How can one utilize an &quot;objective observer&quot;, if one cannot be such? How can one utilize an &quot;objective observer&quot;, if one cannot be such? When this &quot;objective observer&quot; is utilized. E.g. X is unlawful, if an objective observer would interpret it as such. like in For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State. source: https://www.courts.wa.gov/court_rules/?fa=court_rules.display&amp;group=ga&amp;ruleid=gagr37 The particular problematics related to this are discussed in e.g.: https://www.californialawreview.org/print/what-to-do-about-batson/ Or https://apnews.com/article/race-and-ethnicity-trials-juries-death-of-george-floyd-racial-injustice-495e7b36e5c1eee6eb2ff4ee35a21987 where in particular they say: While the goal objectively is to seat an unbiased jury, both sides try to remove people who may view their case unfavorably. Thus questioning the practical feasibility of an objective observer. While the concept is intuitive as &quot;refers to physically appearing&quot;, the idea of an objective observer thus seems faulty to me. I would perhaps call it &quot;non- subject dependent circumstances&quot;. But then the question could in some cases, does such exist? A challenge should be e.g. the difficulty/impossibility of displaying that someone is biased, because there's no objective instrument for it. And if it's a human judging it, then it cannot be unbiased. For example, the particular wording in relation to discrimination in the Batson example there seems like it suggests that &quot;an objective observer would treat people equally&quot; or that &quot;it is unfair (to treat people unequally)&quot;, which are biases themselves. Thus possibly lending to the idea that &quot;objective observer&quot; may be utilized for &quot;our bias, which we claim objective&quot;. Related: Machine-learning jury
The objective observer is not a real person She is one of a number of imaginary people who are used in law to inform judges and jurors how they should intellectually engage with a legal issue. We may not know or be a reasonable person or an objective observer but we know the characteristics they would have if they existed. The legal usage is not to prove a person is or isn’t an objective observer, it’s to establish the standard they would apply if they were. It’s worth quoting Lord Reed from Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49 at 1-[4]: The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias... It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would be misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard. In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer. The particular objective observer required in Washington jury selection has these characteristics: … an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State. It doesn’t matter that you or I may not hold that view, the hypothetical objective observer does an therefore: If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. So, when the judge considers the challenge they have to view it in the light “that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors” whether they believe that or not. If a person who held that view “could” view the challenge as factoring in race or ethnicity then it must be denied. This long-standing legal tradition is founded in human psychology: we’re actually really good at imagining what other people will do if we make the effort. The hypothetical person is an idealised individual who doesn’t have to worry about money, or children or what the neighbours think. By making an effort to think like they would diverse real humans can actually produce amazingly consistent responses.
Carl may not do this, as he would be prohibited from making this argument at trial. At trial, evidence must be relevant, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under Rule 403, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury. If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury. In some jurisdictions, Carl may, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted.
An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction.
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.
The standard of proof is "on the balance of probabilities", or, "preponderance of evidence", meaning that your claim must be more probable than the other guy's claim. Rules of evidence may preclude using certain kinds of evidence such as rule 403 The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence A supernatural alternative can, in fact, defeat all forms of evidence, including forensics and "I saw it directly" testimony. The courts do not exclude evidence (all evidence) on the grounds that you can imagine a sci-fi scenario where "it didn't really happen". The rules of evidence more or less encode the cases where evidence is generally found to not be reliable.
While it is true that jury instructions are typically less than optimal, it is ideological hyperbole or cynicism to claim that instructions are purposely confusing. The ultimate source of the confusion is that the legal system has to assume (pretend) that it has clear-cut rules that any reasonable person can easily understand and automatically apply. In order to maintain uniformity of the law, there is an externally-defined instruction that a judge may read (rather than giving his personal spin on what "reasonable doubt" means or what the relationship is between "reasonable doubt" and convicting a defendant). Once the relevant body of government (committee of judges and lawyers) has established the apparently correct formula for expressing the applicable legal concept, they don't mess with it, until SCOTUS overturns decisions enough times based on crappy instructions. Legal professionals are trained to carefully scrutinze language so as to achieve a single interpretation of a given clause (never mind the fact that there turn out to be many such interpretations). Since they can apply these interpretive rules, it is assumed that anyone can apply them. But in fact, we know that people don't just use literal semantic principles to reach conclusions – but the law resist pandering to that imperfection in human behavior. There is a huge literature on problems of jury instructions, some of the better of which relies on psycholinguistic experimentation to establish that a given instruction is confusing or gives the wrong result. See for example Solan's "Refocusing the burden of proof.." (and references therein) that addresses the problem of the "beyond a reasonable doubt" instruction, which has the unintended consequence of implying that the defense has an obligation to create a doubt (which is not the case, and allows conviction if there is the weakest imaginable evidence which hasn't been refuted). But who gets to decide what the improved instructions should say? The instructions have to correctly state what the law holds (where "the law" means not just statutes, but the trillions of relevant court decisions and applicable regulations). Thus there is massive inertia, and improved jury instructions will not come about quickly.
Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare
Without being omniscient, it is impossible to pin down an exact percentage, and there are a lot of context specific reasons why some kinds of &quot;easy&quot; cases are more likely to go to trial than others. But, there have been quite a few serious efforts to answer this question with data (putting aside the normative issue of whether you should go to trial when you are likely to lose). One of the best statistical estimates comes from an analysis of criminal jury trials in Sarasota, Florida and the race of the jurors on the jury pool. Based upon that study, it is possible to infer statistically that an average juror of either race would reach the same aquittal or conviction decision in about 55% of cases involving black defendants and about 68% of cases involving white defendants. But, there are many other cases that are close enough on the merits given the likely available that the outcome depends upon the race of the jury, which basically means that the evidence can be reasonably viewed in different lights to reach different conclusions based upon your predispositions before seeing it. For the sample as a whole, about 68% of cases where convictions results and a minimum of 14% of cases that produce acquittals, are sufficiently clear than the racial composition of the jury doesn't matter. Given that something like 90% of cases produce plea bargains generally, and that plea bargains are usually made before a jury pool is drawn, the random impact of the racial makeup of the jury pool that is selected for a case in Sarasota, Florida only directly matters in about 2% of all criminal prosecutions. My criminal procedure professor from law school made one of the most comprehensive surveys of data pertinent to estimating wrongful conviction rate ever prepared. He concludes that wrongful conviction rates for murders and rapes are on the order of 2.3%-5%, and that wrongful conviction rates for other serious felonies are probably somewhat lower (since weak cases are less often pursued) but that it is harder to determine precisely what error rate is involved since the legal process and civic activism rarely takes the time and resources necessary to consider wrongful juvenile convictions or wrongful convictions for less serious crimes. Other sources have suggested that wrongful conviction cases, and studies comparing jury outcomes with conclusions of the presiding judges in the cases regarding where the jury does and does not agree with the judge regarding the correct outcome generally speaking point to a similar level of uncertainty in decision making accuracy. suggest that as many as 10-20% of jury determinations are erroneous, although this is to some extent a product of samples biased for cases with a high risk of wrongful convictions. For example, analysis of a special set of state court cases in 2000-01 from four jurisdictions in a study by the National Center for State Courts (Hannaford-Agor et al 2003) suggested that approximately 17% of jury verdicts were inaccurate, 7% of the all jury verdicts were wrongful convictions and 10% of all jury verdicts were wrongful acquittals, with corresponding rates of 10% wrongful convictions and 1% wrongful acquittals for the judges' verdicts (Spencer 2007). Similarly, an abstract of one study stated that: &quot;I examine . . . how the criminal system in the United States handled the cases of people who were subsequently found innocent through post-conviction DNA testing. . . . The leading types of evidence supporting their wrongful convictions were erroneous eyewitness identifications, faulty forensic evidence, informant testimony, and false confessions. . . . . few innocent appellants brought claims regarding those facts, nor did many bring claims alleging their innocence. For those who did, hardly any claims were granted by appellate courts. . . . courts often denied relief by finding error to be harmless on account of the appellant's guilt. Criminal appeals brought before they proved their innocence using DNA yielded apparently high numbers of reversals—a fourteen percent reversal rate. However, . . . the reversal rate is indistinguishable from the background rate in appeals of comparable rape and murder convictions[.]