This blog loves to share provocative “out of the box” ideas that can get conversation going. Here is one on how to remove some of the unconscious cultural and ethnic bias in our legal system. It comes from Sherna Deamer, retired director of the Contra Costa Virtual Self Help Center (obviously speaking only for herself).
Until the 1960s, there were virtually no women in any of the major orchestras in the United States. The sad truth, we were told, was that women just couldn’t play any orchestral instruments as well as men could. That was just a fact of life. Then, musicians in the women’s liberation movement suggested (fought for) the holding of auditions behind curtains, so the judges couldn’t see whether the applicant was a man or a woman. Well! All of a sudden there were women in all sorts of orchestras, and now it is common place to see a woman even in the position of first violin.
What if, for criminal cases, the case would be given a temporary name for use until adjudication: “State vs. 02/12/15 #6” for example – the date the case was filed, plus an identifying number. That way, the actual name of the defendant would not be generally known. Is it McGee? Or is it Sanchez? Does that matter, if the goal is to try the case on the merits of the facts? Would “Defendant 02/12/15 #6” work just as well in the interest of justice?
The judge who would do the arraignment would meet the defendant, presumably, but none of the other judicial offices would. Further, the records would be redacted so that none of the judicial officers involved in the case would know whether either of the parties was male or female, black or white, young or old, rich or poor. All of the pretrial hearings on motions, evidentiary hearings, and so on, would be done by judges who could not be the trial judge. They would just be deciding the legal issues being raised by the lawyers.
During the trial itself, both the victim and the accused would sit behind curtains. Again, neither the judge nor jury would know whether either of the parties was male or female, black or white, young or old, rich or poor. Both the victim and the defendant would testify, and submit to cross-examination, but they would speak to a “translator” – someone with a BBC-trained neutral voice – who would then repeat what they said into a microphone for all to hear. And both “translators” would be of the same sex: two female “translators”, or two male “translators” so as not to prejudice the judge and jury.
The lawyers for each side would have to know who they were representing. But they there would have to be very strict rules about what they could say in court. “Just the facts,” as they say. “The victim claims that this is what happened to him or her, and here is the evidence that that is true.” “The defendant claims that he or she did not commit the crime, and here is the evidence that that is true.” Then let the judge and jury decide based on fact, not on prejudice.
WORTH SOME EXPERIMENTS
This would be a super-simple system to cheat. I can think of dozens of ways the court staff, judicial officers, lawyers and others could all “slip” and move the case from the factual to the emotional. However, if there were a judicial system somewhere that was willing to try doing what it could to eliminate known prejudices, perhaps a lot could be learned.