Post by colin bowman on May 22, 2007 10:27:31 GMT 1
The corollary of the defence and prosecution having a role of 'educating' the jury as to the 'facts and truths' of the case, is that the terms of prosecution and defence should allow for such education.
In some manner, the protocols and probity of this corollary, are not completely dissimilar functionally, from standardisation in the electronics industry; perhaps even with standardisation in experimental and reporting procedure: everyone operating within certain parameters, and thereby foregoing individual locus maximisation, in order to go for a general locus optimisation; where the system as a whole coheres consistently, works efficiently and effectively, and gives basis for an in principle unlimited expansion.
Just as it is not a good idea to leave the consumer to achieve their own standardisation through selection, it is unwise to leave a jury having to correct for 'the shoddy and cack-handed based on hunches': generally a jury will not be able to so correct; and will have to proceed on a basis of trust or antipathy, towards this and that part of prosecution and defence.
Science which was over complex and wooly, but skilfully presented, thereby avoiding full peer scrutiny: would not be useful; and would probably be harmful.
The shoddy and the cack-handed and the hunches, translated into an investigation and prosecution, that in no way had the methodological coherence and clarity it should have. And remember the critical matter that all this was based on a then novel collusion between police, prosecutors and fiscal.
Add to this, the general movement often now noted, from any authentic presumption of innocence, to an accused having to effectively prove their innocence: and defence could be left with a Gordian Knot not able to be cut through. Where yes they could rebut the prosecution, at an intellectual and analytical level, but no that defence would remain inaccessible to a general jury.
If a prosecution exploit, in their prosecution, what the defence cannot rebut at trial, for social-psychological reasons to do with jury persuasion; then legal process fairness has been fundamentally undermined, by an adversarial approach which has got out of hand.
This is a general criticism advanced of many high-profile prosecutions led by Alan Turnbull. He has led empirically opportunistic prosecutions, which cannot be defended against: not because of their empirical probity and strength; but because of their convoluted complexity.
A critical aspect of this critigue in these Turnbull led convictions, is that police become drawn into dealings with evidence, which takes them to the limits of evidential validity, and arguably beyond. The argument of 'evidence-tampering' by police, figures in several current appeals in these Turnbull convictions. The basis of argued for tampering appears social-psychological (political), rather than being straightforwardly malicious; except perhaps in the PanAm Megrahi case.
That PanAm case has been condemned by the UN observer and by Scottish legal academics. Its evidential basis is a burraugh (sp).
I don't think that a jury member at trial can control for these factors, that are now having to be dealt with at appeal.
The most concerning matter in the argued for evidence-tampering in the Luke Mitchell case, can be looked at in terms of 'researcher effect' and 'demand effect'. The circumstantial argument implicating Luke Mitchell, depends on 'nuances' of perception and interpretation: and, it can be argued, the police pressed hard to get the evidence they needed for conviction; where, as was argued at trial in defence, that evidence can be seen as an epiphenomenon of just how they so pressed. The argument here is that the police 'created' the testimony, which was led at trial as the circumstantial case against Luke Mitchell. The police took part in a complex socio-psychological process, where the implicating testimony was a 'product' of their active involvement.
Because of the operational collusion between police and prosecution and fiscal (and others), consideration of the prosecution cannot be confined to the leading of evidence at trial; the (police) production of the evidence so led, being an integral and equal part of that prosecution.
So, I deem the prosecution fundamentally concerning on many counts.
One, I suspect the probity of the police production of evidence through investigation.
Two, I suspect the prosecutions discharge of duty towards the jury: judging that they made it effectively not possible to compare and contrast the prosecution and defence arguments.
And all that without considering the media, and colluding institutions like education.
No jury could be expected to control for that, and thereby get to some basis for comprehensive scrutiny, and consequent judicially fair judgement.
And for all the weaknesses that have been picked in the trial after the fact, the defence were still unable to exploit them and secure a 'not guilty' or even a 'not proven' verdict.
I'll agree that what the prosecution were presented to work with was shoddy and cack-handed at best, and how it even got to trial based on someone's 'hunch' I have no idea, and, to me, that's where the system failed.
