Sure. But the first step is raising awareness about media ownership.

As a former criminal defense lawyer, I'm troubled by your reasoning and wonder if the defendant in your case got a fair trial. Your analsyis seems to come pretty close to saying, "He's a defendant, so he must have done something. Of course the defendant has a reason to lie. The police and prosecutors don't. So let's trust them."

If that's what you did, Mr. Drum, you did not fulfill the role or juror as a bulwark of liberty. And of course, the police and prosecutors sometimes do have a motive to lie.

But maybe I'm just misreading you. Help me out here.

And I rarely read Al, but that was beautiful.

As The Shrill One summarized: "Shape of Earth -- Views Differ."

It is important that all of us re-calibrate our bull$hitometers every once in a while. That and make sure the instrument is plugged in.

I'm interpreting Kevin's argument here as though there was a lot more information than merely the breathalyzer calibration issue. I think he threw it out there as one example of a much larger case that was being blown out of proportion.

Of course I could be wrong, but as a law student I was concerned with my original interpretation of his statement being the same as yours JBD as well...

Yes, it's the oft-observed phenomenon that, in the media, every expressed position must be balanced by its opposite, no matter how ludicrous or factually challenged (global climate change vs. "warming is a myth"), and every observation (flag pin/no flag pin vs. change/McBush) is equally important. Bravo to Bloomberg for saying what he said.

Let me chime in to support jbd. I'm a labor lawyer and I hear employers make this argument all the time: the supervisor has no reason to lie, the grievant has every reason to lie. Riiiiiight. The supervisor fired the guy, based on what he thought the facts were, but he'd never get the facts wrong. Or shade the truth.

The part about everyone wearing suits was nice too. I guess none of them were dressed "too nice."

Sorry you had to spend so much time to convict the guy. Who do you want to play when they do the remake of "Twelve Angry Men"? The E.G. Marshall role? Or Jack Warden?

Wait a second, fellas.

Didn't you notice the sentence: "Eventually someone tackled this head on and suggested that, appearances notwithstanding, SOME OF THE WITNESSES REALLY HAD NO REASON TO LIE OR EXAGGERATE, whereas some of the others pretty plainly did."

If the witnesses Kevin refers to testified that the man was obviously drunk, might that not negate your criticisms?

You mean that when Karl Rove or Billy Kristol says something on Fox News we ought to consider the source? Well, duh.

What about when a Democratic operative says something on any of the MSNBC talking head shows?

How about when John McCain comes out and says Boeing is in bed with the Air Force and a contract should go to the French clients of his lobbyist friends and supporters?

Or when Keith Olbermann says something about Bill O'Reilly or when Bill O'Reilly just opens his mouth? How about when The News Hour brought to you by ADM has a report on the farm bill?

The truth is everybody on television, radio or even here on line who has an axe to grind. Even Kevin Drum or Ralph Nader or shortstop. The best we can hope for is to figure out what each player's axe might be.

"Is this an allegory for how much of the press works today? That's left as an exercise for the reader."

My sources tell me it isn't. However, I'm hoping my phone will ring so I can find out if there's a contrary opinion.

Now you know why civil lawyers prefer bench trials presided over by a judge without juries. Judges are professionals at identifying self-interest.

Al at 2:54
optical weenie at 3:09

Plenty of time for a costume change...
All instruments are now plugged in.

But kidding aside, weenie and Ron B. are both right. There are no unbiased media, and even those media whose biases reflect your own must still be read or watched very closely.

Nah, Al wrote like someone who is acquainted with English.

Ron, I send my axe out to be ground. Don't tell me you still do yours yourself. Time is money.

But the prosecution has obvious reasons to lie and exaggerate as well, their prosecutorial record, the political points to be scored for a conviction, etc.

So I don't see how seeing that half the case has a bias really helps, since the other half has a motive for bias in the other direction.

Kevin, this is a post that cries out for some clarification. Because it APPEARS that you're saying that you had to read between the lines ... on one parties' testimony. Why not the other?

