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Final Class Feedback [12-01-20]

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Of what is this 'evidence'?

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Roman Catholic Diocese v. Cuomo

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Feedback [11-30-20]

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Thanksgiving Thread

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Peremptory Challenges [11-23-2020]

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Feedback [11-17-20]

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Your questions, doubts and concerns about confrontation and cross as core jury process.

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Feedback November 10

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Feedback [11-09-20]

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Discussion Group 2 [11-9-2020]

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Discussion Group 1 [11-9-2020]

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Election Night

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George Fisher Caves [11-03-2020]

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Group 1 [11-03-2020]

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Feedback 10-27-2020

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Discussion 10-27-2020

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Hypothetical 10-19-20

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Surveillance 10-19-20

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Feedback October 13, 2020

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i&i

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REVIEW - October 13, 2020. Please offer questions and concerns.

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Feedback Oct 6, 2020 - violence of discussion for some

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Feedback October 6, 2020

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Feedback Oct 5, 2020 Fair

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Gatecrasher - Who Wins?

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Blue Bus

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Conjunction --In what order should we decide the elements of the alleged crime?

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Prison Yard - Can WE prosecute all of them?

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Feedback [09-29-20]

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Would you be interested in joining together in threads while watching the Trump-Biden debate?

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feedback sept 28

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What is your biggest fear going forward?

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BIAS (in judgmen)t

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Feedback #1

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racism - anti-racism

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what is your passion?

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What do you feel you have to learn about fair trial? Do you feel that fair trial matters?

