January 5
From Cyberlaw
Contents |
Intro comments
- Necker: a third view that integrates the two contrasting cubes.
- Judging how well the law is doing. How did the law treat my daughter?
- Biggest unresolved disputes for Nesson: race and gender
- You are the law (the actors, architects)
- This is a story being crafted by an ancient machine of the law
- 104(a) first the law…
- Then the law structures, as the arbiter of the ultimate question: guilt or innocence, with the standard of admission—could reasonable people differ? (RP = jury)
- And when the judge comes to instruct the jury, the judge attempts to articulate the standard of RD
Blue Bus
- Evidence intellectual history story. Decision theory in vogue, in the late 60s. wanted to apply it to the law, and wanted to create models for how the law works. But once you’re doing decision theory, you’re into probability in statistics and probability.
- The question assumes that RD is expressible as a statement of odds
- So what is different about RD? or is it just a high probability?
- There’s a puzzling mystery in the law
Prison yard problem
- 6 prisoners in the yard, 5 kill the guard, 1 hides in the shed
- assume no other evidence, no other way to get away from the pure probabilistic problem.
- If the P randomly picks prisoner #1, is this evidence sufficient to convict? No.
- What if P then calls prisoner #2, who testifies that he was the one who went and hid in the shed? (paid off, lying, mean and scurrilous person)
- The judge’s sufficiency question turns on whether reasonable people (the jury) could believe the second prisoner when he said that he was the one that hid in the shed.
- Have the odds changed once #2 testified? No. #1 is just as likely to be guilty now as he was before #2 testified, and yet now the law will back up whatever decision the jury makes about #2.
- What if we think now of just two prisoners?
- This is the case with a million stick ups. Whoever turns first gets to walk.
- Why do we do this? Why is testimonial evidence so much more powerful in the system than probability?
Guests
- Wendy Murphy
- judicial language project and sexual violence legal news project
- focusing on the criminal common law
- Martin Levin
- Plaintiff’s lawyer
- Stepped down from his position as the president of a law first and went to Harvard divinity school
- Fern Nesson
- Teaches medieval history and math at high school
- Did criminal law at MA defenders, worked on appeals
- Middlesex co. DA’s office
- Prosecuted a doctor who gave patients valium and then raped them
- Res gesta: Can you give all the circumstances surrounding an event so that the jury understands?
Question: How well did the law do by the victim in the Jamaica case?
- Wendy
- there were times when the judge intervened and made the questions clearer for the victim. That’s better than what we have in our system
- the cross-examination was very mild
- sounded like the prosecutor was asleep. Much of what she experienced didn’t come out. She wasn’t allowed to narrate. Judging credibility by a narrative is much easier.
- The extent to which her credibility was the focus was strange. There was a bunch of other evidence, much of which didn’t come in; there was DNA evidence which, if it had come in, would have spared her the ongoing attacks on her credibility
- There is no doubt that a word of a human being is legally insufficient to prove guilt BRD. It used to be that the word of a woman was per se insufficient. But we have moved beyond that. As a matter of law, this transcript is full of evidence sufficient to convict as a matter of law. The fact finder could say, the inconsistencies on the peripheral evidence undermine her credibility on the critical facts, but that’s not essential.
- What prejudices does the fact finder bring to the case? And are they fair?
- Fern
- The way this woman was victimized was by this trial. There were other witnesses, other avenues of evidence, leaving her in better shape now.
- At this point, everyone is looking at her. If there had been other evidence and a hard fought trial, she would not be in this position.
- Martin
- As a society and law business, we have forgotten what our job is, which is to find the truth
- In this case, there was no search for the truth, and therefore, an injustice was done to all
- This transcript is lacking in evidence of what happened that night.
- Our job should not be to do and say things that purposefully leave things out
- Her testimony at trial was not her memory of that event. There was information added to her account, because that couldn’t have been her memory, because her testimony is self-contradictory.
- She says from the beginning that when she was put in the back seat face down. How does she know what roads they took?
- What about the judge’s beliefs?
Should the names in the transcript be changed?
- A preliminary question in giving the class this transcript was whether he should change the name of the victim. To allow discussion, he changed the names before giving it to us.
- As long as D can still confuse and confront the victim, there seems to be no problem with hiding the name
- If the victim was identified, it could make her a target for repeated attack
- Disguising rape victims names reflects a judgment that rape is shameful
- Liberating people against their will is problematic
- Naming victims exposes their privacy rights unconstitutionally to attack without due process
- std’s, abortions, wounds, etc., will come out in the public venue
- the victim always has constitutional rights
- So should the accused have anonimity until he’s convicted?