Kevin ponders: "Is this an allegory for how much of the press works today?"

Not really. Virtually all of America's mass media -- from which most Americans get most of their "news" -- is owned and controlled by a handful of giant corporations, and "works" to brainwash and propagandize the American people on behalf of the interests and agenda of its owners, America's Ultra-Rich Ruling Class, Inc.

We Need New Gov't.'s comment is how I'd respond to this again. I don't think the post needs defending, but I took it that witnesses, and not the defense itself, were what had to be analyzed. If witnesses had no reason to lie and clearly saw the man stumbling or puking or something, then the cops tested him with different skills, and THEN gave him a breathalyzer, all while an expert is talking about some technical inaccuracy of the breathalyzer then it would go to the assumption that the breathalyzer discussion was unnecessary and could be dismissed for any one of many reasons (one of which being lying).

I think it was just a poorly explained analogy, but one that makes sense when talking about the breathalyzer in relation to all other evidence from non-stakeholding witnesses.

So I don't see how seeing that half the case has a bias really helps, since the other half has a motive for bias in the other direction.

I think some folks are missing the point here. As someone above noted, it's the quality of the witnesses, not of counsel, in question. Does a paid witness for the defense have more reason to spin than does someone previously unacquainted with the defendant who saw the guy down 10 beers and get behind the wheel?

Of course everyone has an agenda, even those wise enough to agree with us, and of course we all need to keep that in mind. But Kevin's point is that all information is not created equally, and that it can be difficult to discern who is more credible when both parties appear to know what they're doing.

That is the very essence of today's media...except that one might argue that the more usual problem there is determining which of the braying, self-serving asses (thanks for reminding me about Olbermann, Ron) is less credible, even when one of them is presenting solid info. And, piggybacking on SecularAnimist's post, it's the job of the corporate-owned media to continually sow and nurture that confusion.

That's mine at 3:51.

Aha yes... lies, bias, humans and their relationship to the ever-elusive truth.

If you've never watched it, rent Kurosawas' masterpice 'Rashomon'. It is a magnificent study of the human condition.

There were a few different reasons for this, but several hours into it I realized that one of them was something I hadn't expected: a lot of the jurors simply didn't distinguish the quality of the testimony. It didn't occur to them that some witnesses had a greater incentive to lie or twist the truth than others. —Kevin Drum

After nearly 8 years of Bush you're just now figuring this out?

Most Americans 1) apparently lack natural curiosity and thus also lack a corresponding internal BS indicator and 2) are anti-intellectual. How else do you explain the dismal state of our national and even local politics/government?

The very fact that some 40-50% of Americans are currently thinking about voting for McCain, who has yet to say or do one thing that shows how the sort of "leadership" he would offer would be significantly different from the current president, the most unpopular ever since the advent of polling, shows you that both public and private education have failed the majority of us.

Then again, there is also the fact that defense lawyers and prosecutors do their best to minimize the number of thoughtful jury members. I sometimes wonder, since we almost never really get a jury of one's peers or even a decent mix or people, that we ought not to use more multi-judge panels for certain cases, like capital crimes.

Perhaps you should also consider what consequences a witness might face for lying. The last time I was convicted of something, the story told by the police officer wasn't even remotely related to the truth. His location of where the crime took place was ten miles from the real location, for instance. What was strange about it was that the case was a slam dunk and I was guilty. The officer had no reason to lie at all, but he did anyway. From this, I would conclude that the officer knew for sure that he'd never face a perjury charge. So there was no incentive to tell the truth. The incentive was to tell a story that would lead to a conviction, regardless of whether the story was true. On the other hand, I would face a perjury charge if I tried to lie or even tried to challenge a lie. Given that perjury would be a more serious crime, I wasn't even going to risk challenging his story. When it comes down to a he said/ she said situation, the guy in uniform will always win. And you've explained why quite well.

