Linked by Thom Holwerda on Tue 18th Dec 2012 14:31 UTC
Legal Lots of news about Apple vs. Samsung (and vice versa) in both the US and Europe today. In the US, judge Koh dealth two blows: one to Samsung (no retrial based on juror misconduct), the other to Apple (no permanent sales ban). In Europe, in the meantime, Samsung announced it will cease all lawsuits injunction requests against Apple... But only in Europe.
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RE[2]: Jury qualifications?
by saso on Tue 18th Dec 2012 20:33 UTC in reply to "RE: Jury qualifications?"
saso
Member since:
2007-04-18

Because this flies in the face of the very foundations of democracy and would cause the entire legal structure to grind to a halt and cease functioning?

There is so much wrong with this statement, I'm almost at a loss as to where to start deconstructing it first.

1) Your statement is just plain false. Jury trials are used pretty much only in common-law systems (containing a small portion of the world's population). Now look at e.g. those poor Europeans! (hint: it's satire) So even without a jury, legal systems seem to work just fine.

2) Democracy is a form of government, which is (hopefully) distinct from the judiciary.

3) Most importantly, and I can't stress this enough: justice isn't a democratic process! We don't get to decide democratically on what the truth is. Justice, like science, is dedicated to the pursuit of truth and what really transpired, otherwise it would just devolve into a tyranny of the majority - see ancient Athens for an experiment in that.

If a court could only seat a jury of qualified legal professionals who also happen to be experts in any particular area at question at trial (this could range from computer science, patent law, homicide, forensics, drug trafficking, domestic abuse, psychology, and on and on -- offering covering multiple areas within the same trial), one would likely never face a jury of your peers -- in fact, every court would be very hard pressed to ever fill all the seats in a jury box with such rigorous requirements.


And yet systems like this (though not precisely as much as the scientific peer review meritocracy) routinely operate in most of the world, i.e. in countries which do not have jury trials, but trials are instead decided by a qualified judge or panel of judges.

Reply Parent Score: 4

RE[3]: Jury qualifications?
by Thom_Holwerda on Tue 18th Dec 2012 20:39 in reply to "RE[2]: Jury qualifications?"
Thom_Holwerda Member since:
2005-06-29

but trials are instead decided by a qualified judge or panel of judges.


Jury trials is one of those foreign concepts I just can't wrap my brain around, no matter how much I try. A bunch of idio... Sorry, "peers', who have no desire to do what they do, get to decide guilty or no. Even if you only have a tiny modicum of knowledge about the workings of the human mind, you should know full well how utterly nutterly butterly this is.

Every person who ever ends up in court - traffic violation or murder - should be judged by people who know their shit and who are trained to do so - not by a bunch of bored morons.

Edited 2012-12-18 20:40 UTC

Reply Parent Score: 5

RE[4]: Jury qualifications?
by Nelson on Tue 18th Dec 2012 20:43 in reply to "RE[3]: Jury qualifications?"
Nelson Member since:
2005-11-29

It is a strategic legal maneuver if you wish to appeal to emotion, something a panel of 12 people are more susceptible to.

You do have the right in most jurisdictions to waive a Jury trial.

Jury trials are not as common as people would think, a lot of cases are decided before they even get to trial.

Reply Parent Score: 2

RE[4]: Jury qualifications?
by HappyGod on Wed 19th Dec 2012 08:11 in reply to "RE[3]: Jury qualifications?"
HappyGod Member since:
2005-10-19

Wow, that is one cynical view you've got there!

It's pretty annoying that this kind of arrogance has crept into the left. The assumption that the public are all idiots has led us to such fantastic decisions as:

1. Speed cameras.
2. Many thousands of health warnings on everything.
3. Bans/limits on alcohol, tobacco.

The original left movement was one of faith and optimism in the general public, and the view that people were capable of deciding their own fate. Whence came socialism, communism etc.

