Prosecutorial Withholding of Evidence, and Adding Someone to Trials to Speak for the Truth

[nancylebov]

https://www.nytimes.com/2017/08/01/magazine/she-was-convicted-of-killing-her-mother-prosecutors-withheld-the-evidence-that-would-have-freed-her.html?smid=fb-share

In addition to the specific case, the article has a history of prosecutors withholding evidence and the laws related to that. It's been very bad, but recently, some prosecutors have been supporting broad disclosure, a requirement that *all* the evidence be shared.

I'm not convinced that this will be enough, though it seems like a good idea.

I think great deal of the problem is the adversarial approach to trials. It seems unlikely that Americans will give up the prosecutor vs. defense system, so I propose adding a third person to trials who's not allied with either side-- their job is to repeatedly address the question of whether the arguments make sense.

Zande Myrande wrote up a beginning of a trial which includes a third advocate-- this may make the idea clearer.

Comments

[chickenfeet]

>>So I propose adding a third person to trials who's not allied with either side-- their job is to repeatedly address the question of whether the arguments make sense

Isn't that the judge's job?

[nancylebov]

No, the judge's job is to side with the law, which is sometimes related to whether the the DA and the prosecutor are making sense, but not reliably so.

[ndrosen]

That's an interesting idea. I do wonder, though, who would choose the advocatus veritatis, or, given such a person -- perhaps a new law school graduate hired by the District AV's office -- what her biases might be. Suppose that she subjected the prosecutor's rhetoric to hostile cross-examination, it did not do near as much to the defense attorney? Would that be bias on her part, or would that be justified by the situation in that particular case.

Also, I'm reminded of letting jurors ask questions, which has occasionally been permitted. In one case, a juror had the bright idea of having a witness Putnam the clothes he had been wearing while slashed with a knife. Comparing the slashes in the clothes to his own wounds helped establish, if I recall correctly, that he had been wounded while trying to fend off an attacker, not while committing aggression.