Couple a points since I'm a law student as well.

But the prosecution has obvious reasons to lie and exaggerate as well, their prosecutorial record, the political points to be scored for a conviction, etc.

Not so much for a drunk driving conviction unless he killed someone, and since Kevin said "Drunk driving" instead of "murder" I'm assuming no one died. More on the order of you wasted all this time and money on a trial when you couldn't get a conviction? WTF?!

It's true, defense experts get paid regardless of what they say. It's also true that if you as an expert are found out to have lied on the stand then you are going to get kind of fucked in regular life as well.

But more than that, you take an oath on the stand so your primary assumption MUST be that ALL WITNESSES ARE TELLING THE TRUTH and then proceed. Anything less is a miscarriage of justice.

Bench trial FTW.

I work with several people that gobble up the wingnut chain e-mails like popcorn at a movie. Hook, line and sinker. They pass it all on to me, I give it a cursory read and then proceed to cull a few solids bits of info using Google that lays waste to most of it. They believe the most outlandish BS. Obama raped his mother. Hillary worships Satan. Their little pea brains somehow think because it appeared on their computer ("Right there it is, in black and white, lookit, it says it's so!") it must be true. Researching the truthfulness doesn't even occur to them. These people vote and raise kids. They actually go to parties and barbecues and pass this stuff around like you did a joint in high school. And it gets them just as high. There truly are no limits to the gullibility of people on the right. What is it about their mindset that shuts down the need to question the authority of someone else's claims?

somebody said:
"I think some folks are missing the point here. As someone above noted, it's the quality of the witnesses, not of counsel, in question. Does a paid witness for the defense have more reason to spin than does someone previously unacquainted with the defendant who saw the guy down 10 beers and get behind the wheel?"

Boy I gotta say that is unconvincing.

There are many studies that show the incredible fallibility associated with eyewitness testimony, for starters. Plus whether they really don't know each other, etc. I don't see how this rebuts anything.

Or, for example, scientists who assume breathalyzers work as well as advertised as those that don't - there are certainly herd-like biases in most scientists, who will go along with the scientific norms, which are a product of groupthink as much as any other field.

Consider evolution. The good, as I see it, that creationists have done is to show the uncertainty in much mainstream science. The bad, well, is too painfully obvious. But the point they make is valid as far as it goes.

I still would like Kevin to spell out what he says. He often posts quickly and then has to follow it up later because he wasn't as transparent as he thought he was being. I think this is one of those cases.

MnPundit -

Other biases would be the sheer level of competitiveness and the desire to win in prosecutors. That is a huge one.

But I agree with MNPundit on the larger point. You have to assume both sides are being truthful, anything else is a miscarriage.

Rather than assume one of the witnesses is lying, I would probably take the tack that 95% of scientists, say, think breathalyzers are solid. Just because someone can find an articulate, calm dissenter from the scientific norms doesn't make it respectable.

I guess the more I read comments the more I want Kevin to elaborate on this interesting issue.

As a former prosecutor myself, in DWI cases there is almost always a video of the stop. These days, patrol cars are equipped with video recorders, and they are programmed to turn themselves on automatically under certain circumstances. They can also be turned on manually. Therefore, there should almost always be video evidence of the stop. The prosecution should not rely on breath test results alone to prove guilt. Any prosecutor that does that probably deserves to get a not guilty verdict back. The prosecution should have the officer identify for the jury the "clues" for intoxication that he or she has been trained to look for in DWI suspects. A few of the clues are: 1) odor of alcohol on breath, 2) bloodshot eyes, 3) slurred speech, 4) unsteady gait, 5) horizontal gaze nystagmus (HGN). Only after the officer has identified a sufficient number of clues of intoxication does the officer have probable cause to arrest a person without a warrant. Obviously a juror can't smell a person's breath on video, but other clues of intoxication should be backed up by the video, otherwise the prosecution has no business taking the case to a jury and wasting their time with it. Of course a person has no duty to cooperate with the officer and perform the roadside sobriety tests, so a smart person will just hand the officer their ID and otherwise refuse to cooperate. You have no duty to do anything other than identify yourself to the officer. But drunk drivers tend not to be too smart, so they rarely fail to cooperate with the officer in building a case against themselves. Also, police officers do have reasons for shading their testimony. There is a lot of pressure to get convictions in every case where a person has been arrested due to the fear of being sued for false arrest in the event a person is found not guilty. When I was a prosecutor I personally observed police officers being pressured to shade their testimony to get convictions. It happens all the time. I even saw one police officer who was fired and prosecuted for perjury after he crossed a line and shaded his testimony too much.

