In the Age of Harvey there is a lot more demand for the criminal justice system to sort out what happened between two adults in private settings such as hotel rooms and dorm rooms. The smartphone age has given the same system a lot more material to chew on. Here’s a Daily Mail story about the state’s case against a defendant falling apart in the middle of the trial due to the fact that the police failed to highlight the contents of text messages between an accuser and the accused. (Separately, note that the defendant needed to spend two years paying lawyers and preparing for potential imprisonment; imagine the sangfroid it must have taken for him to reject a plea deal!)
Readers: What do you think? The criminal justice system was set up to handle black-and-white situations where A hit B or C stole something from D and none of the evidence was in electronic form. Does the case described in the Daily Mail suggest that the system isn’t likely to fit well with shades of grey (so to speak) and evidence that is primarily electronic?
There’s really nothing new or unusual about prosecutors hiding evidence that casts doubt on their case or outright exonerates the defendant. Spend any time talking to a defense attorney and you’ll find out that it quite common, and always has been. Technology hasn’t really changed anything here.
That story in the Daily Mail is just insane. No mention if the accuser will be put on trial for wasting the resources of the justice system.
Also reminds me the interesting (surprising?) findings in the “Everybody Lies: Big Data, New Data, and What the Internet Can Tell Us About Who We Really Are” by Stephens-Davidowitz.
https://www.vice.com/en_nz/article/bm9w7v/why-are-so-many-women-searching-for-ultra-violent-porn
“If there is a genre of porn in which violence is perpetrated against a woman, my analysis of the data shows that it almost always appeals disproportionately to women,” he writes.
“Researchers found that 52 percent of the women had fantasies about forced sex with a man, 32 percent about being raped and 28 percent about forced oral sex with a man. Overall, 62 percent of the women reported having had at least one fantasy around a forced sex act.”
In the U.S., the Supreme Court has held that the prosecution is obligated to share exculpatory evidence with the defense (https://en.wikipedia.org/wiki/Brady_disclosure). I’m not surprised that prosecutors avoid doing it when they think that they can get away with it, but that’s not a symptom of anything having to do with technology — it’s a symptom that prosecutors may have political ambitions and may be more interested in winning cases than in seeing justice served.
I also don’t think that this has to do with shades of gray — the whole reason that judges exist is to add human logic to a system where the rules don’t always apply cleanly. The GOP routinely tries to break the system by branding judges as “activists” and trying to place mandatory, rule-based sentences on things. That’s simply not how it’s supposed to work.
“the whole reason that judges exist is to add human logic to a system where the rules don’t always apply cleanly. The GOP routinely tries to break the system by branding judges as “activists” and trying to place mandatory, rule-based sentences on things. That’s simply not how it’s supposed to work.”
Note that judges are employed for the procedural aspect as well as sentencing. If two judges would sentence the same offender very differently, it seems quite relevant that mandatory guidance is provided.
Indeed, American judges seem to be given bizarre jurisdiction and latitude for their pronouncements, which then only after months are reversed by their more responsible superiors. There seems to be an unfortunate element of theatre to the so-called justice system.
Good point about A and B but not relevant here because rape is a common law crime and has been a crime for many centuries as has been the problem that it typically happens behind closed doors and can easily be fabricated (or denied). The electronic angle does not seem relevant to this underlying point. Having been both a criminal prosecutor and defense lawyer, my experience is that paranoia about prosecutors withholding evidence is mostly fantasy as is the prejudice that lots of innocent people are railroaded through the criminal justice system. Makes for good TV and movies but not in accord with reality and if one understood how the system really worked and the various actors and incentives would see that that point of view is far fetched. The system has glitches as one would expect of a large bureaucracy administered by fallible human beings but on average probably works pretty well.
> Note that judges are employed for the procedural aspect as well as sentencing. If two judges would sentence the same offender very differently, it seems quite relevant that mandatory guidance is provided.
> Indeed, American judges seem to be given bizarre jurisdiction and latitude for their pronouncements, which then only after months are reversed by their more responsible superiors. There seems to be an unfortunate element of theatre to the so-called justice system.
Consistency in sentencing a noble goal — it shouldn’t be a crapshoot based on who the judge is. However, removing the judge’s discretion entirely means that special circumstances won’t be addressed and some people will receive unjust sentences. If mistakes are reversed by “more responsible superiors,” then the system works as-is, no?
Clearly, it’s inefficient if a majority (or even a significant minority) of decisions are being overturned on appeal, but is that true? Does that apply to sentences?
“rape is a common law crime and has been a crime for many centuries as has been the problem that it typically happens behind closed doors”
There were women who went to the hotel rooms of married men centuries ago. They were called “whores”. There were also women who invited men into their houses for 1-on-1 time. They were called “whores”. The only legal question that could be raised was whether the whore got paid.
If I were single and on the dating scene, I would record a 10 second video with my cell phone (which is time stamped) of my soon-to-be-intimate partner stating that she wanted to have sexual relations with me. Might be a mood killer but it would be powerful in any future court proceedings.