This has now been replaced with an arrogant, cynical view that people are simple minded idiots who need hand-holding. This is clearly revealed by those annoying folks who are constantly trying to "raise awareness", which is a nice way of saying: "brow beat the plebs into caring about things I think they should care about".

It's a pretty short hop from the view that people are too stupid to be on a jury, to thinking that they are too stupid to vote.

Here's someone explaining personal freedoms a lot better than I can:

http://mpegmedia.abc.net.au/rn/podcast/2012/09/cpt_20120924.mp3

Edited 2012-12-19 08:13 UTC

Reply Parent Score: 2

RE[4]: Jury qualifications?
by stestagg on Wed 19th Dec 2012 13:04 in reply to "RE[3]: Jury qualifications?"
stestagg Member since:
2006-06-03

You're right, in principal.

Unfortunately, the one thing that jury trials are very good at defending against is corruption and institutional unfairness.

Juries are not perfect, by any means, but without a judicial system that has public engagement, and can be trusted by even the type of person who makes up a usual jury, it's hard to be able to rely on in to be fair.

In this case, I would argue against a jury trial, the matters being decided are too abstract* for untrained people to appreciate, but for normal cases, jury trials are like democracy.. shit, but less shit than the alternatives.

* legal abstractions, not conceptual abstractions

Reply Parent Score: 2

RE[3]: Jury qualifications?
by jared_wilkes on Tue 18th Dec 2012 21:22 in reply to "RE[2]: Jury qualifications?"
jared_wilkes Member since:
2011-04-25

I was going under the presumption that the original post was arguing for jury trials of vetted experts in the fields covered by the trial. Which I assure you is quite impossible. If your argument is for the elimination of jury trials entirely, that's another matter entirely.

However, I assure you that Americans, if afforded the opportunity to ban all jury trials by their peers, whether intelligent or not, in exchange for a bench trial conducted solely by judicial professionsals, the vast majority are going to choose the idiots... or at least choose to have the idiots as an option whether or not a bench trial benefits them in a particular scenario.

Edited 2012-12-18 21:22 UTC

Reply Parent Score: 2

RE[3]: Jury qualifications?
by jared_wilkes on Wed 19th Dec 2012 00:27 in reply to "RE[2]: Jury qualifications?"
jared_wilkes Member since:
2011-04-25

1) Your statement is just plain false. Jury trials are used pretty much only in common-law systems (containing a small portion of the world's population). Now look at e.g. those poor Europeans! (hint: it's satire) So even without a jury, legal systems seem to work just fine.


1a. Maybe it was a mistake to speak about democracy generally, but I'm not suggesting that because many nations have a judicial system without jury by peer, they cease to be a democracy... However, I am saying that democracy is defined by participation. Yes, through representation in most cases but also active participation. Yes, I believe democracy cannot be epitomized by a government which lacks public/peer participation in the judiciary... particularly when there are functioning democracies which do have it as an option. Thus it is an assault on democracy, generally. Secondarily, it is also an assault on this country's democracy specifically.

1b. And, that is additionally, it would cause our, America's, judicial system to not function because juries would never be finalized (again, I was presuming a hybridized jury-expert replacement. If you, like Thom, can't understand why America is founded under a hybridized common law/civil law system and propose that America drops its judicial system for one it rejected, well... that's so foundational and easy for me to understand, I don't even know where to begin explaining why that is and why that will never change... )

2) Democracy is a form of government, which is (hopefully) distinct from the judiciary.


2. Umm, the judiciary is certainly a part of the government. Democracy can certainly run through it. There is nothing logical about saying: the judicial should not be democratic. Just as the police, the sewers, park services, other utilities, (maybe) medical services, and even the legislative, or (maybe) executive branches of a government are parts of the government. And these representational units of government can and, in most cases, should be democratic -- in some form or another or when appropriate as an option.

3) Most importantly, and I can't stress this enough: justice isn't a democratic process! We don't get to decide democratically on what the truth is. Justice, like science, is dedicated to the pursuit of truth and what really transpired, otherwise it would just devolve into a tyranny of the majority - see ancient Athens for an experiment in that.