The calibration defense is quite valid. I have witnessed a police office in court admit that he had not only not calibrated a radar unit before using it, but that he didn't know it needed to be calibrated, and didn't even know how to calibrate it. The judge was not happy, and threw the case out.

In my case, on the same day, another officer had set up a radar speed trap (he was parked too close to the change of speed limit sign). A number of people before me had been ticketed at the same spot on the same day, and been found guilty. I presented evidence of the location of the car and the sign, and got my case dismissed.

In another speeding case, where I was the defendant, the officer lied about the circumstance of the stop. The judge caught him in the lie and dismissed the case.

So my own experience is that the police can be sloppy, and will at times lie to save their case.

I don't think a defendant's incentive to lie should set aside a jury's responsibility to find the defendant guilty beyond a resonable doubt.

Yikes! Thanks, PocketRocket, for making it harder for me to drive on the road without having a nervous breakdown. Yglesias had a post a bit back where he talks about the scary trend of cops using tasers to enforce compliance wth their instructions, not just to protect themselves.

Having read your interesting comments, I understand Drum's post less.

A stopped driver does not have to cooperate and do the roadside tests? Maybe there is a distinction between the "walk the line" type tests and the breathalyzer test, because I was always under the assumption that denying a breathalyzer was grounds for automatic arrest? Pocket Rocket, can you please explain this for me?

Assuming everyone is telling the truth sounds ridiculous.

Person 1: I saw Person 2 do it.
Person 2: I didn't do it.

Since they are both telling the truth acquittal due to a logical contradiction.

I'm pretty sure one of juries main duties is to asses the credibility of people offering testimony.

I'll have to remember your story if I ever have the misfortune to serve on a jury.

Anyway, I expect more commenters to get to work talking at length about that filth George W. Bush and all of his lies. One or two above have said a little. But not enough. You can never say enough.

There. I've said enough.

slor:
scientists who assume breathalyzers work as well as advertised as those that don't
The argument in court is over whether the radar, breathalyzer, etc. is calibrated, not whether it's infallible. Any instrument has to be calibrated. Any scientist will tell you that.

The good, as I see it, that creationists have done is to show the uncertainty in much mainstream science.
I would also venture a guess that most "mainstream scientists" are well aware of where the uncertainties lie.

Many years ago, I was on a jury for a trial where one witness for the state seemed to have no incentive to lie (and seemed truthful), and a witness for the defense had an obvious reason to lie (and was an obvious liar). We made our decision accordingly.

Juries are under no obligation to believe that all witnesses are equally truthful, or equally knowledgeable, or equally relevant. And to all you defense attorneys out there, I assure you I'll tell you that in plain language if you ask me my opinion during jury selection.

My sources tell me it isn't. However, I'm hoping my phone will ring so I can find out if there's a contrary opinion.

Posted by: Quaker

droll indeed, quaker.

your pal,
tim

But I agree with MNPundit on the larger point. You have to assume both sides are being truthful, anything else is a miscarriage.

No, you don't, and no, it's not. For one thing, it may often be logically impossible to assume both sides are being truthful when they're asserting directly contradictory facts. One is lying or, at the least, mistaken. It's part of a juror's job to decide which one it is.

