Thursday, May 03, 2007
Jury Duty
I've been on jury duty these past two days. I don't want to go into detail here (*), but the notion of "reasonable doubt" has got to be one of the toughest in criminal law.
Consider your typical she said/he said case. What he says is typically some cockamamie variation on the oldest excuse in the book: "it was consensual" or "I didn't touch her beyond giving her a friendly hug" or whatever depending on what she says and what physical evidence there is of something untoward happening. And of course, what she says is typically chock full of inconsistencies, after all, even assuming the alleged crime happened, she's then a victim under considerable duress. So certainly that he manages to excuse away all the hard evidence and his lawyer manages to pick-apart her testimony and sworn statements cannot mean that the doubts one naturally has are "reasonable".
OTOH, at some point, what "she said" becomes so riddled with inconsistencies and misstatements that you cannot trust her accusations anymore. At some point, the doubts as to her testimony become reasonable and maybe what "he said", even if it seems a bit far-fetched, did happen. After all, the oldest excuses in the book might sometimes be more than mere excuses but might be the factually the case, nu? The truth is sometimes as cockamamie, if not more so, than fiction, nu?
It becomes especially troubling when you know all the inconsistencies in her testimony but, due to sloppy police work, you don't know whether his story has changed (because those alleging it has, have no proof of what he actually said other than what they say he said -- and somehow neither the prosecution nor the defense have deigned to call as witnesses those who could explain why the police work was so sloppy: I sure wish they would have given us jurors subpoena power) -- knowing more about what he's been saying all along would certainly have helped us in determining whether the doubts his story casts are reasonable!
I'm sure that people have thoroughly researched all these issues. Social scientists are bound to have studied how many details a person under duress gets wrong even if she still remembers the incident causing the duress. They must have explored which inconsistencies indicate a story is merely misremembered in the details due duress but of which the key events are recalled properly, which inconsistencies indicate that someone doesn't even remember properly the events which caused her duress to the point where it is reasonable to doubt accusations she makes and which inconsistencies indicate she's lying.
Yet they don't tell us jurors this sort of thing. So when the case boils down to she said/he said, the defense is using the Chewbacca defense, the prosecutor is using the Chewbacca prosecution ("what's a wookie doing on the planet Endor anyway, unless he's trying to do inappropriate things with Ewoks?"), and the whole thing reminds me of a trial my brother and I had as kids (with our stuffed animals as witnesses and our grandfather roped in to be the judge) where who "ate the skunk in the barnyard and who stole the cookies from the cookie jar" depended somehow on who ordered what kind of fish when our parents took us out to a fancy fish restaurant, how do you know whether your doubts about what she's saying are reasonable? How do you know whether his cockamamie story -- which if true would indicate, for an ex-soldier presumably trained to make snap judgments in the heat of battle and for someone who considers himself as good with troubled youth, he's rather dim about how to handle crises (as if I'd do better) -- is believable enough to cast doubts on the prosecution's claims?
You don't wanna set guilty people free, and you don't want to put innocent people in jail. So whaddya gonna do if you lack the evidence to determine whether your doubts are reasonable?
* it turned out that I was the alternate, so I'm not privy to the jury's actual deliberation, but they did come up with a guilty verdict that I am not sure I would have been prepared to make. I think I would have gunned for a lesser charge that there is no doubt happened even if such a verdict smacks of a "compromise" of the sort our system is not supposed to allow.
Consider your typical she said/he said case. What he says is typically some cockamamie variation on the oldest excuse in the book: "it was consensual" or "I didn't touch her beyond giving her a friendly hug" or whatever depending on what she says and what physical evidence there is of something untoward happening. And of course, what she says is typically chock full of inconsistencies, after all, even assuming the alleged crime happened, she's then a victim under considerable duress. So certainly that he manages to excuse away all the hard evidence and his lawyer manages to pick-apart her testimony and sworn statements cannot mean that the doubts one naturally has are "reasonable".
OTOH, at some point, what "she said" becomes so riddled with inconsistencies and misstatements that you cannot trust her accusations anymore. At some point, the doubts as to her testimony become reasonable and maybe what "he said", even if it seems a bit far-fetched, did happen. After all, the oldest excuses in the book might sometimes be more than mere excuses but might be the factually the case, nu? The truth is sometimes as cockamamie, if not more so, than fiction, nu?
It becomes especially troubling when you know all the inconsistencies in her testimony but, due to sloppy police work, you don't know whether his story has changed (because those alleging it has, have no proof of what he actually said other than what they say he said -- and somehow neither the prosecution nor the defense have deigned to call as witnesses those who could explain why the police work was so sloppy: I sure wish they would have given us jurors subpoena power) -- knowing more about what he's been saying all along would certainly have helped us in determining whether the doubts his story casts are reasonable!
I'm sure that people have thoroughly researched all these issues. Social scientists are bound to have studied how many details a person under duress gets wrong even if she still remembers the incident causing the duress. They must have explored which inconsistencies indicate a story is merely misremembered in the details due duress but of which the key events are recalled properly, which inconsistencies indicate that someone doesn't even remember properly the events which caused her duress to the point where it is reasonable to doubt accusations she makes and which inconsistencies indicate she's lying.
Yet they don't tell us jurors this sort of thing. So when the case boils down to she said/he said, the defense is using the Chewbacca defense, the prosecutor is using the Chewbacca prosecution ("what's a wookie doing on the planet Endor anyway, unless he's trying to do inappropriate things with Ewoks?"), and the whole thing reminds me of a trial my brother and I had as kids (with our stuffed animals as witnesses and our grandfather roped in to be the judge) where who "ate the skunk in the barnyard and who stole the cookies from the cookie jar" depended somehow on who ordered what kind of fish when our parents took us out to a fancy fish restaurant, how do you know whether your doubts about what she's saying are reasonable? How do you know whether his cockamamie story -- which if true would indicate, for an ex-soldier presumably trained to make snap judgments in the heat of battle and for someone who considers himself as good with troubled youth, he's rather dim about how to handle crises (as if I'd do better) -- is believable enough to cast doubts on the prosecution's claims?
You don't wanna set guilty people free, and you don't want to put innocent people in jail. So whaddya gonna do if you lack the evidence to determine whether your doubts are reasonable?
* it turned out that I was the alternate, so I'm not privy to the jury's actual deliberation, but they did come up with a guilty verdict that I am not sure I would have been prepared to make. I think I would have gunned for a lesser charge that there is no doubt happened even if such a verdict smacks of a "compromise" of the sort our system is not supposed to allow.
# posted by alberich @ 6:18 PM 
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Okey dokey.
The trial was actually televised (except for when the under-aged alleged victim was testifying, of course). They told us jurors, they'd respect our privacy and only show, e.g., our shoes, and not our faces -- are response was unanimous: "we scrubbed our faces and combed our hair, but forgot to polish our shoes." Evidently, my hand was visible in the coverage on local television.
The details of the case should be fairly obvious from my most recent post. But I reckon we'll talk this weekend. Cheers!
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The trial was actually televised (except for when the under-aged alleged victim was testifying, of course). They told us jurors, they'd respect our privacy and only show, e.g., our shoes, and not our faces -- are response was unanimous: "we scrubbed our faces and combed our hair, but forgot to polish our shoes." Evidently, my hand was visible in the coverage on local television.
The details of the case should be fairly obvious from my most recent post. But I reckon we'll talk this weekend. Cheers!
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