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July 30, 2012

Do you think Germany or Japan could have more accurate trials than the US?

Our last few classes will be focused on a discussion and debate about whether and how criminal trial procedures can and should be structured if/when a society decides that accuracy in the guilt/innocence determination can and should be the primary goal and principal value for criminal trials.  And, helpfully, we can draw insight on this issue with reference to two notable jurisdictions based on the mid-term papers of Kyle and Joshua, who discussed trial procedures in Germany and Japan, respectively.

Below I have uploaded the mid-term papers of Kyle and Joshua, and I highly encourage everyone to read these papers closely and then share comments concerning the question in the title of this post.

Download Schrodi_GermanCrimPro

Download Maygar Japan CJS

July 30, 2012 in Course materials and schedule, Preparing for the final, Reflections on class readings | Permalink


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In defense of my previous statement that the average juror has the education level equivalent to the 8th grade:

While doing both mock criminal and civil trials during my undergraduate schooling, I was constantly instructed to form my language during the trial to this education level (except for objections, which of course were heard outside the presence of the jury anyways). The reason that it is important to know the average intelligence of jurors is because it shapes the language that you use in your statements and examinations. Besides the fact that using obscure polysyllabic words proves nothing besides your ability to use a thesaurus, using this kind of language can not only confuse the jury but also make them feel isolated from you.
This same logic can be found in the following article, which emphasizes the jurors often read below an 8th grade level so statements as well as demonstratives should take this into account: http://www.governing.com/topics/public-justice-safety/Thinking-Inside-Jury-Box.html

This is similar to the U.K., which has a seventh grade education and reading level.

As far as accuracy and individual rights/due process interests are concerned:

I would have to say that I hold both as the most important factors in the criminal justice system. While on their face these values seem to clash, I believe that both may be simultaneously achieved. However, I define accuracy based on the fact that we either find that there is enough evidence to say someone is “guilty” or “not guilty”. Note the fact that no one is ever found “innocent”. I think that accuracy is/should be pro-defendant in that manner; we're not looking to an accurate result of if the defendant committed the crime but rather looking to see if the prosecution has enough evidence to prove that they committed a crime. Following this logic, finding ten defendants who really did commit crimes “not guilty” because there is not enough evidence to prove their guilt is more accurate than wrongfully convicting one non-criminal as “guilty”. Since the burden of proof is currently placed solely on the prosecution, I believe that it is totally accurate to acquit someone if the prosecution is unable to prove guilt and bear the burden of proof, regardless of whether the defendant actually committed the crime.

That being said, if we are thinking entirely outside of the United States’ current system, and thinking only about “accuracy” in regards to BOTH rightfully convicting wrongdoers (even if there is a lack of proof) AND rightfully acquitting non-wrongdoers, then I would say that it is possible that Germany and Japan may have a more accurate system. I like the way that Japan structures their trials with both professional and lay people, especially since they have the lay people state their opinions first. I believe that this helps eliminate the problem that we discussed in class today of jurors being dissuaded from unpopular opinions in the current U.S. system. I also find it interesting that in both Germany and Japan there are professional judges that sit on the jury; perhaps it’s because I am so used to the system in the U.S. that this sounds like people are making their living, albeit a temporary living, off of being jurors. I’m not saying this is necessarily a bad thing, I just find the concept to be novel to me. I would love to sit in on some of these trials!

Posted by: Katie | Jul 30, 2012 1:19:46 PM

I haven’t done any research on the subject, but Katie’s statement that the average juror has the education level equivalent to the 8th grade seems pretty accurate to me. Most local newspapers try to maintain an 8th-10th grade reading level and I’m sure that’s for similar reasons.

I loved the discussion in class today! Particularly, I appreciated the comments about “Who Wants to be a Millionaire” and how it can relate to different kinds of juries. Pr. Berman is absolutely correct in saying that “Poll the Audience” was the most effective lifeline with the largest percentage of the audience always getting the answer right! This is similar to our current vision of the jury as a decision maker with the “wisdom of the crowds.” In comparison, “Call a Friend” allowed a person to pick one of five pre-selected friends. Assuming that the player was thinking strategically, he or she would pick five diverse experts. Yet, the friend was never any help and it would just drain out the clock! This seems to suggest that an expert (i.e. judge) is often less accurate than a crowd (i.e. jury of peers.)