A stopped driver does not have to cooperate and do the roadside tests? Maybe there is a distinction between the "walk the line" type tests and the breathalyzer test, because I was always under the assumption that denying a breathalyzer was grounds for automatic arrest? Pocket Rocket, can you please explain this for me?

Fifth Amendment to the US Constitution, which provides that "No person....shall be compelled in any criminal case to be a witness against himself...." I.e., you don't have to say a word or do anything to cooperate. This is reflected in the famous Miranda warning, when the police caution you upon arrest that "You have the right to remain silent...."

That's why denying a breathalyzer is not grounds for automatic arrest. It may be grounds, depending on the state, for automatic suspension of the license. Refusing to take a breathalyzer test, however, is not in itself a criminal act and therefore not grounds for arrest -- or, to put it another way, the police can't arrest you for not cooperating with them in their efforts to arrest you (barring actual physical struggle or flight, which can be resisting arrest).

Sorry, I knew that, when I said grounds for automatic arrest I guess I was mistaken because I had heard of the suspension of license. I do, however, believe, denying to take a breathalyzer is one of the factors allowing a police officer to detain a person for DWI. I got mixed up in my own definitions, sorry about that.

Kevin's story is not an allegory for how the press works. It's an allegory for how the public reading the press works.

Most of the press, even the electronic press, sees itself as being interested in getting the story right. But what is the story? If candidate A is accusing candidate B of having done some unspeakable thing in public office, there are at least two stories. Of these, by far the easiest to report on (especially on deadline) is the one about the accusation by candidate A, and candidate B's response. Call this the "A said/B said" story. This easily ties into analyses of the campaign, the political story most of the media (for several reasons, including simple peer pressure) prefers to cover anyway.

The other story is much harder to cover. It can involve whether candidate B ever really did the unspeakable thing he's been accused of by candidate A; whether the thing he did was really so unspeakable; whether candidate A had a reason to exaggerate or even make up his accusation and has a prior record of doing this kind of thing; and whether candidate A has or has not done something like what he is accusing candidate B of doing.

The second story may or may not be more important than the first. Something we know for certain, though, is that one part of the media's audience will nearly always think the second story is way more important than the first -- partisans of candidate A and candidate B. Basically, they want the media to take their candidate's side (technically, they argue that if the media were really devoted to objectivity, upright morals and a variety of other good things, the media would take their candidate's side. This amounts to the same thing). When the media does this, partisans of the favored candidate pronounce it "fair and balanced." Partisans of the other candidate pronounce it biased.

The second story usually does get reported, though not nearly as often as the first. Even another group of stories -- the ones that focus on how both candidate A and candidate B are ducking questions and ignoring a public policy issue of real significance because they don't know anything about it -- get reported. In total, a whole lot of stories get reported, and the public has to tease out from them all what is really going on.

We tend sometimes to underestimate how difficult this really is for people who devote most of their time and attention to things other than politics. It's at least as difficult as a jury's task trying to sort out what happened in a criminal case. The jury, after all, has several hours a day uninterrupted, during which they can consider evidence about what happened. They don't have to sort through evidence the way most people follow politics -- a few minutes one day, a half hour the next -- and they only need to decide for themselves what happened. They don't need to decide what it means.

Stefan, being mistaken doesn't mean one isn't being truthful. Yes people lie. Even (some of my colleagues would say especially) policemen lie. The fact is that very rarely do two people see the same thing. Eyewitness reports are often wrong and are all too often given greater credence than they deserve.

"given the history of the past twenty years, it's amazing how rarely voters are given similar warnings."

Uh, Kevin, I think he's referring to you.

I lived many years in Israel and in Europe.
Over there facts are just facts and then people
disagree what to do about them.
Here in the US no fact is more reality than
what is said on the tube. And the side which concedes the facts, already lost the argument.

The degree of distortions of the truth here by politicians, pundits, policy "experts, etc.,
is unbelievable. In other countries if
you try to distort the facts you lose the
credibility and no one listen to you anymore.

