Monday, October 28, 2013

Does Our Criminal Justice System Find Truth Well And What is the Tolerance for Error? (10/28/13)

Today, I address a larger question than one about federal tax crimes.  The question is whether our traditional criminal justice system for finding truth by triers of fact -- usually juries but sometimes judges -- really do it well and how much confidence can we have that they do it well.  At the outset, we all recognize that no system is perfect.  Our system requires proof of guilt beyond a reasonable doubt -- not proof beyond any doubt, but proof beyond a reasonable doubt.  So, as articulated -- beyond a reasonable doubt -- suggests the possibility that some are wrongly convicted even though a jury could find that they were guilty beyond a reasonable doubt.  But, even the concept of what is proof beyond a reasonable doubt is uncertain, further exacerbating the possibility of a wrongful conviction.  See Reasonable Doubt - What is It? (Federal Tax Crimes Blog 10/16/09), here.

I point readers interested in this topic to a recent article:  Mark Godsey, We Are Naturally Bad Sleuths..and Frequently Fail to Find the Truth (10/25/13), here.  Mr. Godsey offers a good introduction to problems of memory as they play out in our judicial system, referring principally to Elizabeht Loftus's Ted Talks:  The Fiction of Memory (6/13, posted 9/13), here.    Her talk is an outgrowth of the Innocence Movement.  See the web site for the innocent project here.

Readers interested at any level in the criminal justice system should be familiar with the phenomena discussed in these postings.


  1. It has been said (and I think this has merit) that juries are representative of those who are not able to find a way to get themselves excused from jury duty, such as the unemployed and underemployed, and thus are not representative of society at large. In particular, many of these are said to be biased against those who have achieved financial success.

    I do think that the concept of having a jury composed of members who represent society (rather than lawyers and judges) is an excellent concept, just that in practice it's not working very well.

    Also, I have read that jury member s are barred from being instructed regarding the concept of "jury nullification" (i.e. that not only do they determine the facts but are free to acquit if they feel the law is unjust or the punishment for the crime is excessive.

  2. There must be check in balance in federal justice system and also an equal opportunity for justice on every individual regardless of their financial standing.

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