JUSTICE and TRIAL
From Cyberlaw
Contents |
Problems, Reading & Links
The Law Lord
Problem - King Solomon's Judgment (p. 3) The Wisdom of Solomon
Nesson, "The Evidence or the Event? On Judicial Proof and the Acceptability
of Verdicts" (s)
Kadri, The War Crimes Trial (s)
Chalabi, Saddam
Class Notes: Intro
- Messages – Aristotle. Character, logic, spirit.
- Idea of difference
- Patterns of thought/taxonomy
- Evidence: how we build persuasion into an institution, process, machine.
- Evidence as a form of cyberspace. The message that we look at now is one that communicates in a very new information environment. Understanding the way the message works requires understanding the message space.
- Poker; learn more about what your opponent is hiding than they do what you’re hiding
- Jamaica is way above its weight in rhetorical terms
- Restorative justice prison project. Problem: as inmates come up for parole, they face original unresolved enmities. Solution: message making process.
- Prison; the extreme expression of the authority of the state. two laws: inmate law and authority law.
- Within hell, a deeper hell; homosexual section.
- Authority law = guard law.
Solomon
- “you are the true mother of this child”
- why does this little piece of evidence about the woman saying don’t kill the child convince us?
- Evidence + context ‡ conclusion
- Can you create a story where Solomon gets it wrong? What is he doing?
- The person who’s willing to sacrifice gets the goods. Which is the sacrifice, the killing or giving the child up?
- Compare to Isaac story?
- Lawyer for woman # 2
- She’s following the king’s orders. Devout and deeply schooled.
- Woman # 1: half a baby isn’t worth it; i surrender; maybe afraid of blood;
- So on what basis does the judgment make sense? The evidence is ambiguous depending on what backstory you adopt.
- Maybe have more hearings. He should award the child to the best mother.
- Best interest of the child standard?
- But if that’s the reason why you’re reassigning, then why this mother and not some other person who’s really a better mother? This is not going to be easily accepted.
- So is it that the wisdom of Soloman lies in his not explaining? Imagine two soloans:
- Divine wisdom, just knows who the mother is.
- Cognizant of the inadequacies of the evidence presented as the basis for a firm conclusion. But aware that he sits as the law lord. He knows he’s not bound to explain his actions. Gives an answer that provides as little as possible grounds for dispute.
The Law Lord
- Imagine a rhetorical space where the objectives are to persuade people to honor and respect the law.
- The law lord makes a manufactured form of truth. May not be the actual truth.
- Is in competition with other lords of the rhetorical realm, contesting to make truth: media, religion, science
- We’re in a rhetorical environment where truth is up for grabs and institutions are competing to make the truth.
- The united states is more heavily built on law than almost any other country
- Verdict: vera dicta.
- The trial process as we know it is a procedural machine that produces verdicts. a dispute resolution machine.
The magic quarter
- Like witnessing an accident. After the evidence took place, the accident doesn’t exist anymore, time moves forward. The only thing that continues to exist about that accident is the evidence of it (witnesses, rubber marks, light timers).
- We want a jury of people who have no idea which hand he put it in. no background knowledge allowed.
- From the viewpoint of the Law Lord, does it make any difference which hand it was actually in? no. what does make a difference to the Law Lord is that the verdict has evidence to support it and was fairly arrived at. If that's the case then the Law Lord will have done her job of dispute resolution.
The internet represents an inflection point in the structure of communications technology. Old media + new media
War Crimes Trials
War crimes trials
- Saddam, Milosovic, Pinochet
- Is there any purpose served by allowing a murderer to walk free? What is at stake here is the existence of humanity itself.
- Nuremberg was trying to move in the direction of no more war
- Four powers resolved differences and agreed on the law to govern the trial.
- The idea of holding individuals responsible for what the govt did was unheard of. Was criticized for 8being retroactive.
The crime of silenece as atrocities occur
- Is this trial a good idea? Is this kind of trial a good idea? Is it even possible to aspire to the typical objectives a trial has when the situation is of an international variety with multiple sources of power?
- Stalin was the master of show trials. Used them as a way of putting out message. Saw the utility of such a trial for the Nazis.
- Interesting backstory of Justice Jackson, who insisted on at least a patina of American justice, where someone would be able to put on a defense.
- Creating out of whole cloth a procedure whereby to accomplish certain objectives.
- Are we going to stop war with Nuremberg? Does it represent an agreement that henceforth atrocities will be tried by this methodology?
- For whom were the Nuremberg trials effective?
- What was the difference between proceeding by that method and churchhill’s method?
Chalabi piece
- given the objective of dispute resolution, what is your read on this trial?
- Problems: many see it as a show trial put on by the invaders.
Evidence history
- One way to start with the rules is with a body of text.
- Nesson thinks this is misleading in terms of the practice with evidence rules.
- Evidence wasn’t codified until recently. Came down from the british, and up from the states not codified by appellate courts.
- Civil rules 1939; huge unification of the federal process
- Rules of evidence are extensions of the rules of civil and criminal procedure.
- There was an effort to unify evidentiary practice
- Common rules ‡ lowest common denominator approach. Reform was a secondary motive.
- While there are differences, we do operate now under a pretty much common set of rules… but don’t think of them as a text, as that would misunderstand the structure of the machine.
- The principles come first, the rules come second.
Quick overview
- Rule 102:: “These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”
- This is the power of the law lord. This is our machine.
- Words often have meanings that we lose sight of.
- Experts = very controversial
- The hearsay rules are an amazing mess
- What’s true of individuals regarding laying down digital track is true much more so of corporations.
