunity?

"Not proven" would create fear of retrial. Even in the minds of the innocent. It is exactly this fear which the framers of the justice system sought to eliminate.

Not one innocent person should be made to endure the consequences of a "not proven" verdict.

[Tina H]

14. the other side of this coin . . .

is that, under the current system, juries may be erring on the side of sending unguilty people to jail because they understand instinctively that the government will have no 2d chance, and they have too much suspicion to allow the defendant to walk in freedom forever.

There is certainly evidence out there to suggest that US juries do, in fact, sometimes err on the side of sending unguilty people to jail or death row. Sandra Day O'Connor thinks this is problem. My proposal fights this problem by letting juries express their strong suspicions (when they have suspicions) in a way less draconian than sending an unguilty person to death row or jail.

If I were a defendant, and I were given the choice between immediate punishment or subjecting myself to future prosecutions, I know I would choose to waive double jeopardy. i think most, if not all defendants, would feel the same way.

[Snoggera]

15. The choices

are not just

"If I were a defendant, and I were given the choice between immediate punishment or subjecting myself to future prosecutions, I know I would choose to waive double jeopardy."

How about the possibility of immediate freedom, and future freedom from prosecution for the same crime? Maybe you would be willing to live under a cloud for the rest of your life, but I think many would not.

Is "unguilty" even a word? Why not use the accepted term - "innocent?"

Yes, innocent people are sometimes sent to jail, and that is a travesty. If jurors are unable to make up their minds, however, given the evidence presented, then they should not be on the jury.

[jobycom]

2. Good points. The perjury shows the intent of the prosecutors

The fact that the prosecutors did not catch this during the trial proves that they were more interested in conviction than in justice or the rights of the accused, or even the law. THAT alone should be grounds for a retrial.

[unblock]

3. this is basically how oj walked

remember, though, the doubt has to be "reasonable".

so just because the government perjured testimony once or twice ever doesn't make it reasonable to doubt them in YOUR case.

in order to make the doubt reasonable, the defense lawyer must present something to make other perjuries relevant. statistics might help, or comparisons. provide a motive for perjury.

defendant being black and witness being white is one possible motive. the case being high profile is another.

oj's lawyers used both these angles, sometimes very subtly.

[rooboy]

4. I didn't watch the whole OJ saga...

but the moment Mark Fuhrman pleaded the 5th about whether he'd tampered with evidence in "this or any other case", I would have acquitted OJ. Reasonable doubt could never be eliminated, imo.

[Snoggera]

7. Would a "reasonable" person conlude

that there is no other explanation for how the crime was committed.

The doubt of a reasonable person.

[Tina H]

11. I think you are getting into another area I think about:

Specifically:

when the law says "reasonable doubt" is the law talking about objectively reasonable doubt or subjectively reasonable doubt?

To try to explain this question:

Reasonable people can differ on many things. For example, reasonable people can differ on what level of confidence *should* be required to punish. Eric J thinks 90% and I think that is reasonable of him. However, maybe I think the confidence level should be 95%. Hopefully, people would think that I am also in the realm of reasonability on this, even though it is different than what Eric J thinks.

So the question is this: when Eric J and I get assigned to a jury should he be deciding his vote based on his "90%" standard, whilst I vote based on my "95%" standard. Or, alternatively, is there some objective, uniform confidence level we should both be following, regardless of our personal feelings?

[Snoggera]

13. A person should be found guilty

when a reasonable person concludes, without doubt, that they committed the crime. Without doubt. Percentages have nothing to do with it. If you personally feel a person is guilty based upon the evidence presented, and you are on the jury, then you are bound to find that individual guilty. Not 95% guilty. If, on the other hand, you feel the evidence may point to guilt, but there are questions remaining - any questions remaining - then you are bound to find the individual innocent.

It's a simple concept which has been used to protect the innocent for two centuries. People bring with them to the jury all manner of prejudices, and being human, will use what critical thinking skills they either possess or don't. If a group of them are unable to conclude guilt, the defendant is innocent.

Step 1) Evidence is presented

Step 2) Defense is presented

Step 3) Rebuttal

Step 4) Jury determines, based on the evidence, guilt or innocence.

The jury is composed of humans, and therefore bring their own perceptions to the process. If Juror Bob finds Defendant A guilty, even though he thinks he's only 90% sure, then Juror Bob has not done his duty.

[Tina H]

16. Oh, I think you oversimplify

I am not absolutely 100% confident of anything, anything! ever!

For example, I have a high level of confidence that I am sitting here in the U.S.A. typing a reply to you on a sleek and rigid black keyboard. However, despite my high level of confidence, I do have some sincere metaphysical doubt that I may indeed be a brain in a jar, orbiting Mars, and having a lifelong virtual reality experience to the effect that I am living on the Earth.

This doubt is small, but it is always there. I have other, slightly more plausible, metaphysical doubts, too. Maybe I got ahold of some bad almonds last night and this is just a fever dream from which I am about to awake ("man, I was typing all this brilliant stuff on DU -- I wish I could remember what it was now that I am awake!")

Now, let's move from matters I am relatively sure about to less sure matters. Maybe OJ acted in self defense and lied because he thought no one would believe him. Maybe he was framed. These doubts will always keep me from being 100% certain of anything as uncertain as even the strongest criminal case.

Would I have voted guilty if I were an OJ juror? You better believe it! But don't think for a second that I would have ever been 100% certain in my mind. It *is* a matter of probabilities.

[Snoggera]

17. If a "reasonable" person

believes there is doubt regarding the evidence presented by the prosecution, the defendant should go free. That doubt is based upon whether or not those testifying are believed, whether evidenced has been "manufactured" or "planted" or simply not produced in its entirety. Whether the possibility exists that other scenarios may have taken place other than the one presented to incriminate. It is not whether or not one is 90% certain that they believe a particular piece of evidence. It is based upon the totality of evidence presented; guilty or not guilty.

Hence, the difference between criminal and civil. Reasonable doubt vs. preponderance of the evidence.

This has been interesting. I don't think I have much more to add.

Simplification is necessary at times, but I don't believe I am guilty of that here. In fact, I proclaim my innocence. Perhaps there are some who would find that evidence for my simplification has not been "proven", but await further possibilities for me to prove it. I prefer to believe, with confidence, that in this case, at least, I am innocent. I will travel from thread to thread without the cloud of oversimplification hanging over me. That is not to say I may not oversimplify in the future, only that I did not in this case.

Have a great day! This was, indeed, fun, and I do see the reasoning behind some of your points. But, that is because I consider myself a reasonable person.

[Tina H]

18. Back at ya!

as you can tell, I love discussing these issues.