The Liberal Gun Club Forum

http://www.theatlantic.com/internationa ... it/258417/

"America's English-Style Legal System Evolved to Conceal Truth, Not Reveal It"

"...Changing to a truth-seeking system might be a remedy. This would require, at a minimum: outlawing the concealing of evidence; re-training academics to teach law students techniques of finding the truth instead of mugging up a million ways to defeat it; dismantling the professional cartel by training judges separately from lawyers; appointing six times as many judges, on the basis of rigorous examinations, and giving them back control of the process; compelling lawyers and judges to take an oath to tell the truth; having lay jurors and trial and appellate judges sit together to render their verdicts and levy penalties (if any) together."

One problem is much of the legal terminology is not easily understood, and is thus the legal system is kept a mysterious process. The judges and attorneys that I see who do the best job are those that try to speak in plain English. Many attorneys however unfortunately do not see their role as a "decoder" and will use the complexities and the mystique of the law to line their own pockets at their client's expense.

I have to agree with the article though. I'll write more later once I have some time.

I will be the first to advocate for a justice system that holds the pursuit of truth as sacrosanct. But this article is utter horse shit.

By all means, a return to trial by inquisition is just the fix needed to bring our legal system into the dark ages.

The conclusions drawn in the article are completely unsupported with anything resembling fact.

6. Concealing evidence. Over the last 200 years, judges have invented myriad truth-defeating devices, including a few that conceal important evidence. Here are a few:

The "right" of silence. The rule against self-incrimination is based on a lie by the first legal academic, a charlatan named William Blackstone. It's estimated to get off about a quarter of guilty defendants.
Concealing context. Serial sex criminals are largely protected by a rule that conceals evidence of a pattern of criminal behavior.
Cross-examination. Lawyers are allowed to use sophistry to make honest witnesses look unreliable.
Juries. Juries let off about 25 percent of guilty defendants, according to some estimates, because jurors are confused by concepts such as "beyond a reasonable doubt."

In France, evidence is not concealed and lawyers are not allowed to use artful lies to pollute the truth. The innocent are rarely charged; 95 percent of guilty defendants are convicted. Public confidence in the system is high.

There is no "rule against self-incrimination", there exists in our system a "right" not to be compelled to bear witness against one's self. Hardly the same thing.

An individual who is on trial for a criminal offense is on trial for a specific offense, not past behavior, any evidence of which is barred as it would serve to be prejudicial. Behavioral issues are rightly addressed at sentencing.

Juries acquit defendants because the prosecution didn't prove guilt beyond reasonable doubt...nothing about that is difficult to understand.

The clown that wrote this appears to have no experience with American jurisprudence and even less with French.

We are all witness to the prosecutorial bullshit that passed for justice in Italy during the Amanda Knox trial, however it is precisely such a system that this author contends to be a solution.

Jesus!

rolandson wrote:
By all means, a return to trial by inquisition is just the fix needed to bring our legal system into the dark ages.
<SNIP>

Even with the comfy chair?

Excellent rolandon. I like your comment enough to not just quote it and go "this!"

rolandson wrote:By all means, a return to trial by inquisition is just the fix needed to bring our legal system into the dark ages.

My hunch is here you are referring to the Napoleonic reformed inquisitorial system as the trial by inquisition. In most western countries, the Napoleonic system is still in use, with the UK and USA being the main exceptions. AFAIK all countries south of the US border and the rest of Europe follow this model. The Napoleonic system uses documents only, as opposed to documents and live testimony. There may be exceptions, but in Mexico and most countries south of our border, there is no live testimony given in court.

Which is what part of the article refers to, the drama that is created when a witness testifies. Paragraph 6 of the article I think is BS as well, but the rest of the article is correct in my view as far as it critiques our current system. Civil attorneys (as compared to criminal attorneys) are notorious for making shit up all the time. It is much like disputing Fox News, there is never an end to correcting all the fabrications and the spin. The "truth" is an elusive thing as long as someone is paid lots of money to obfuscate the issues.

If you want to sue someone or a company, you are going to have to pay quite a bit of money to arrive at the truth. How much truth can be afforded is the main problem of our current adversarial system. If you don't have the resources to go against the companies that do, you and "the truth" are SOL.

refusing witness testimony is a start. Seriously the human memory is horrible and prone to filling in blanks.

rolandson wrote:
By all means, a return to trial by inquisition is just the fix needed to bring our legal system into the dark ages.