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OP: Do peremptory strikes ever make the jury more impartial/fair? If so, how do they do so? 
Beyond their historical significance, what purpose do peremptory challenges serve? How should we weigh this purpose in comparison to the critiques? 
What are some solutions to the problems discussed by Marshall in his Batson concurrence? Should we eliminate peremptory strikes for the prosecution? Should we eliminate them altogether?
OP: Where do you fall in the debate: should we eliminate peremptory challenges all together, just for the prosecution, or leave the system as it is now?
Chulak: What does fair and impartial mean?
Sateda: I'm not sure if equating impartial and fair are the same thing?
Rigil Kentaurus: I came into class today thinking that peremptory challenges should be eliminated, but I was persuaded by the arguments that they should be retained for the defense.
Saturn: peremptory strikes can make the jury more fair when defendants use them
Neptune: ^^same for me Rigil. Keep for defense
DQar: I found the mentioned Canada case very persuasive as to why PC should be eliminated for both sides
Sullust: I think we should eliminate preemptory challenges for the prosecution. They should have to explain why they want to exclude jurors
Blackeye: Peremptory strikes are just unworkable for the prosecution--I can't think of a possible way to implement a prosecutorial peremptory strike without reproducing the same racially skewed jury system we have today. They have to go, at least for the prosecution. I see less of a problem on the defense side
Takodana: "It is better that ten guilty persons escape than that one innocent suffer." The jury pool is already biased. Keep peremptory strikes for the defense ONLY.
Chulak: Aren't preemptory strikes an implicit acknowledgment that juries can never be truly impartial?
Ariel: I believe that peremptory challenges should be kept by defendants - I also think this discussion made me think more deeply on the semantics of "fair" and "impartial" and how the word "impartial" carries with it so many different interpretations (which is the issue)
Mirt: I believe that we should keep peremptory challenges for the defense but eliminate for prosecution
Luyten 726-8B: I kind of think everyone should get them. There are flukes that will slip through the jury selection processes. I think everyone should get some ability to remove those flukes. The defendant because they don't want to be unfairly convicted, and the prosecution because the public should be confident that no flukes are keeping criminals on the streets
Mars: i think the concept of preserving the adversarial system is only really applicable in civil trials at least in my head. In a criminal trial the prosecutor should be interested in justice over capable lawyering
DQar: But what determines when a person should be eliminated or would otherwise be a fluke?
DQar: If not overt biases, unconscious biases certainly influence that
Tigg: The way I think about the peremptory jury selection process is that if we can pick a diverse jury representing the community then peremptory challenges make the most sense. You begin with a representitive pool of 2000 people, then strike for cause any that are necessary. After that you have a pool consisting of the remainder, all of whom should be able to serve properly. From that group it should be that the prosecution who represents the states interest in justice and the defense can randomly strike off jurors as a process of minimizing the jury to 12 people. This will land at a jury that each side is fairly comfortable coming to justice in front of.
Geonosis: Although I am leaning toward leaving peremptory challenges as is, one question I have is how can we trust someone's word that a strike was not used to exclude on the basis of race/how can we enforce Batson?
Sateda: I almost think about this in terms of the voting rights requirements placed on the most blatantly discriminatory states--where they had to remain under additional scrutiny before making changes--it acknowledged that there are some instances in which this country's systems are starting from a different place when it comes to systemic discrimination based on race. People are racist throughout the US, but I thought it was interesting. I almost feel that judges in different jurisdictions could be parsed out the same way and some should be monitored more closely than others if we keep peremptory challenges.
Sunflower: I think it is infrequent for anyone to change their mind as a result of class discussions. Today for me, was an exception to that rule. Although I am not 100% sure I have changed my mind, I am very much on the edge. I was exposed to facts and perspectives that I was unaware of and that are convincing. I will have to think more about what I believe taking that new information into consideration. Thank you for a thought provoking class.
Sirius A: There is a structural reason why the prosecution shouldn't get them, in my opinion, one raised in my breakout room - when the jury is a sovereign check on the exercise of state power, why give the state such an indiscriminate ability to control the makeup of that body? It then can't function as well as a check on the state.
Ariel: I also think that with peremptory challenges as it exists should also include questioning/challenging the presumption that the prosecutor is always using this State power "to obtain a fair and impartial jury" - that presumption is why the prosecution has historically been able to uphold forms of racial discrimination; automatically equating prosector's role with using the State's power in a way that automatically gets some credibility of fairness when that is far beyond the reality
Chulak: Lawyers on either side aren't looking for "flukes" they're looking for jurors who would be sympathetic to one side or the other. Perhaps a fair and impartial jury that
Mars: however i will say that the case Nicholas mentioned is concerning and i’d like to hear arguments for how we could protect against something like that happening often
Celestis: There's no way that peremptory challenges should be allowed for prosecutors. What are they to say: "Nothing definitive came up to meet the for cause standard in voir dire, but I have a hunch that this juror might think the defendant is innocent!" There's much less clarity on if the defense should get less challenges and should get an 'additional filter' so to speak, but I think it would be less impactful anyway where unanimity is required for conviction.
