At 23:01 28/01/04 +0000, Dr Mark Temple wrote:
>To err is human so it should not surprise us if those who think they are
>right are sometimes wrong. But remember when "we" condemn something as
>obviously unjust someone else may know something that have not been
>revealed into the open.
The fact that to err is human is surely the reason why, apart from very
exceptional situations (e.g. when 'national security' is genuinely at
risk), the judicial process should be totally open and visible. As the
saying goes, justice does not only need to be done (as well as fallible
humans can manage) but also needs to be 'seen to be done'.
I am accordingly very uncomfortable with the suggestion that a conviction
might result from something 'which someone else knows but which has not
been revealed into the open'.
>I am aware in some of the spectacular "miscarriages" modern forensic
>techniques have removed the doubts as to correctness of the original
>jury decisions. However our system for all it s faults does not permit
>the prosecution another go.
Of course. In the atmosphere of a discussion list whose membership is
primarily statisticians, we are obviously all acutely aware of the
inevitable trade-off between what are effectively Type I and Type II errors
(or, in a different parlance, between sensitivity and specificity). I
fear, however, that the general public do not think about this quite so
deeply, particularly since no attempt is made to ascribe a probabilistic
quantification of 'beyond reasonable doubt".
If that test of guilt were quantified as, say, 95%, this would then bring
it home fairly dramatically to the wider world that the price we (society)
was paying for the desired degree of 'sensitivity' (proportion of guilty
who were convicted) was that up to 5% of those convicted and sentenced
would actually be actually innocent.
There is obviously no right/wrong about the chosen balance between
sensitivity and specificity - it is up to society to decide where it wants
to set that balance. However, in making that decision, and living with it,
society obviously has got to accept that the more it wants to convict the
guilty, the more innocent people will be convicted.
It is apparent that the system we have is designed to err on the side of
failing to convict the guilty, since conviction of the innocent is regarded
as abhorrent - as witness the fact that, as Mark says, we allow those who
are prosecuted, but not the prosecution, a potential 'second bite of the
cherry'. That may, or may not, be what society actually wants. Individual
members of society probably have to personalise the decision process - i.e.
they should ask themselves whether THEY would be prepared to live with an
increased risk of going to prison for a crime they hadn't committed in
order to increase the probability of the guilty being convicted; I suspect
that most would not be prepared to answer 'yes' to that.
>The only time I have been aware of the diagnosis of MSBP being made was
>when a child with unexplained illness was covertly filmed in hospital
>and so it was documented that, in this case, the mother was responsible
>for the child's symptoms and signs. On direct confrontation, she
>admitted the facts and illness of the child improved.
Indisputable (e.g. video) evidence of a parent harming a child obviously
does not go anywhere near establishing a diagnosis of 'MSBP'. There are
also sorts of possible reasons for the child-harming of which 'MSBP' may or
may not be one (probably pretty rare) reason.
>The real problem is that the Law is a blunt instrument and when
>sledgehammers are used people get hurt. Perhaps we should all learn to
>trust more then the temptation to blame would be less.
I think one would have to live in a far more perfect world than we have for
that advice to be prudent. As things are, in my opinion there are far too
many individuals, bodies/institutions and 'systems' which do not always
deserve our trust for that to be a prudent course.
I certainly agree that in situations such as we've been discussing, one
should avoid as far as possible ascribing 'blame' to individuals, when the
imperfections we would like to try to reduce are primarily those of
'systems'. Pursuing individual 'scapegoats' is very rarely the best way
forward.
>I grant you that all this is a somewhat side issue to the main problem
>here which was experts giving opinions outside their expertise. Something
>that perhaps all of us on this list have done at some time hopefully with less
>disastrous repercussions.
Agreed. Indeed, not only may opinions be given which are outside of the
expertise of the 'expert', but even when the subject matter is _within_ the
expert's field of alleged expertise, that opinion may be wrong or
controversial. That is why, as I have already said, I do not think that a
court (i.e. judge) should allow expert testimony which is crucial to the
case to go unsupported/ unchallenged. In other words, when expert
testimony is crucial to a conviction, I believe that there should always be
'second (or more) opinions' presented to the court - by the order of the
court, if necessary, if the defence chooses not to call its own expert
witnesses.
>Sorry to rant a bit but hindsight is always good. Remember always to
>consider ye may be wrong. I know I am often but I do my best.
As I've said, it's because of the risk that any person, or 'system' may be
wrong that I feel strongly in the need for transparency, and hence possible
accountability, of the processes.
Kind Regards,
John
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