If you read the article again, he actually is against the inquisition methods of the past, i.e. torture.

rolandson wrote: There is no "rule against self-incrimination", there exists in our system a "right" not to be compelled to bear witness against one's self. Hardly the same thing.

The effects are the same though.

rolandson wrote: An individual who is on trial for a criminal offense is on trial for a specific offense, not past behavior, any evidence of which is barred as it would serve to be prejudicial. Behavioral issues are rightly addressed at sentencing.

That is exactly what the author is stating that is wrong. Past behavior is critical information that is concealed. The reality is that past behavior is critical to assessing one's character, intent, motivations in the specific crime that one is under trial for. A serial child rapist's past crimes and behavior is a critical indicator of his behavior pattern, and hence is critical information for his trial. It is the jury's duty and responsibility to weigh that in their assessments of the evidence presented at trial, and to NOT use that past behavior as substitute for the evidence in the trial.

rolandson wrote: Juries acquit defendants because the prosecution didn't prove guilt beyond reasonable doubt...nothing about that is difficult to understand.

Try to define "reasonable", and therein lies the problem. It is a subjective rating, varying with each juror.

rolandson wrote: We are all witness to the prosecutorial bullshit that passed for justice in Italy during the Amanda Knox trial, however it is precisely such a system that this author contends to be a solution.

I don't see where that is advocated for in the article. That Italian trial was not bereft of all the drama and theater that the article highlighted.

First, let's clarify something. The article is focusing on criminal cases, not civil cases:

Serial sex criminals are largely protected by a rule that conceals evidence of a pattern of criminal behavior.

Then there is the issue of "reasonable doubt." Not a concept used in civil cases.

Are there problems in the US legal system. Yes? Is Mr. Whitton's article a cogent response to the problems? Not anywhere close. Rolandson is right. The article is bullshit. (Well, rolandson said "horse shit." Close enough.) I do not fully agree with rolandson's critique though, mainly on the matter of reasonable doubt. The concept of "reasonable doubt" has been a problem in common law countries. See Mulrine, Thomas V. "Reasonable Doubt: How in the World Is It Defined?" American University International Law Review 12, no. 1 (1997): 195-225. It happens to be available on the Internet:

http://digitalcommons.wcl.american.edu/ ... text=auilr

The article points out that the Americans have had a very hard time with the concept. Ditto for the English. The Australians for their part just gave up trying to define it and forbid their judges from trying to define the term. Canadians, on the other hand, came up with an intelligent definition for it. Mulrine suggests using the Canadian model.

But no, what common law countries should do, according to Mr. Whitton, is do like the Australians did: give up! Then as a solution to giving up trying to define "reasonable doubt" we should take inspiration from the French system! Mulrine's article and everything I've looked at indicates that countries that have an inquisitorial system have recently been moving more towards an adversarial model, including France. How ironic. But let's ignore that and look at what instruction is given to French jurors about the standard for conviction (Code the procédure pénale, Article 353):

Avez-vous une intime conviction ?

If you have this "intime conviction" then convict. If not, then don't. There is nothing, absolutely not-a-thing, clearer about "intime conviction" than "reasonable doubt." Both are vague terms. At which point do I become convinced? How intimate must my conviction be to be intimate enough? Who knows?

But here's the cherry to plop on top of our proverbial sundae. That damn right to not self-incriminate. This right is soooooo evil! We should follow France's model! Yeah... except that France was found to be in violation of human rights:

http://combatsdroitshomme.blog.lemonde. ... -c-france/

La France a été condamnée par la Cour européenne des droits de l’homme pour violation du droit à un procès équitable (Art. 6).

[...]

Saisie d’une allégation de violation du droit à un procès équitable au motif que, selon le requérant, « l’obligation de prêter serment pour une personne placée en garde à vue porte nécessairement atteinte à son droit au silence et son droit de ne pas participer à sa propre incrimination » (§ 32), [...]

In brief, the European Court of Human Rights found that France was violating the right to remain silent and the right to not incriminate oneself. Ha! Yeah... here's a model we should follow.

lemur wrote: In brief, the European Court of Human Rights found that France was violating the right to remain silent and the right to not incriminate oneself. Ha! Yeah... here's a model we should follow.