Are the folks here less educated? More inclined to believe in fairy tales?

I don't know. Please help me to understand.

They believe the most outlandish BS. Obama raped his mother.

Holy Effin' Christ. I hesitate even to draw attention to this, but -- is this really going around in emails, or was that an exaggeration?

"Are the folks here less educated? More inclined to believe in fairy tales?

I don't know. Please help me to understand."

At least we know not to mess with the Zohan.

Stefan, being mistaken doesn't mean one isn't being truthful.

Yes, that's why I said "One is lying or, at the least, mistaken." But in either case, the juror's job is partly to assess the credibility of the speaker and/or the credibility or likelihood of the facts the speaker is asserting.

The fact is that very rarely do two people see the same thing. Eyewitness reports are often wrong and are all too often given greater credence than they deserve.

Absolutely correct.

So the people who had more reason to lie were the police officers, right?

Day 1 in law school trial advocacy: "Police lie. They lie like rugs."

maybe the place for lie detectors is not in the investigative process, but during the trial phase?

A few years back I served on a DUI jury. It was complete waste of a week of court time, but a real eye-opener about jury motivations and behaviors, none of which was positive. However, the really interesting part was *both* attorneys telling us afterwards you should always refuse to take roadside sobriety tests -- no evidence, no conviction. (That was funny coming from the ADA since in this case they were prosecuting with no BAC evidence.) A friend's ex, a defense lawyer in another state, says the same. Thank them politely, but decline.

"I think some folks are missing the point here."

I'll say. Kevin's post has nothing to do really with the jury trial process in the U.S. but, rather, how most Americans lack critical thinking skills. This is the Political Animal blog not Jurisprudence Today.

Re my experience on a drunk driving jury. The conservative middle age women refused to believe a police officer’s testimony should not be grounds for automatic conviction. This was somewhat compensated for a young male who refused to believe a police officer could ever be trusted to tell the truth (we ended up a hung jury). I was impressed how a clever attorney can challenge the result of a failed field sobriety check (poor balance, new cowboy boots, etc, etc); the same performance on video is typically far more damning. In our case not being able to touch your nose with your eyes closed didn’t seem so bad, till the next Saturday when I was at home with a major buzz going and I tried it. The defendant really must have been blind drunk to fail.

As to the question of whether a jury has to believe a witness’ testimony, the whole point of testifying in person is to allow the jury to evaluate the veracity of the witness. Maybe some of the law students expressing their opinions here should spend some time on jury duty.

Thank you, Jeff II. It looks like we lost the original thread a few hours ago.

America is a mendacious society where lying is well rewarded. Presidents lie for war and their friends earn billions. Prosecutors lie innocents into death row and are elected to higher positions of authority. Media companies lie to control public opinion and are rewarded with deregulation. Mendacity is the new American ideal.

You forgot one, Brojo: Husbands lie about being faithful to their wives.

The irony of course being that Bloomberg is entirely full of shit himself, from what I can tell. He's an elitist autocrat with no respect for the rule of law or what us peasant folk think.

I don't want to deflect attention from America's anti-intellectualism, amazing level of general ignorance, and lack of critical thinking skills, but another element here I think is the 'nice' factor, where folks want to believe the best about people. You know, "if you can't say anything nice..." This is, of course, in itself a kind intellectual short-circuiting of critical thought, a lazy heuristic masked partially by good intent which makes it all the more pernicious and open to exploitation. Plus, thinking is just so hard, and it gives you those ugly lines on your forehead. It's so much easier to fall back on simplistic ideological schemas (like the fallacy of false equity) that order an increasingly complex world in nice, neat categories (and just a couple of those, please) than it is to make the demanding and uncertain determinations involved in real world conflict. Hmmmm...obvious BushCo derogations here.

Good for Micheal B. Will he endorse Obama (or did I miss something already) despite being an R (yet prior Dem), I heard he might.

Perfect site, i like it!