3. Justice is best served, most undoubtedly, when it is most democratic. It can only be approximated at all, in society, through democratic processes. You cannot separate justice as simply "the judiciary", apart from the other branches of government. The law is never practiced in an philosophically pure state where the legal/moral code is known, unchanging or where the truth can always be ascertained and agreed upon. Maybe you think that of your own country's non-participatory mode of adjudicating the law... Maybe you are American. I don't know. But I personally find civil law systems (most strictly civil law systems still embody democratic processes despite their lack of juries) just as fallible, if not more so, as common law systems.

For some reason, this is obvious to me: that democratic processes throughout all government functions in conjunction with other representational/civil hybridizations of governmental functioning is always a good -- and that justice, as it was prior to the founding of America and as it is in America since, should never be some technocratic bureaucracy and never will be. I think it's highly flawed and often complete shit, but I still love this system more than any other. Absolutely. I can't really follow your whole -- the judiciary is not a part of the government, it shouldn't be democratic -- line... Different strokes for different folks.

And yet systems like this (though not precisely as much as the scientific peer review meritocracy) routinely operate in most of the world, i.e. in countries which do not have jury trials, but trials are instead decided by a qualified judge or panel of judges.


Again, there was a misunderstanding. If the argument being afforded by the opposition is now: America needs to abandon its common law/civil law hybrid system that affords the option to a jury trial by a panel of your peers and fellow citizens in some cases, then I think we're pretty close to all agreeing that Apple has legally and rightfully sued Samsung in the U.S. for patent, trademark, and trade dress violations.

Edited 2012-12-19 00:40 UTC

Reply Parent Score: 2

RE[4]: Jury qualifications?
by saso on Wed 19th Dec 2012 08:41 in reply to "RE[3]: Jury qualifications?"
saso Member since:
2007-04-18

1a. Maybe it was a mistake to speak about democracy generally, but I'm not suggesting that because many nations have a judicial system without jury by peer, they cease to be a democracy...

Jury by peer sounds mighty lofty, except that in this case (and I would argue probably in most cases) it wasn't. The peer of Samsung and Apple isn't some random dude from Arkansas, but instead the likes of LG, Google, Microsoft, etc.

However, I am saying that democracy is defined by participation. Yes, through representation in most cases but also active participation.

You participate by electing your representatives. You're just playing with words here.

Yes, I believe democracy cannot be epitomized by a government which lacks public/peer participation in the judiciary...

And yet much of the world manages to function perfectly happily without them. So again, it's sweet that you believe it, it's just that it is factually not true.

particularly when there are functioning democracies which do have it as an option. Thus it is an assault on democracy, generally.

This comment stinks of American exceptionalism and is quite insulting to the rest of the world. What you're saying, in a sense, is that some other country, by not following the American justice model, is somehow less democratic. Those countries, however, would claim that America's justice system, on the other hand, is geared towards dispensing uncivilized mob justice.

Secondarily, it is also an assault on this country's democracy specifically.

It's merely an assault on your childish notion that democracy is the be-all-end-all in all matters. There are very real examples of democracy getting it badly wrong (e.g. the trial of Socrates).

1b. And, that is additionally, it would cause our, America's, judicial system to not function because juries would never be finalized (again, I was presuming a hybridized jury-expert replacement. If you, like Thom, can't understand why America is founded under a hybridized common law/civil law system and propose that America drops its judicial system for one it rejected,

Can you please point me to some resource that shows that the US rejected a former system of judiciary not based on common law? Because from what I understand, the US inherited the common law system from the former colonies, which in turn had it implemented long before by the British (hint: common law isn't an American invention).

well... that's so foundational and easy for me to understand, I don't even know where to begin explaining why that is and why that will never change... )

I can see you believe "democracy is da best!" as almost some sort of holy truth, but this only conspires to warp your reasoning, like in the Samsung-Apple case, where you're essentially trying to defend a bad judgement (it's a fact that the foreman's standard for dismissing prior art is wrong) in order to save your beloved justice system. A rational person would be looking to fix it.