First of all, if you're going to provide a reference, do so with an English one which everyone can understand properly. As it turns out, a description of the case you're referring to can be found here, in English:

http://www.loc.gov/lawweb/servlet/lloc_ ... 02318_text

"(Oct 18, 2010) On October 14, 2010, the European Court of Human Rights condemned France for violating article 6, sections 1 and 3 of the European Convention on Human Rights (right to remain silent and not to incriminate oneself) in the case of Brusco v. France. (European Court of Human Rights, Brusco v. France [in French] (Oct. 14, 2010),http://cmiskp.echr.coe.int/tkp197/view.asp?action=ht
ml&documentId=875630&portal=hbkm&source=externalbydocnum
ber&table=F69A27FD8FB86142BF01C1166DEA398649.)

The facts are as follows: B.M. was attacked by two hooded individuals in the underground garage parking of his building. He filed a complaint against his wife and Mr. Brusco, whom he thought were having an affair. Brusco was heard as a witness and asked to swear "to tell the truth, the whole truth and nothing than the truth," as a witness could be required to do so under a provision of the Code of Criminal Procedure that has since been abolished. He confessed to having hired two men and paid them to scare B.M. into leaving his wife, but denied having asked them to use any physical violence. He was not assisted by an attorney. At the time he was heard as a witness, Brusco was in fact already a suspect, as the two presumed attackers of B.M. had been arrested earlier, and one of them had identified Brusco as the mastermind behind the attack. Brusco was not successful in his attempts before the French courts to have his statement made under oath not entered into evidence, and he was sentenced to five years of imprisonment based in part on the statements he made as a witness. (Id.)

The Court noted that Brusco, who was in fact a suspect rather than a witness at the time he was placed in police custody and interviewed, had not been informed of his rights to remain silent, not to answer any questions, or to answer only those questions he wished to answer. In addition, he was only allowed to have an attorney after 20 hours in police custody. The seven judges of the Court unanimously found that his right to not incriminate himself had been violated, and France was ordered to pay €5000 to the applicant to cover his moral damages and €7,000 for costs and expenses (about US$7,036 and 9,850, respectively). (Id.)

On July 30, 2010, the French Constitutional Council had already found that certain provisions of the Code of Criminal Procedure governing the general regime of police custody (garde à vue) were unconstitutional. In particular, the Council held unconstitutional the provisions that either excluded or limited the right of an attorney to be present during the interrogation of his client and limited the attorney's access to the client's file. The Council gave the government until July 1, 2011, to reform this regime. (Décision no. 2010- 14/22 QPC du 30 juillet 2010, LEGIFRANCE (July 30, 2010), http://www.legifrance.gouv.fr, File: les autres textes législatifs et réglementaires). (See Nicole Atwill, France: Provisions of Criminal Procedure Code on Police Custody Found Unconstitutional, GLOBAL LEGAL MONITOR (Aug. 13, 2010), http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l2
05402156_text.)

The Minister of Justice has prepared a draft law on police custody that was presented to the Council of Ministers on October 14, 2010. The draft law authorizes the presence of an attorney at all stages of police custody, with some exceptions. (Premier Ministre, Projet de loi relative au recours à la garde à vue, government official website (Oct. 14, 2010), http://www.gouvernement.fr/gouvernement/projet-de-lo
i-relatif-au-recours-a-la-garde-a-vue.)"

So your argument is disingenuous: the French police failed to inform him of his right to remain silent and not to incriminate himself. The ECHR did NOT say that France has violated human rights by not having this provision in their law. In fact,

"In France, the French Code of Criminal Procedure[11] (art. L116) makes it compulsory that when an investigating judge hears a suspect, he must warn him that he has the right to remain silent, to make a statement, or to answer questions. A person against which suspicions lay cannot legally be interrogated by justice as an ordinary witness." (Wikipedia)

Ad Astra, what you say is besides the point. Because France is signatory to the European Convention on Human Rights, there is a right against self-incrimination in France. So Mr. Whitton is incoherent when he rails against the right against self-incrimination and then takes France as a model.

lemur wrote:Ad Astra, what you say is besides the point. Because France is signatory to the European Convention on Human Rights, there is a right against self-incrimination in France. So Mr. Whitton is incoherent when he rails against the right against self-incrimination and then takes France as a model.

