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Comment by Lord-Jobo | Hacker News Reader

Good. These kinds of measures are necessary for the restoration of the balance of power in the justice system between prosecution and defense. it should (at the very minimum) be 50-50 every time, then hinge on the facts/evidence to push either over the edge. thats the only way an adversarial system works. But we are very very very far from that at the moment, with a 98% plea bargain rate (https://www.npr.org/2023/02/22/1158356619/plea-bargains-crim...). This bypasses nearly every single baked in advantage that the defense has, with most existing at the trial stages. Lots of ways to balance those scales, this is a good measure in my opinion.

What we have at the moment its a system backsliding towards something that looks similar to post-soviet law like the current Russian system. Its not a good look, even if we probably still have a legal system in the top 10 least fucked.

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The 98% plea bargain rate isn't quite as bad as it seems, though; prosecutors drop marginal (i.e. your 50/50) cases entirely so they can brag about their high conviction rates when it comes time for reelection.

Do they drop them or pile on charges in the hopes of a lesser plea?

The latter.

I can think of a very small handful of cases where the prosecution drop marginal cases. I've seen cases where there is zero evidence be taken all the way to the day of trial in order to try and get a plea. I see a great number of cases dropped on day of trial when the defendant won't plead out.

Source: 11 years experience in the criminal justice system.

Incredibly localized and subject to personal biases/ambitions for the prosecution. So sometimes you will see a huge majority of cases under certain categories dropped to boost their numbers (or because it makes sense, like the generally unlawful arrests during the George Floyd protests) and sometimes you will see an insane stacking of cases that will never win in order to boost other numbers and project a 'tough on crime' persona. See: Horrible Dickhead-Sheriff Joe Arpaio (sheriffs in many places have large overlap with prosecutors' duties)

Except that a lot of that statistic is driven by the fact that you will be hit with much harder sentencing if you choose to defend yourself in court rather than immediately agreeing to a plea deal and having the level lowered (for federal cases.) This is known as the "trial penalty."

> defense. it should (at the very minimum) be 50-50 every time

What’s the probability of any given indicted person actually being guilty? It’s way over 50%.

What is this assertion based on?

There is very little to suggest that the prosecutors are so massively incompetent as to only have a 50% hit rate.

Exactly. There is nothing in the records that prosecutors keep and make available to the public to indicate that. It is trivial to verify this by looking through the meticulous and publicly searchable database of dropped charges and arrest voidings.

I can answer this with some authority. I just did 10 years in pretrial and looked through the cases of thousands of people in detail.

I would say 95% of people who are indicted are guilty of something related to the indictment. Often not exactly what is in the indictment (overcharging is rife), but guilty of something. What we need to do is charge people more accurately. Overcharging is used to elicit guilty pleas on lesser charges.

Being guilty of "Something" in the indictment is also a far cry from being guilty of the indictment. For instance, the difference between possession and distribution.

This is one of the biggest ones. If you are caught with more than a certain amount (say 20 teeny tiny bags of crack) you are assumed to be distributing it even without any evidence of distribution. They say you would not have that much for personal use.

I was on a jury last month for a case with this exact scenario. Dude had a lot of weed and the prosecution tried to use the quantity as the sole proof that he was distributing. Searched his phone, nothing, asked the neighbors about suspicious comings and goings, nothing, et cetera. Then they had some detective expert witness come in and say that in his opinion, the guy was absolutely a dealer based on that alone.

The jury decided pretty much immediately that the prosecution hadn't proved shit. But a different jury... who knows?

This guy was a brave soul taking it to trial. Normally the jury believes expert cop witnesses. This is how they get the plea deals :(

I know people who bulk buy large quantities of weed because they have to travel out of state to get it and they want to minimize the risks of being caught with it all in transit.

In many jurisdictions this is explicitly written into law - a threshold past which assumption of distribution is automatic.

I like this reasoning. Everyone should be born in jail and then work to get out, not the other way around.

You should read up on Catholicism and the idea of original sin; I think it'll integrate well with your outlook.

Most people never get indicted for a crime. Maybe the system should seek out the truth of what guilt can actually be proved instead of just trying to lower the conviction rate to 50% arbitrarily.

Currently, the prosecution wins the majority of cases because they can get a plea bargain regardless of guilt. I agree with you that this is wrong.

But, to me, the prosecution shouldn't take on cases where they don't have good evidence and they should drop cases if it becomes clear they are wrong. If prosecutors did this they'd still have a very high win rate.

What makes you think this isn’t happening?

Well I'm sure it depends on the prosecutor. But there are certainly cases where it's not happening, as evidenced by the topic of this thread.

Our insane incarceration rate and the number of innocent people imprisoned?

If the indicted individuals are guilty, prosecutors should use the evidence they have of that guilt to convict.

Why should we stack the deck in favor of prosecutors and police, by giving them extra privileges, like being able to intentionally lie to defendants?

>thats the only way an adversarial system works

Really, it shouldn't be an adversarial system against the law-abiding citizenry.

The concept IIUC is both sides have zealous advocacy - both sides leave no stone unturned, no argument unmade (generally speaking) - and through the court procedure, that's how a fair trial and the truth come out.

How else do you propose doing it? A system - in sometimes highly distrusting, dangerous, and angry situations - that relies on good will seems unlikely to work. Advocacy accepts the adversarial nature of the issue.

Countries do have different systems. France relies more on judges somehow, but I don't know if the accused gets an advocate.

>The concept IIUC is both sides have zealous advocacy - both sides leave no stone unturned, no argument unmade (generally speaking) - and through the court procedure, that's how a fair trial and the truth come out.

It seems to me we land a long way from this idea. In reality what happens, especially for poor people, is the prosecution has, in relation to the defense, a virtually unlimited budget and leaves no stone unturned. The defense is often a public defender without the time or resources to turn many stones at all and is viewed by our population as sleazy because they simply try to do their jobs.

That is precisely the point that you are replying to.

How else do you propose doing it?

Right to counsel is pretty universal. The main difference between adversarial (US) and inquisitorial systems is that in the latter, the judge is not limited to evidence that either side introduces, but can initiate their own investigation to the extent necessary to determine the truth. This makes it much harder for prosecution to pull tricks such as concealing relevant evidence or cherry-picking experts. It also means that even if the defendant doesn't have a good lawyer, the judge can effectively compensate for that.

Except that at the point where there is a police interrogation, there is (or should be) probable cause to believe that the person in question is not a law-abiding citizen.

While imperfect, adversarial systems are still our best means of establishing the truth. Whether it is Quality Assurance testing in the context of engineering, reproducibility in the context of scientific experiments, or trial courts in the context of law.

Oh...I think you hit the nail on the head as square as can be. We are in a Soviet law system now. I have proof of it which I will make public in the near future.

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