Such high level discussions are academic. Nobody, not even your daughter or Antonin Scalia, would seriously advocate improsing young Moslem men. Maybe young Jehovah's Witnesses for being annoying, but not young Moslem men.

But again, it's a philosophical, academic discussion. It tells us what our jury system ought to do, perhaps guides a little on rules of evidence and courtroom decorum and the like. Sit on a jury, evaluate the facts presented in the case, deliberate within the confines of the jury instructions, and then try to figure out the connection between the philosophical argument that "it's better that 100 puppy killers go free than one person be wrongly convicted of jaywalking" and why the middle-aged librarian can't get past the defendant's baby blue eyes to see that his DNA was on the quesadilla he allegedly tossed from his car window.

Obviously, this is all George W. Bush's fault. On that we can all agree.

OK, here's a somewhat similar topic for debate. Rumsfled bans cameras in Iraq. Knee-jerk reaction will be that he doesn't want any more evidence to pop up. But think a little deeper... Perhaps the availability of these cameras for personal use is a key component in the abuse. Just like "Girls gone wild" would never work as a concept unless it could be shot really cheaply (like with personal cameras). So assume that is the ultimate reasoning behind the ban. Is it fair to the overwhelming majority of troops in theatre that they cannot use cameras to remember their experiences or people they meet or maintain contact with those at home? When I was very young and my Dad was stationed away in Thailand for a year, the cassette tapes we received in the mail were priceless. I imagine that families today feel the same about a digital photo e-mailed from Iraq. So again, is it fair to the overwhelming majority of good guys that they can no longer use these technologies because they may have contributed to things getting out of hand in the prisons?

I actually will be reporting for jury duty in early June.

Yes, the question is to some extent academic and the rules of evidence and what constitutes reasonable doubt not only vary but are applied variously by juries. But, it's not just academic, even disregarding the new crop of cases of preventive detention.

Academic?!? You have got to be kidding Brad. If it was you locked up in jail I have a strange feeling it wouldn't feel so academic... And all evidence points to there being a lot of innocent people now being in our prison system, and only some of them are on death row, where occasional attention is paid. Now obviously our jury system is based on probability and the odds of it being 100% flawless are beyond tiny. But to argue that its better to lock up a *real* person without evidence in order to prevent a *hypothetical* rape is beyond immoral. Seriously by that logic (if you can call it such) all males should be locked up. And sadly enough among certain demographics in the US it appears like we are following a strategy pretty close to those lines. Nearly 40% of black males in the US between 20-29 are incarcerated or under parole or probation [ http://www.bet.com/articles/1,,c1gb6923-7726,00.html ] is that academic?

If it wasn't so tragic it be funny, but originally "an eye for an eye a tooth for a tooth" was designed to limit the extent of punishment. Nowadays its often constructed as barbaric, but obvious there are times we need to heed by it. And when it comes to locking up real people in order to prevent crimes we have no evidence they will commit, it actually might serve to guide us...

Abe,

What I just love about the question David and his daughter raise is that it's almost tautological. Re-read my post. I argue that the queston is moot, not that it's OK to lock up one innocent person so that 100 guilty don't go free. Yet you intrepret my indifference as not caring about the innocent person who is locked up. Nothing could be further from the truth. I hope that the judicial process gives the innocent an opportunity to prove it (at reasonable cost to the rest of us). Seriously, if Martha Stewart can't have the handwriting testimony set aside in a new trial, home fashion might actually make it out of the KMart era. How tragic would that be?

We should have a system that makes it difficult to convict people -- requiring evidence that makes a convincing case of guilt. We should be wary of changes to the process that make it unfair or arbitrary. But there should not be a variation of Godwin's Law that says that every time we dicsuss tweaking the process, things eventually devolve into this silly "let 100 killers go so that guy who wasn't really going 56 in a 55 doesn't get wrongly convicted". I get the sentiment, heck I even agree with it, but please, it so does not matter.

David - your comments remind of an article Richard Rorty published in the Nation in October 2002, titled Fighting Terrorism with Democracy . Though not quite the same issue, I think he makes a similar point in the final paragraph:

"We may have the strength to keep our democratic institutions intact even after realizing that our cities may never again be invulnerable. We may be able to keep the moral gains--the increases in political freedom and in social justice -- made by the West in the past two centuries even if 9/11 is repeated year after year. But we shall only do so if the voters of the democracies stop their governments from putting their countries on a permanent war footing -- from creating a situation in which neither the judges nor the newspapers can restrain organizations like the FBI from doing whatever they please, and in which the military absorbs most of the nation's resources.".

The whole article is still relevant, even after 18 months.

I have a fair amount to do with courts and trials (I'm an interpreter). I think the American justice system does about as well as any, and it probably even gets it right most of the time, but I also think there are too many innocent people in jail already.