Not quite. Your argument was that France is not a good model to follow because "France was violating the right to remain silent and the right to not incriminate oneself." Now you're agreeing that in France, they do have a right against self-incrimination. The article was arguing for France's model of the range of judicial power, where a lot more authority and responsibility are put upon judges to investigate, interrogate, to "dig and probe" on their own rather than relying on lawyers to do such.

In addition, you said that "The Australians for their part just gave up trying to define it [reasonable doubt] and forbid their judges from trying to define the term.", and "But no, what common law countries should do, according to Mr. Whitton, is do like the Australians did: give up! Then as a solution to giving up trying to define "reasonable doubt" we should take inspiration from the French system!"

In fact, Australia has a very good definition for "reasonable doubt": http://www.findlaw.com.au/articles/4348 ... n-in-.aspx

AdAstra wrote:If you read the article again, he actually is against the inquisition methods of the past, i.e. torture.

Well, I did...read it again. It's still horse shit, and I am terribly sorry, but I don't see where the author comes out against anything other than the right against self incrimination. I see where the author cites example of inquisitorial procedure but there is nothing condemning it.

The author suggests improvements such as:

This would require, at a minimum: outlawing the concealing of evidence;

The same "concealing of evidence" that the author suggests the right not to be compelled to incriminate one's self, or as he puts it "silence", currently provides...and

having lay jurors and trial and appellate judges sit together to render their verdicts and levy penalties (if any) together.

which in our system we call tribunals. We don't do that here in the civilian world. We have juries of our peers who are charged as the finders of fact and statues which our legislatures craft to determine penalty with judges concerned only with the rule of law relevant to procedure.

I seem to recall that the Inquisition relied upon tribunals too.

The author further states that in party to the inquisitorial method, torture was a favored method of arriving at the truth. Nothing could be more mistaken; torture was the preferred method to compel a confession, there was no interest in establishing the truth.

Reasonable doubt:

A real doubt, based upon reason and common sense after careful and impartial consideration

That's about as good as you are going to get. It's a tough standard, as it should be.

Ever sat on a jury AdAstra? From my experience, hours were spent on trying to agree among ourselves exactly what those word meant to us. I don't for a second believe it to have been wasted time.

As a wise man once said, man's idea of justice is an accursed mirage.

Having said that, I suspect the main venue of justice is in mercy.

AdAstra wrote:

lemur wrote:Ad Astra, what you say is besides the point. Because France is signatory to the European Convention on Human Rights, there is a right against self-incrimination in France. So Mr. Whitton is incoherent when he rails against the right against self-incrimination and then takes France as a model.

Not quite. Your argument was that France is not a good model to follow because "France was violating the right to remain silent and the right to not incriminate oneself." Now you're agreeing that in France, they do have a right against self-incrimination.

My statements do not contradict each other. See, it is like in the US.

1. The US has bunch of rights enumerated in the bill of rights.

2. The Supreme Court found that the US government is violating those rights.

Both can be true at the same time. Just like:

1. France recognizes a right to remain silent and a right to not incriminate oneself.

2. The ECHR found that "France was violating the right to remain silent and the right to not incriminate oneself."

Both can be true at the same time, for the ECHR did in fact find that France violated those rights. Both my source and your source confirm it. What the ECHR found was that France did in the way it applied the law violated those rights.

AdAstra wrote: The article was arguing for France's model of the range of judicial power, where a lot more authority and responsibility are put upon judges to investigate, interrogate, to "dig and probe" on their own rather than relying on lawyers to do such.

All based on misconceptions of the French situation, hence utterly useless.

AdAstra wrote: In addition, you said that "The Australians for their part just gave up trying to define it [reasonable doubt] and forbid their judges from trying to define the term.", and "But no, what common law countries should do, according to Mr. Whitton, is do like the Australians did: give up! Then as a solution to giving up trying to define "reasonable doubt" we should take inspiration from the French system!"

In fact, Australia has a very good definition for "reasonable doubt": http://www.findlaw.com.au/articles/4348 ... n-in-.aspx

That definition defines nothing. One of the problems at hand is the meaning of "reasonable" vs "unreasonable." Moving the word "reasonable" from "doubt" to "probability" does not clarify where the distinction between reasonable and unreasonable lies. The crux of the issue though is that judges are prohibited from instructing juries as to the meaning of reasonable doubt. Mulrine's article explains it better than I ever could.