- Before he’s publicly identified, he gets due process (show cause? hm.) she gets nothing.
- The victim is charged with nothing. There is no excuse for doing anything punitive to the victim. She is not on the same moral field as a person formally charged. We have a public safety based need to know when someone has been indicted for rape or murder, whereas there is no need to know when the woman next door has been assaulted.
- You might say that the accused should not be named until a later phase for independent reasons, but you cannot compare it to naming the victims.
- False information gets repeated and printed by the media about impugnity
- The criminal justice system is not about a search for the truth. It’s about winning. That’s why you get to lie without impugnity.
- Knowing that the name was changed affects how we can connect to the victim
- Once something enters the media, the truth stops.
- Uh, what is the truth? Isn’t it that what we socially construct?
- What does “truth” mean?
- Plaintiff’s lawyer: That there are two sides here
- Wendy: depends on what context you’re in. i’m not upset that the criminal justice system isn’t a search for the truth, since i like the 4th and 5th amendments. The exclusionary rule thwarts the truth for a valid purpose. But the narrative truth of a victim’s experience doesn’t get play in any of these spaces. There is no venue for truth telling when you’ve been victimized except in the criminal justice system.
- The defendant is not cool with the transcript of the trial being put up in text on the net. Is this something that Nesson should agree with?
Reporting back from Group Discussion
- We seemed to be talking about what the law is able to do, before we could say what it should do.
- Can we talk about racial undertones
- Should we also think of the accused as our son
- What trial procedure corresponds best to the search for the truth
- constructing truth? Or the trial as a time machine?
- Why wasn’t there more truth searching about the other witnesses?
- Reading a transcript exposes the trial process, explaining the result
- What could the two sides have done differently with the material they had to make the trial feel more complete? And thereby are you compromising truth or just creating it?
- Thinking about the car as a central piece of evidence against JC, what was his alternative fact story?
When both sides have shown themselves to have been incompentent, can we really call this a trial?
- Given the unique nature of evidence in rape, is it possible to use a reasonable doubt standard to resolved disputes in criminal cases?
- Given the defects in the advocacy here, what should the role of the factfinder be? Are we more comfortable with a judge doing that, or a jury doing that?
- How does Kevin’s program relate to this case? How does she have a voice when she’s already been forced into discussing this case?
- If you see the other side really doing an incompetent job, what responsibility do you have to make sure that the other side gets heard?
- What impact might the gender of the judge have had on this case?
Further Discussion with Guests
- Fern
- I was wondering as I listened to the arguments whether we were supposed to be having a philosophical discussion, or whether we were supposed to be advancing this case
- The basic problem we’ve all agreed on is that this was an insufficient trial, and as a result of there being an bad presentation against the D, and no defense put on, we have a situation where we have created two victims, one who was raped by someone, and now the defendant who can tell a victim’s story, that he wasn’t given a fair trial, and then the rape victim becomes revictimized because now the defendant is famous
- No matter how you define the search for truth, the criminal process should be designed to reach enough of it that people feel that both sides have been heard
- Martin (Plaintiff's lawyer)
- the question is, what can be done now?
- An objective group needs to look at all the evidence in this case
- She saw a car pass and turn around, which is the only time she had an opportunity to see the license plate. There was nothing significant of that event, and yet she has a detailed memory of the license plate many hours later. She came from from a bar after drinking
- There is no evidence about when she gave the license plate
- We first have to decide, what is the justice system
- Where is the report of what the men robbed at gunpoint said?
- What about the other victim?
- Fern
- your question is a little unfair. It would be better to have all the evidence out on the table.
- Wendy
- we all agree that this was a skimpy presentation of the evidence. But let’s assume that this is a two page bit of testimony from the victim.
- If all you have is the victim saying she saw the man, how do you get at the truth?
- Nesson
- would this case strike us significantly differently if this was a jury trial?
- That will lead us to questions about how we constitute a jurys
- The evidence law that we learn here is essentially jury trial law
- Why are we so committed to the jury?
- More Comments
- The identitification issue doesn’t go to her credibility but to her reliability
- Unless you believe that his imprisonment makes her whole, then the only harm is that he’s being put in prison. He doesn’t have to say anything
- But he’s giving us nothing else to believe
- so you’re requiring him to give an alternative narrative
- the constitutional right to remain silent is not a constitutional right to lie
- the question is about resolution post conviction
