The defense does have many protections and some advantages. People will often think these are too much when they see people seemingly getting away with a crime.
But over the years the prosecution has gained some tremendous advantages in the US’s system. In the past jurors actually investigated the evidence themselves and could ask questions. They were not sequestered and allowed to only listen.
In actuality, the defense has few advantages. The only advantage is the presumption of innocence and the burden of proof being placed on the State. Other than that, the State has the the huge advantages of unlimited funds and personnel. (Which is one of the reasons that the burden is placed on the State to prove its case beyond a reasonable doubt.
I have practiced criminal defense for 16 years. One really doesn’t understand the power imbalance. You really sense the imbalance until you have reviewed the DA’s file during discovery. When you see the number of police reports filed on an average misdemeanor trespassing case, you get a true sense.
Jurors have never had the right to investigate cases on their own. In fact, at common law, jurors were sequestered during the pendancy of the trial. Please cite a source for this.
In the past citizens could much more easily bring charges to the grand jury and they did not have full time prosecutors whose job it was to bring charges. This has created a huge advantage for the state which is able to get away with its own crimes and as has been said a grand jury will indict a ham sandwich.
Once again, please cite a source. Citizens have never had much access to grand juries. Accessing them and presenting cases to them has always been a prosecutoral function. In the United States in particular, prosecution is a governmental function.
In England, a few private prosecutions are allowed. However, in the United States, no provision has ever been made for private prosecutions.
There was also the theory of juror nullification where a juror could invalidate the law if he thought the law wrong. I forget the history of this, but I feel fairly confident that modern courts really try to eliminate anyone who would use this tool from a jury. Nullification was a check on state power.
You don’t need to say much. You’re one of those jury nullification people. Nullification is only relevent in a small, insignificant number of cases. The case law is abundantly clear: if the defense requests a nullification instruction, the judge must give it.
In my opinion what has happened is the state’s power has grown tremendously. The citizen is in many ways has lost advantages. But there are some advantages given to citizens that are mostly illogical and I am tempted to believe are, if anything, designed to sew chaos. The Miranda warning is one example.
Are you even familiar with the Miranda ruling beyond just what you have seen in TV cop shows? Yeah. On NYPD Blue or The Closer or Police Woman or Hill Street Blues or Law & Order, the bad guy gets away because “he wasn’t read his rights.” Miranda only applies when the Defendant gives a statement under custodial interrogation. As cops have gotten smarter, Miranda has become more and more irrelevant. They have started using confession forms that have each right spelled out with a blank for the defendant to initial. Seriously, the number of confessions (not cases, but confessions) that get kicked out due to Miranda is insignificant.