In some manner, the protocols and probity of this corollary, are not completely dissimilar functionally, from standardisation in the electronics industry; perhaps even with standardisation in experimental and reporting procedure: everyone operating within certain parameters, and thereby foregoing individual locus maximisation, in order to go for a general locus optimisation; where the system as a whole coheres consistently, works efficiently and effectively, and gives basis for an in principle unlimited expansion.
Just as it is not a good idea to leave the consumer to achieve their own standardisation through selection, it is unwise to leave a jury having to correct for 'the shoddy and cack-handed based on hunches': generally a jury will not be able to so correct; and will have to proceed on a basis of trust or antipathy, towards this and that part of prosecution and defence.
Science which was over complex and wooly, but skilfully presented, thereby avoiding full peer scrutiny: would not be useful; and would probably be harmful.
The shoddy and the cack-handed and the hunches, translated into an investigation and prosecution, that in no way had the methodological coherence and clarity it should have. And remember the critical matter that all this was based on a then novel collusion between police, prosecutors and fiscal.
Add to this, the general movement often now noted, from any authentic presumption of innocence, to an accused having to effectively prove their innocence: and defence could be left with a Gordian Knot not able to be cut through. Where yes they could rebut the prosecution, at an intellectual and analytical level, but no that defence would remain inaccessible to a general jury.
If a prosecution exploit, in their prosecution, what the defence cannot rebut at trial, for social-psychological reasons to do with jury persuasion; then legal process fairness has been fundamentally undermined, by an adversarial approach which has got out of hand.
This is a general criticism advanced of many high-profile prosecutions led by Alan Turnbull. He has led empirically opportunistic prosecutions, which cannot be defended against: not because of their empirical probity and strength; but because of their convoluted complexity.
A critical aspect of this critigue in these Turnbull led convictions, is that police become drawn into dealings with evidence, which takes them to the limits of evidential validity, and arguably beyond. The argument of 'evidence-tampering' by police, figures in several current appeals in these Turnbull convictions. The basis of argued for tampering appears social-psychological (political), rather than being straightforwardly malicious; except perhaps in the PanAm Megrahi case.
That PanAm case has been condemned by the UN observer and by Scottish legal academics. Its evidential basis is a burraugh (sp).
I don't think that a jury member at trial can control for these factors, that are now having to be dealt with at appeal.
The most concerning matter in the argued for evidence-tampering in the Luke Mitchell case, can be looked at in terms of 'researcher effect' and 'demand effect'. The circumstantial argument implicating Luke Mitchell, depends on 'nuances' of perception and interpretation: and, it can be argued, the police pressed hard to get the evidence they needed for conviction; where, as was argued at trial in defence, that evidence can be seen as an epiphenomenon of just how they so pressed. The argument here is that the police 'created' the testimony, which was led at trial as the circumstantial case against Luke Mitchell. The police took part in a complex socio-psychological process, where the implicating testimony was a 'product' of their active involvement.
Because of the operational collusion between police and prosecution and fiscal (and others), consideration of the prosecution cannot be confined to the leading of evidence at trial; the (police) production of the evidence so led, being an integral and equal part of that prosecution.
So, I deem the prosecution fundamentally concerning on many counts.
One, I suspect the probity of the police production of evidence through investigation.
Two, I suspect the prosecutions discharge of duty towards the jury: judging that they made it effectively not possible to compare and contrast the prosecution and defence arguments.
And all that without considering the media, and colluding institutions like education.
No jury could be expected to control for that, and thereby get to some basis for comprehensive scrutiny, and consequent judicially fair judgement.
tinchick said:
I don't think the manner in which the prosecution conducted their case has cause for concerns, the fact they were lacking any hard evidence made their job difficult, but they pursued, and successfully showed their case to the jury, who found this man guilty. That is their job, is it not?And for all the weaknesses that have been picked in the trial after the fact, the defence were still unable to exploit them and secure a 'not guilty' or even a 'not proven' verdict.
I'll agree that what the prosecution were presented to work with was shoddy and cack-handed at best, and how it even got to trial based on someone's 'hunch' I have no idea, and, to me, that's where the system failed.