Umm, the judiciary is certainly a part of the government. Democracy can certainly run through it.

While formally correct, it was not what I was getting at.

There is nothing logical about saying: the judicial should not be democratic.

Perhaps I should have phrased it more accurately: the judicial process shouldn't be democratic. There are also problems with the justices themselves being democratically elected, but that is an argument for another day.

Just as the police, the sewers, park services, other utilities, (maybe) medical services, and even the legislative, or (maybe) executive branches of a government are parts of the government. And these representational units of government can and, in most cases, should be democratic -- in some form or another or when appropriate as an option.

Of the above you cite only the executive and legislative are democratically elected. The rest are not. I sure hope members of the medical services in your country aren't elected by popular vote, but are appointed based on their track record.

Justice is best served, most undoubtedly, when it is most democratic.

And this is exactly the fault of your reasoning, right there. The truth is not subject to democracy. To say so is to say that king Canute's idea of commanding the tide not to come in wasn't totally insane.

It can only be approximated at all, in society, through democratic processes.

What you're essentially saying is that truth can be determined by democratic processes, i.e. popular vote. If that is, why don't we determine scientific progress by popular vote? Here's a hint: because it doesn't really work.

You cannot separate justice as simply "the judiciary", apart from the other branches of government.

I should have clarified I was talking about the judicial process, not the office itself.

The law is never practiced in an philosophically pure state where the legal/moral code is known, unchanging or where the truth can always be ascertained and agreed upon. Maybe you think that of your own country's non-participatory mode of adjudicating the law... Maybe you are American. I don't know. But I personally find civil law systems (most strictly civil law systems still embody democratic processes despite their lack of juries) just as fallible, if not more so, as common law systems.

I never said that every case is always clear-cut. I'm merely calling for a change in the process to more correctly approximate the truth based on what we have learned in the scientific process. Our judicial processes were developed in an age when "witnessing" was equivalent to "evidence", before science defined what cognitive biases are, before we could gather prints, DNA samples, A/V footage etc. Most common law justice systems are still stuck largely in medieval times.

For some reason, this is obvious to me:

Yes, I can see it is obvious to you, but you can't explain it. Democracy isn't the magic bullet you imagine it to be.

and never will be.

Never say never.

I think it's highly flawed and often complete shit, but I still love this system more than any other. Absolutely.

And here you show it clearly. You have an emotional attachment to the way things are, rather than a rational one. It's understandable and natural, but consequently you will not listen to rational argument. It's like trying to reason a believer out of a particular religion - they don't believe it for rational reasons, so rational arguments will not work.

I can't really follow your whole -- the judiciary is not a part of the government, it shouldn't be democratic -- line... Different strokes for different folks.

It really boils down to this: it theory jury systems sound lofty and fantastic. But in practice, it's a bunch of uneducated dimwits who are trying to slice through a complex process and frequently get it badly wrong (or use the wrong reasoning to get to conclusions), as in the Samsung-Apple case.

Again, there was a misunderstanding. If the argument being afforded by the opposition is now: America needs to abandon its common law/civil law hybrid system that affords the option to a jury trial by a panel of your peers and fellow citizens in some cases, then I think we're pretty close to all agreeing that Apple has legally and rightfully sued Samsung in the U.S. for patent, trademark, and trade dress violations.

The problem is that it wasn't a panel of their peers. It sounds lofty when you put it in, but it just wasn't and probably isn't in most cases. In most cases, juries consist of uninformed members of the public which do not grasp concepts such as emotional bias, the Dunning-Kruger effect and how easily people are influenced by authority. Even though a total redesign of the common law processes is nearly impossible, some adjustments could be made to make the process less error-prone.

Reply Parent Score: 4