I personally think that Japan’s mixed panel of professional judges and laypeople might be the best alternative. This might be a stretch, but I think our recent trivia night can be a good illustration of this. For the past five years, the team of teachers (i.e. group of experts) has fallen short of the gold prize. However, they changed it up by including a student this year and they finally answered more questions accurately than any other team. While the “wisdom of the crowds” is important, it can also be limited if the crowd consist of likeminded individuals. There should be some deliberate diversity in order to encourage different perspectives. A mixed, large jury that consist of judges, relevant experts and laypeople would probably be the best way to achieve accurate results.

Posted by: Grady | Jul 30, 2012 6:00:22 PM

When I was working at the District Attorney's office in my hometown last summer, I got to watch the trial for a 30 year old "cold case" murder. Scientists were finally able to solve the case because of DNA evidence, using technology that hadn't existed at the time of the murder.

Jury selection took an entire day, and the pool of possible jurors were asked about their legal knowledge as well as their knowledge of the scientific techniques involving DNA extraction, PCR, etc. Those who answered affirmatively were excused from jury duty. I found this really interesting- having jurors that were "too intelligent" was, in some sense, problematic. It's completely possible that a person with a background in these particular areas wouldn't be able to see past his/her own knowledge or mistakenly apply preconceived notions to the case at hand.

The mixed professional/layperson system seems to balance two things- on the one hand, having experts is helpful in a case with complicated issues (legal or otherwise). However, most defendants are probably laypersons- shouldn't the jury be more like the defendant in order to reflect the ideal of "jury of one's peers"? Who is to say that experts know better about real life experiences than the average citizen? Furthermore, a system of elites can perpetuate and reinforce harmful norms- patriarchy, white privilege, etc. Including laypeople- assuming the jury is diverse and representative of society- can help combat those problems.

Posted by: Ren | Jul 30, 2012 8:34:49 PM

Relating the lack of a formal jury to our discussion over rules of evidence, I found the following quote quite interesting:

"The absence of a jury in Germany alleviates the need for many formal rules of evidence-for example, the prohibition of hearsay evidence so characteristic of Anglo-American criminal trials. A witness in Germany can in all cases repeat everything he has heard from other persons concerning the subject matter. It is a matter for the court to judge the value of such testimony. The only existing rules govern the procedure for adducing evidence; for example, testimony must be given orally in open court. No rules exclude certain types of proof because of possible improper influence on the lay judges."

I think a big advantage of having lay and professional judges decide guilt is that there is less red tape during the trial itself. In turn, I believe a more accurate result is achieved. Although I didn't come across it in my research for my mid-term, it would be interesting to know whether the professional judges in the German system can inform/discuss the potential credibility issues of a certain piece of evidence (e.g. hearsay evidence) with the lay judges. If so, I think it further cuts down the need for any exclusion of evidence. The "non-expert" lay judge would be aware of the problems with hearsay testimony but would still be able to personally decide how much credibility he/she wants to give it.

Posted by: Kyle | Jul 31, 2012 8:56:20 AM

Katie, you mentioned in class that the average juror has an 8th grade education, not an 8th grade reading level. Not trying to be argumentative - I just thought it would be important to clarify.

Posted by: Law Student | Jul 31, 2012 10:51:12 AM

If I'm reading Katie's original post correctly, she does defend education level- of which reading level is one component. Feel free to jump in Katie or anyone else if I'm misunderstanding that comment.

Posted by: Ren | Jul 31, 2012 12:17:54 PM

As Japan’s judges seem to determine the outcome of a trial, (and assuming that Japan’s judges are truly committed to justice and accuracy,) the Japanese legal system will see more accurate trials than its American counterpart. This is also assuming that a legally trained judge committed to justice is better able to steer a trial towards the truth than the average layperson.

Japanese criminal procedure (CP) is more heavily dependent on judicial discretion than American CP. Just look at Japan’s history: the optional jury system (1928-1943) was futile in that the jury verdict had to be found acceptable by the judge. “If the jury’s verdict was found unacceptable, the judge could call a new jury and repeat the trial until a verdict was found that he agreed with.” And by the mid-20th century, where the judge-only trial system replaced the optional jury system, the conviction rate was over 99%. And finally, the quasi-jury system in place now is a mix of professional judges and laypeople. It is clear that the judge plays a heavy hand in the outcome of a trial. (Even though the professionally trained judges will state their opinions after the laypeople state theirs’, it is still probably true that judges are highly influential in the decision process. As Japan’s is a hierarchical and patriarchal culture, it follows that the laypeople would defer to the opinions of the legally trained professionals.)

Thus, as it is generally true that a professionally trained judge would be better able to seek the truth than a layperson, Japan has the potential to have more accurate trials. However, this conclusion assumes that such judges are truly committed to accuracy and do not fall prey to corruption.

Posted by: Iris J. | Jul 31, 2012 5:48:29 PM

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