&quot; Another way to judge the ratio of easy to hard cases is to look at conviction or verdict rates in cases that go to trial. While the vast majority of criminal charges brought result in conviction of something and the vast majority of civil cases brought result in a judgment for the Plaintiff, in an hypothetical ideal world where the lawyers and parties on both sides of cases are rational actors with the best available information and there is no bias in the availability of information, you would expect pre-trial settlements to resolve, on average, all of the cases with an objective lean one way or the other, leaving only the cases that are, on average, coin flips left to go to trial, with 50-50 outcomes, regardless of the mix of cases originally filed. And, that model isn't horrible. Less than 2% of civil cases and less than 10% of criminal cases go to trial. Civil case outcomes vary by type of case, but the overall result in those the go to trial is close to 50-50. But, in criminal cases, convictions greatly outnumber acquittals, because &quot;easy cases&quot; where a conviction is likely often still go to trial, because neither side is paying for their lawyers from their own funds in most cases, because there is little incentive to offer favorable settlements in close cases, and because, as discussed below, there is a significant irreducible risk of an inaccurate outcome. In federal criminal cases that actually go to trial, the Pew Research Center’s data shows that defendants who pursue a trial experience different outcomes based on whether they choose a bench or jury trial. The acquittal rate in bench trials is 38% (a very small and unrepresentative sample), whereas it’s 14% for juried trials (the vast majority of cases). This would suggest that about 72% of federal jury trials are &quot;easy&quot; cases, while about 28% are &quot;hard&quot; cases, in line with the Sarasota study in order of magnitude. Note that this is different from &quot;conviction rates&quot; which compare the percentage of cases charged that produce guilty verdicts or plea bargains, rather than conviction rates in the subset of cases that go to trial. The percentage of people charged with some federal crime who end up being convicted of something is very, very high, compared to state court, but that is almost entirely due to the ability of federal prosecutors to cherry pick strong cases with high mandatory minimum penalties and to secure plea bargains as a result, rather than from different rates of criminal jury trial outcomes. Still, in &quot;2018, the Bureau of Justice Statistics reported that among defendants charged with a felony, 68% were convicted (59% of a felony and the remainder of a misdemeanor)&quot; and the conviction rate at trial is lower than the conviction rate of all people charged criminally with felonies, since plea bargains are more common than unilateral government dismissals of all charges. But, in almost every court system, more than 50% of criminal trials result in convictions. So, the percentage of &quot;easy&quot; criminal cases going to trial in state courts is still significantly lower than in federal courts. Maybe the percentage of state criminal cases going to trial that are &quot;easy cases&quot; in the range of 5%-20% in this kind of analysis (which is quite a bit lower than the more rigorously designed Sarasota study). The challenging thing, of course, is knowing in advance which cases judges or juries will get wrong. I typically conceptualize the issue as a certain irreducible uncertainty of outcome any time you actually roll the dice on going to trial on the order of 10%-20% whether you are in front of a judge or a jury, and an additional uncertainty in cases where there is some specific reason to think that the outcome is a close call, or that special risk factors for inaccurate verdicts (like heavy reliance on cross-racial eye witness identification of suspects) is present. From the perspective a client, even in a seemingly secure case, this impacts how plea bargains and settlement offers are evaluated. If your client is actually in the wrong and facing very severe punishment and there are no offers to settle that don't also involve very severe punishment, going to trial and hoping to benefit from the irreducible inaccuracy of trial determinations can be rational even in a quite weak case. Likewise, in either a civil or a criminal case, if getting some win is much more important for the person bringing the case, than getting a &quot;home run&quot; maximal win, making a lenient deal even in a fairly solid case can make sense to avoid the risk of rolling the dice and the irreducible risk of error any time there is a trial. Also, of course, lots and lots of parties to both criminal and civil cases are not rational actors and make bad decisions. These characteristics of parties to legal cases frequently play a large part in the fact that these parties ended up having to deal with the legal system in the first place. One of the difficult systemic and institutional issues, however, is that the behavior of people who are irrational because they are dumb or crazy, and the behavior of people in the system who are innocent and have excessive but not necessarily unreasonable trust in the accuracy of the judicial process, can look very similar. People who are factually innocent systemically insist on going to trial even in the face of lenient plea bargains at rates much higher than people who are factually guilty, even in cases that seem to have identical strength before a neutral third-party, and are, as a result, over represented in the ranks of people who actually go to trial.