This made me sad on several levels

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Flinders
Posts: 3023
Joined: 10 Mar 2009, 6:47pm

Re: This made me sad on several levels

Post by Flinders »

thirdcrank wrote:
Flinders wrote: ... Isn't it the judge's job/duty to rebalance the case presented and pull it back to the facts?


In England and Wales, a criminal case is tried on the admissisble evidence. While this should establish some facts, the process seeks to establish whther or not the defendant is guilty. This is really a concept rather than a fact, although once the jury's verdict has been delivered, it's treated as fact.

The judge's role is to ensure that the trial takes place within the rules, especially insofar as they govern what evidence is admissible. The judge has a case management role to try and keep things moving and focused on the job in hand. I suppose this might be described as pulling it back to the facts, but if there's any leeway, the defence has to have the benefit of the doubt. In its final submission, the defence can use all sorts of rhetoric to try to win over the sympathy of the jury or introduce doubts. At the conclusion of the defence case and before the jury retires to consider its verdict, the judge sums up the evidence, drawing particular attention to any crucial evidence from either side and then explains the relevant law. If the defence advances an argument which isn't a defence, the judge must explain that to the jury (and then wait for the appeal in the event of a conviction.)

IMO the word "rebalance" doesn't describe a judge's role.


Agreed, not the right word. maybe 'drag the case back to the judging on the facts and tell the jury to disregard the rhetoric' might be better. :(
I also worry about victim statements and references to the job of the defendant (when that's not specifically relevant) can, in their different ways, create a system where the same offence may be treated more or less leniently according to the jury's perception of the status of the victim or perpetrator. Someone who murders a tramp with no family should not get a less severe sentence than someone who murders someone with a more fortunate life. Likewise, juries ought to be discourage from finding someone innocent just because they approve of them in other ways and don't want them to get a stiff sentence.
reohn2
Posts: 45158
Joined: 26 Jun 2009, 8:21pm

Re: This made me sad on several levels

Post by reohn2 »

Flinders wrote:.............. Likewise, juries ought to be discourage from finding someone innocent just because they approve of them in other ways and don't want them to get a stiff sentence.


Isn't this the whole problem?
When defendent's 'brief'(which are anything but) gets out the violin,and begins the 'of good character,fine upstanding charitable member of the community'speech opinions begin to change in jury member's minds.When in reality the plane bald facts should be adhered to irrespective of anything else IMHO.

The justice system reeks of injustice :twisted: :twisted: :twisted:
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"All we are not stares back at what we are"
W H Auden
thirdcrank
Posts: 36776
Joined: 9 Jan 2007, 2:44pm

Re: This made me sad on several levels

Post by thirdcrank »

It's arguably a fault with the jury system that emotion may play too great a part but the counter argument is that juries somehow reflect the feelings of ordinary people in the face of authority. The reality is that the defence rightly try at every stage of the proceedings to represent their client's interests by having charges dropped, reduced, dealt with by caution or whatever. If the system's working correctly, if when it gets to court, unless something goes wrong like a witness dropping dead, conviction should be almost inevitable because of all the filtering that has gone on before. Unless there's a point of law to be argued, a bit of thespianism may be all that's left, combined with the hope that in any twelve people chosen at random, there may be enough people who will, for whatever reason say NOT GUILTY no matter what the evidence. It's a bit of a wildcard.

There are vested interests here and it won't change much anytime soon, IMO. I get the impression that the govt has decided it's all too expensive to bother with, which is why the enforcement of some offences has collapsed. Spin is cheaper than delivery.
reohn2
Posts: 45158
Joined: 26 Jun 2009, 8:21pm

Re: This made me sad on several levels

Post by reohn2 »

thirdcrank wrote:....... Spin is cheaper than delivery.

Ain't that the truth!
It's a sickening school tie scenario and sad in so many ways.
Meanwhile the innocents suffer whilst the bad guys win :twisted: :twisted: :twisted: .
-----------------------------------------------------------
"All we are not stares back at what we are"
W H Auden
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