Hoags Object: eliminate it all together. How do they guarantee a more impartial jury? Both sides are inherently partial. Suggesting that two partial attorneys somehow create a more impartial jury is nonsense. Two negatives don't create a positive here. Peremptory strikes are mislabeled and mis-defined. What they actually are, or how they are actually used, is far from "striking without stated cause..." - I'd go as fair as saying that they are used to strike qualified jurors for improper cause (more often than not).
Milky Way: I think wherever we come out on peremptory challenges, the rule should be applied equally to both sides. I understand that defendants have a lot riding on trial. But so too does the State. Victims are people too.
Tigg: Isn't the prosecution, if they think someone is guilty, supposed to try to bring the best case against the defense. They are representing the public who want justice or the ability to live safely and freely in their community.
Saturn: how can a prosecutor be interested in "justice" over capable lawyering if we all have different interpretations of what 'justice' is? what do you mean by 'justice?' im confused by your point
Takodana: @Hoags Not if the pool itself is biased -- you are assuming a level playing field to begin with that does not exist in practice.
Abydos: Vartburg brings up a good point. Find me a lawyer that wants a "fair" jury. Everybody wants a jury favorable to their side. The only way strikes gets you to "fair" Is if the adversarial system makes it such that the group whittled down by both sides are the people both sides have the least problem with. Basically, the 12 people you're left with are those both sides agree are the least bad for them. If only one side gets peremptory challenges, that's gone.
Sateda: I am very pro-defendant...to a fault. But I have been trying to challenge myself to reframe and maybe humanize pro-prosecution rationales when dealing with this topic. If it's a rape case (I still tend to worry a lot about defendants in these cases, for various reasons), for example, wouldn't we want the prosecution to be able to screen for jurors who are particularly biased in terms of not believing survivors, for example?
Mars: @celestis if we assume that prosecutors are really interested in justice we need to be concerned about that canadian case and things of that nature happening more often. however that’s really only IF we assume prosecutors are interested in justice and not just making their W/L look better
Dakara: peremptory strikes should be kept for defense only. if the prosecutor "has a hunch a juror may think the defendant is innocence" then they should still not get to strike them. all defendants should start with a presumption of innocence
Sullust: Tbh I don't think its possible to have an impartial jury. Everyone comes in with baggage. Most people implicitly trust police more than lay witnesses or think that a defendant wouldn't be in court if they weren't guilty. On the other side, sometimes jurors literally decide guilt or innocence based on appearance. I only care about whether the trial is "fair" as possible for defendant
Saturn: Geonosis-- i share your same concern re Batson? It seems almost impossible to enforce without establishing/tracking/producing a large record of data from that prosecutor's cases
Hoags Object: perhaps I am - but the defense alone should not have the right/power to "level" that playing field.
Andromeda: One small concern I have about a system in which only the defense can exercise peremptory challenges is how that would affect the defense's relationship with the jury--is there any risk that remaining jurors would somehow react negatively to the use of the challenges?
DQar: I agree with Bremervoord's point- Is the argument against that just that the odds are already stacked against the defendant? What about cases where that isn't true and obtaining a conviction is harder for various societal reasons such as racism or sexism against the victim?
Geonosis: If we eliminate it altogether, how do we ensure that a juror hasn't made up their mind before the trial even starts? Do we expand for cause strikes? If so, does having to state that arbitrary cause pose significant concerns? What if the judge disagrees?
Mars: yeah i think my opinion has changed too but in the opposite direction - i came into the class thinking keep them only for defendants but now i think about when the prosecutor is trying to bring a case against a horrible person and their afraid that one biased juror will nullify the proper verdict because they don’t believe women or have some natural biases against minorities
Sateda: To be clear, I don't think someone being "guilty" makes them a horrible person. But that's more of an aside.
Abydos: Doesn't the judge usually question jurors before they strike them for cause? Who is going to admit to being a racist? Do we really want either side to have to go on a witch hunt to prove someone is racist, rather than just getting rid of them with a peremptory challenge?
Tridam: I agree with Porog - and earlier in today's discussion learned that the presumption of innocence means that jury selection should be based on choosing people who understand that standard - that they are to presume the defendant is innocent, and that this is the key in jury selection - finding jurors who can assume the presumption of innocence honestly and truthfully. This isn't about neutrality - this is about abiding by what the system portends to uphold - a presumption of innocence for defendants. If this is the case, then we need to select jurors based on people who validly presume the defendant is innocent.
Mars: i think some guilty parties are horrible people like child rapists but sure we can agree to disagree lol
DQar: But if there isn't sufficient evidence to strike for cause because they are racist, how do we know they're racist?
Sateda: It's another discussion, @Proteus. You have the popular view for sure. I just think it's more complicated than that. Maybe a topic for another day!
