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HPU CRJ 3200 - Theory of Adversary Trial
Transcript of HPU CRJ 3200 - Theory of Adversary Trial
Trials, ultimately, are a form of dispute resolution
Facets of dispute resolution to consider....
Obligations of disputants to each other
Barriers to decision-making
Is information complete?
Is information accurate?
How far back in time to we go?
How do we account for cognitive biases?
What does a good--or successful--outcome look like?
What "actually" happened?
Can we devise a method that comes close to the "truth" most of the time?
One last aspect...
What about rights?
Better that ten guilty persons escape than that one innocent suffer
- Commentary on the Laws of England
So what does the United States' system emphasize? Desire? Achieve?
How does it do it?
"regulated storytelling contest between advocates of competing, interpretive stories that are composed under significant restraints"
Both sides use the same information to create stories in order to prove historical facts
The idea is that both sides want to win so they will tell the best story they can.
in this theory?
Does either side care? Should they?
Would it be better to.....
Flip a coin.....
Roll some dice....
Play a football game....
Play a soccer game....
Have the two sides fight it out?
1) examine historical facts
2) determine culpability
I say you stole something from me.
You say you did not.
What do we do?
What purpose does the decision-maker serve?
What outcome do we want the decision-maker to reach?
Accurate? Just? Fair?
One that everyone accepts?
Determine facts only?
Decide who is right?
What should the decision-maker be like?
What background? Training? Experience?
Familiar with those involved or not?
Who gets to decide who decides?
Who should be considered?
How do we identify potential decision-makers?
What should they do?
What role should they play?
Present evidence? Present an argument?
What should they hope to achieve?
What outcome should they seek?
Same person who makes the ultimate decision?
Should it be a person? What about a computer? Science?
What characteristics should the fact-finder have?
Independent of disputants? With disputants?
Only the disputants?
Hear both sides? One side? No sides?
Degree of certainty? Absolute? More likely than not? Possibly?
What is the "evidence"?
-Science? Witnesses? Parties?
What facts should they determine?
-Ultimate? Every? Specific?
Immediately after the incident?
After time for investigation, reflection?
At the same time as the decision?
Resolve the dispute themselves?
With a mediator?
No communication at all?
Should they speak for themselves or have someone else speak for them? If so, whom? Friend? Hire someone?
How do we know?
Are there inconsistencies?
How were they resolved?
Are we missing anything?
If so, how can we get it?
Is it possible to get it?
How much of the back story do we want?
How much detail do we need?
Cognitive biases = errors in the thinking process
Example: If we begin by believing the person committed the crime, we will perceive all evidence from that standpoint AND we will discard evidence to the contrary.
Is everyone happy?
Is everyone satisfied?
Is it accurate?
Is it just?
Is it fair?
Can it do all these things at once?
Suppose the verdict is accurate but one party is unhappy?
Suppose the verdict is just and fair but not accurate?
Can the outcome do ANY of these things?
Suppose I am a better story teller than you are? Can I win even if I am not being totally truthful?
What are the restraints?
Rules of the contest....
How do we know who won the contest?
We use a neutral decision-maker who is fair and impartial and, usually, has no experience making such decisions and who is instructed regarding the law and who must apply it to the facts, as they determine them
This decision is considered: (1) accurate; (2) just; (3) fair