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bryanlarsen

In the American system, there are many biases for guilt that counteract the explicit "beyond a reasonable doubt" bias.

For example:

- prosecution presents first. (Google Anchoring, Confirmation Bias)

- police are allowed to lie to witnesses to extract confessions, along with many other psychological tricks

- prosecutorial immunity

- election of prosecutors based on conviction rate

And that's just the tip of the iceberg.

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Prosecution presents first so that defense can rebut. You want prosecution to go first so that when they are done, defense can dismantle the prosecution's case effectively. If you let defense present first, what are they even going to say? "My client didn't do it. He was at home with his wife, who can corroborate. Uh, I guess the defense rests."

There are lots of problems with our legal system. This isn't one of them.

You're exactly right--if the defense and prosecution each get one chance to present their evidence, it makes the most sense, and is most defendant friendly, for the defense to go second.

But if we're thinking more broadly about how the system could be reformed, we should remember that there are more than two options here. For example, The defense could present first and then have an opportunity for rebuttal after the prosecution presents its case. I'm not sure this would be near the top of my list of proposed criminal justice reforms, though.

Each side does get to show opening remarks before presenting the bulk of evidence. And, each side can cross examine witnesses which create much more of a back and forth than you might think.

IMO, the real bias is expert witnesses get preselected and paid, so they tend to favor a specific side. This has allowed a lot of pseudoscience to be shown a trial and enter the literature. Forensic science is rarely validated because that’s just not its job.

Consider, two people that compare hair samples, but one always supports the prosecutors case. Now, which one do you think gets more work? When someone says something is inconclusive that's it they not going to get paid to show up at the trial just there initial 'investigation'.

> Forensic science is rarely validated because that’s just not its job.

And this is as terrifying as the fact that experts are selected specifically to support the side that pays them. Expert witnesses should probably be selected and paid by the court, which would at least help a bit. But the pseudoscience stuff horrifies me. The whole hair comparison thing is bunk and a lot of people were put in jail on the supposed strength of this "science". Ditto for so many other forensic "sciences".

https://www.washingtonpost.com/local/crime/fbi-overstated-fo...

> I'm not sure this would be near the top of my list of proposed criminal justice reforms, though.

Though, if it has a positive effect, it seems like it would be a cheap and easy reform to make. I think it's pretty reasonable that the defense be the first to speak and the last to speak to the jury in a criminal trial, even if its gets extra timeslots compared to the prosecution.

Yes, it'd be illogical for defense to go first. Regardless, it's a huge advantage for prosecution to go first.

I just don't see how the alternative could even be workable. It's also an advantage to get the last word, so I'm not sure there's a problem here.

Getting the first word does not imply that you don't get the last too.

I never said it did. I'm not sure it's useful for defense to get the first word, though, since the entire point of the defense is to rebut the prosecution.

> prosecution presents first. (Google Anchoring, Confirmation Bias)

How else would you do this? There is a presumption of innocence; the defendant needs to defend against the arguments made by the prosecution.

This has a nice sampling of that iceberg.

http://georgetownlawjournal.org/files/2015/06/Kozinski_Prefa...

Prosecution presents first because they have the burden of proof. They are the ones making a claim. The defense has no claim to make, they are simply responding to a claim by the prosecution, so of course the prosecution must present first.

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