Luyten 726-8B: I'm thinking about the role of the prosecutor - do we see them as "the carceral state" or as "the defender of the public"? Does it matter? As Prof N said at the beginning of class, technically it is the jury that decides the fact of guilt. So the prosecutor doesn't officially "know" that he is bringing a case against a guilty party until the party is convicted. But this is in tension with the idea that prosecutors have to already believe the party is guilty when the bring the charges
Mars: that’s why there should probably be a limit but i can see a case where there isn’t evidence but an intuition and that’s okay when we’re trying to protect victims at least imo
Neptune: @jurors who believe in innocent until proven guilty - I liked Tayonna's point about the power imbalance that clearly puts the prosecution at an advantage rolling into voir dire. It would be ideal to give both sides the "same" right to challenge, but this seems like a tenable solution to level that inherent power imbalance
Cloud City: I think the notion of an impartial jury and a "fair" trial is a chimera in the first place, and this leads me to conclude that allowing only the defense to have peremptory challenges is the best approach. Fairness and impartiality in this context seem to describe a mythical condition where no jurors have any biases whatsoever and the parties are equally resourced, motivated, and competent. But we know this is never the case. A defendant meeting the forces of the state is at a tremendous disadvantage, and in the case of indigent defendants, it is even more one sided. Allowing the defense to have peremptory challenges merely gives David an arrow instead of a rock in his struggle with Goliath. Arguments that the prosecution also deserves a "fair" trial do not convince me. Trials are contests, and fairness in this contest does not mean equality in procedural rules. Fairness here should mean an acceptable level of power disparity and one that matches the rhetoric and purported normative commitments of the state. As of now in the U.S., that disparity is far too great to be called fair for the vast majority of criminal defendants. Allowing peremptory challenges for the defense would simply slide us towards a more acceptable level of disparity.
Hoags Object: This class is taking a very "pro defendant" shape. Like someone else said here, let's not forget that the prosecutor is doing his job on behalf of a victim.
Arcturus: Agreed Scala
Chulak: Prosecutor is not doing his job on behalf of the people/state not the victim
Mars: i think pro defendant and pro victim aren’t always the same thing and maybe that’s framing my opinion
Blackeye: @scala, when you look at the shape of our current system and how bent in favor of the prosecution it is, I think the only remaining path for reform is the "pro defendant" one
Neptune: Agreed @Vartburg
Sullust: @Scala: the prosecution is doing their job on behalf of the state. They owe a duty to all of the people, not just the victim. They have the burden of proving their case.
Mars: so nobody is afraid of some biased jury member out of 12 ruining the right verdict?
Geonosis: I think it is important to recognize the smaller communities where many people are connected to one another. I see the value of peremptory challenges for both sides there.
Sateda: If we are convinced that peremptory challenges are sufficient to eliminate that possibility, I think we are giving attorneys on both sides too much credit, unfortunately.
Mars: so for example what if a jury member is super PRO cop. that’s hard to strike i imagine. they want to nullify what happened to george floyd and let that cop who killed him off the hook. that doesn’t scare anybody at all?
Cloud City: If "pro defendant" means injecting less of a power disparity in criminal trials, then yes I think we can call it that. I think invoking the reality that there are victims and guilty defendants is a complete red herring in this context. We are talking about what we want the contours of the battlefield to look like such that in every single case, both those that involve guilty defendants and innocent defendants, where there are victims and there arent victims, that the disparity is even enough to be called fair. Appealing to emotions by pointing out the fact that there are in fact victims in some cases is a completely separate point that has no bearing on the contours of the trial itself.
Mars: also i couldn’t care less that the prosecution is fulfilling its responsibility to the state so long as the victims interest align and are being protected. why does that even matter?
Hoags Object: I think that burden is high enough. No need to strip the prosecutors of even more power by inherently offsetting the balance during jury selection. Giving the right of peremptory challenges only to D is like saying "Yeah, D can strike jurors for improper cause (if D gets away with it) but the State cannot!" That's just wrong.
Sateda: Prosecutorial power is not something I worry about. I am not an "only give the power to D" proponent, per se, but that's not because I am worried about disadvantaging prosecutors.
Sateda: Prosecutors have TONS of advantages.
Milky Way: @centaurus i'm not sure it's a red herring. We like peremptory challenges for defendants because we want defendants to have fair trials. Similarly, we should port those considerations over for victims, because they also deserve fair trials.
Mars: centaurus A - agreed. i think the battlefield becomes more fair if both parties have the ability to invoke the PC. idk if that’s correct but at least that’s my take so far
Hoags Object: @Bremervoord - so let's give the D the right to arbitrarily strike (because that is what a peremptory strike is) jurors?
Cloud City: @Altair, The insurance that a victim will have a fair trial is baked into the prosecutorial advantage already though. From the moment a suspect is apprehended and charged, the victim is assured a "fair" trial in the sense that it is far mroe likely than not that suspect will either plead guilty or be found guilty by a jury. What I am suggesting is that there is already so much of an assurance that chipping into that great advantage is a price we can absolutely afford and still ensure victims get their fair trial but that defendants are also afforded more fairness
Sateda: I haven't said give the right to D only.
Sateda: That is not my view
Sateda: just offering what I feel is a reality check--prosecutorial power is not my concern when evaluating this issue.