Saturday, August 07, 2004

 

CSI effect and why innocent men should go to jail

Thanks to Geekpress for this link to an article on the "CSI effect" in trials. The basic idea is that television shows like CSI have skewed the perceptions of jurors as to what is reasonable to expect from a real life trial.

The article is interesting, but it got me to thinking about one of the common arguments that I run into with people about criminal trials. I often hear the adage, "it is better for a hundred guilty men to go free, than for one innocent man to go to prison." My response is pretty much the same every time; "Really?" How about a thousand guilty men or a million? No, at some point people will concede that it may be better to wrongfully convict some proportion of people to prevent too many guilty men from going free. So that leads to the question of what the proper proportion of innocent to guilty men should be. Of course, trying to tell what is actually happening is rather difficult since if we knew for a fact that the person in jail were innocent, then presumably they wouldn't be in jail. (Note that is not the same thing as assuming that just because they are in jail that they are guilty.) But if we could know the figure, what would we want it to be? Part of it depends on the type of crime and the danger of the person comitting the crime again. If the person being accused was in a unique scenerio that is unlikely to repeat, then we should expect the degree of evidence required to increase. After all, even if he is guilty and is set free, it is unlikely that the crime would occur again anyway. But what if it is a crime that for whatever reason we expect that if the person is guilty then they are more likely to repeat the crime. Let's say armed robbery is the crime. Well now, the standards start to go down a little bit since the danger of letting a guilty man go free increases. Now I can imagine some people are probably already outraged by my attempt to change the burden of proof depending on the type of crime, but I will be willing to bet that most of those same people do it already. I am thinking specifically of rape. I can not tell you how many women I have met that are outraged by defense attempts to show that a woman was promiscuous in order to show that she probably consented to the sexual activity. They claim that women wouldn't lie about that sort of thing, even though we know that some number of women do lie about having been raped. We know this because there have been prominant cases where (I'm thinking of one particular one involving Mr. Sharpton) it has come to light that the story was fabricated. Is it likely? No. Depending on which statistics you go by, the percentage of false reports range from 2 - 8%. 2% would put the number of false charges in line with the percent of false charges for all other major crimes. There is a very real danger, however, of letting a guilty person go free, because rape is a crime where if he is guilty he is more likely to repeat the crime if set free. (I am not advocating that we assume the man is guilty however, which seems increasingly to be the position of many of my "feminist" friends.) I am merely suggesting that to some extent it is logical that we should not demand as much proof just to avoid ruining an innocent man's life in such situations. The very real effect of letting some number of guilty men go free to avoid that innocent man going to jail is that even more innocent people will be raped, murdered, have their property stolen, etc.

We must be vigilant against government corruption and if the police frame someone and are caught, the punishments should be as extreme as any the society hands out, but if honest mistakes are made, why should we be particularly outraged? In the end, there may be no ideal ratio, but we have to get it out of our heads that there needs to be some "absolute" proof of a persons guilt before they go to jail. The law has recognized this for some time. The standard is not, as is often stated, beyond any doubt. The standard is beyond a reasonable doubt. There are crimes that have incredibly high standards innumerated in the law. The constitution, for example, states that you need two witnesses to the same act of treason in order to convict someone of treason. How impossible would that be to prove today? They could have made this the standard for all crimes...two witnesses to the same crime is the standard to convict. What kind of society would we have today if that was the standard though?

Just my rant for the day...Night

Comments:
"If the person being accused was in a unique scenerio that is unlikely to repeat, then we should expect the degree of evidence required to increase. After all, even if he is guilty and is set free, it is unlikely that the crime would occur again anyway. But what if it is a crime that for whatever reason we expect that if the person is guilty then they are more likely to repeat the crime. Let's say armed robbery is the crime. Well now, the standards start to go down a little bit since the danger of letting a guilty man go free increases."

It's kind of funny, I see the reverse as true. The standard of evidence is not so much as an impediment to protecting society, but a necessary part of it. If the crime is likely to repeat, I want a high standard of evidence to make sure we get the right guy. If you let the standard of evidence too low you might miss the actual serial murder (or whatever) and then the police stop investigating and the real criminal would get off. Not good for society.

Just a different perspective.

Jay
 
It is obviously hard to say to what extent a high evidence requirement allows guilty men to go free vs preventing an innocent man from going to jail, but if the police actually believe that the person arrested was guilty, then the higher standard of evidence is unlikely to cause them to look for someone else, but rather to feel that the criminal got off because he outmanuevered the prosecution. If the person were sent to prison erroneously and the correct criminal commits another crime then the police cannot include the person in jail for the potential suspects in the new crime, whereas if the person is set free the police will be more likely to waste resources on tracking an innocent man to confirm what they already believed about his guilt. I do see the point about some criminal running around because an innocent man is in jail, but I'm not sure that setting the innocent man free helps to deal with the outstanding criminal, whereas if the person is guilty, conviction clearly prevents further crimes.

I want to point out again, lest someone take my comment out of context, that I am not advocating we just randomly throw innocent people in jail...only that we take a rational look at whether or not there should be a sliding scale in terms of burden of proof. As in the main post, I have to point out that we already have a sliding scale, to some extent, but that it is possible that the scale should have more tipping points than it currently does.

Just a thought.
 
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