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¶8: Appeals: VOTING CLOSED

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Jnyusa
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Posted: Sat 14 May , 2005 2:10 am
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Former admins is alright with me, too.

We can still simply go through them in backwards order. No one has to make a subjective selection.

We should specify, though, to whom is the request for an appeal made. Any current admin, I guess. And they would then confirm the availability of former admins to serve on the panel ... same way we would bring admins into office, only backwards.

Jn

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Axordil
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Former admins are probably our best bet at this time.

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Jnyusa
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Voronwe: There is no factual dispute over whether he posted it, just a dispute over whether the image really was obscene.

Let us argue this out a bit. Remember that the paragraph currently states that all appeals must be heard.

The example you gave basically says that any decisions requiring judgment on the part of the jury can be appealed. There would be no case in which one jury would be sufficient.

Because ....

I could argue for at least three pages that a picture of Scalia sodomizing his wife is political commentary rather than obscenity as long as the genitalia don't show and there is no frontal nudity of the wife.

Under what circumstances would a jury decision actually hold? Only when the member agrees with the jury, imo. So why not change ¶4 and say that there will be two hearings any time a member does not like the first decision?

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Axordil
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It comes down to an issue of trusting the membership, and the juries in particular, to do their job as best they can. When one becomes a member of B77, one accepts the charter and its articles as they (will) stand...including the possibility that one's idea of obscene isn't the same as the rest of the board's, say. If people can't live with that, they don't belong in a member-moderated board, they belong in a true anarchy.

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Primula_Baggins
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:clap:

Well said, Ax.

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IdylleSeethes
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Jnyusa,

First, I agree with you.

Second, Voronwe is obviously setting himself up for having more power in his retirement.
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Have the appeals heard by a panel of former admins. I really don't think that current admins should be given that kind of power.

Third, Voronwe's first example contains a secondary issue on the rules of evidence. It presupposes that it is legitimate for a jury to make a decision without any evidence, just testimony. In this milieu, evidence includes text and images. I am uncomfortable with decisions being made with no evidence, which goes back to an earlier statement in another post about the ability of databases to do transaction logging, so that there is never a question about what existed. Even with this there is a technical hole since it is probably simple to have a post appear on B77 that is not a post on B77. I've mentioned this illusion problem before.

It seems that we are allowing the jury to accept any testimony and allow the jury to make decisions on what they believe, rather than what they know. I prefer discussions of belief be held in the Symposium.

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Voronwë_the_Faithful
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Posted: Sat 14 May , 2005 5:49 pm
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Quote:
I could argue for at least three pages that a picture of Scalia sodomizing his wife is political commentary rather than obscenity as long as the genitalia don't show and there is no frontal nudity of the wife.
And I would agree with you 100%. That actually bears out my point. I would only want someone to be punished for posting something obscene if they really did post something obscene. If its a grey area then I think the discretion of the jury should not be questioned. But what of my second example. The image just shows Scalia looking at shocked at the law students question. But for whatever reason the jury decided that was inappropriately obscene, just because it mentioned sodomy. Not only would, in my opinion, the member be unfairly punished for something that clearly did not violate the by-law she was accused of violating, even worse, it would set a precedent for future conduct, since it would be unfair to punish one member for something but not punish another for equivalent conduct.
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It comes down to an issue of trusting the membership, and the juries in particular, to do their job as best they can. When one becomes a member of B77, one accepts the charter and its articles as they (will) stand...including the possibility that one's idea of obscene isn't the same as the rest of the board's, say. If people can't live with that, they don't belong in a member-moderated board, they belong in a true anarchy.
I'm sorry, but I disagree with this. I have seen too many juries make decisions that are simply so far out of line with the relevant law (no matter how well they are instructed by the judge) to just blindly accept that whatever interpretation a randomly selected jury has of a by-law is going to automatically have to be accepted by the membership, no matter how far it is from what the membership as a whole believes.
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So why not change ¶4 and say that there will be two hearings any time a member does not like the first decision?
As I said before, if it is a question of credibility or another issue of disputed fact, the jury's decision should stand. To have a second panel reconsider those kind of issues would lead to the anarchy that Ax warns of.


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Primula_Baggins
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Posted: Sat 14 May , 2005 5:53 pm
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IdylleSeethes wrote:
Third, Voronwe's first example contains a secondary issue on the rules of evidence. It presupposes that it is legitimate for a jury to make a decision without any evidence, just testimony. In this milieu, evidence includes text and images. I am uncomfortable with decisions being made with no evidence, which goes back to an earlier statement in another post about the ability of databases to do transaction logging, so that there is never a question about what existed. Even with this there is a technical hole since it is probably simple to have a post appear on B77 that is not a post on B77. I've mentioned this illusion problem before.

It seems that we are allowing the jury to accept any testimony and allow the jury to make decisions on what they believe, rather than what they know. I prefer discussions of belief be held in the Symposium.
But if the text and the images can be edited without leaving a trace, then how can there possibly be any evidence for anything? After all, admins can change anything and leave no trace, and no one can prove that they didn't. If a member accused of posting porn, for example, insists that it was planted in his post by an admin, then for lack of evidence he will have to be let off. In other words, we will not be able to enforce that by-law at all.

The same of course would apply to commercial spam, threats of violence, anything.

In this small arena can we not decide to have more flexibility than formal U.S. law allows?

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Voronwë_the_Faithful
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Quote:
Third, Voronwe's first example contains a secondary issue on the rules of evidence. It presupposes that it is legitimate for a jury to make a decision without any evidence, just testimony. In this milieu, evidence includes text and images. I am uncomfortable with decisions being made with no evidence, which goes back to an earlier statement in another post about the ability of databases to do transaction logging, so that there is never a question about what existed. Even with this there is a technical hole since it is probably simple to have a post appear on B77 that is not a post on B77. I've mentioned this illusion problem before.
In that case we might as well throw out the whole process and all go home, since the type of evidence that you seem to want to require simply is not going to exist. I see no reason why testimony should not be considered good evidence. It is BY FAR the most common type of evidence used in court cases. If six people all say they saw the image it is reasonable to believe them over the one person who said he didn't post it. If it is one person's word against another, there should only be a conviction if there is some reasonable reason to believe the accuser over the accused.

That brings up another issue. We should have a clearly stated burden of proof. I think we should explicitly state that people can only be punished if the jury believes beyond a reasonable doubt that the violation occurred. This of course does not belong in Appeals, but I would strongly support having a separate vote to add this provision to the appropriate paragraph.


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Jnyusa
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Posted: Sat 14 May , 2005 6:29 pm
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Idylle: It seems that we are allowing the jury to accept any testimony and allow the jury to make decisions on what they believe, rather than what they know. I prefer discussions of belief be held in the Symposium.

A blind juror in RL cannot testify to what he saw, only to what he heard. We are in the same position here. We have to enforce based on the best evidence available. (Finding the half-eaten goldfish in the saucer of milk.)

Voronwe: We should have a clearly stated burden of proof ... beyond a reasonable doubt ... I would strongly support having a separate vote to add this provision to the appropriate paragraph.

I can add a "burden of proof" clause to ¶4. We don't need to vote separately because we haven't voted yet on ¶4.

If its a grey area then I think the discretion of the jury should not be questioned.

I suspect that 90% of our Hearings are going to be gray areas up to the discretion of the jury, Voronwe. No one has challenged the idea that all appeals should be heard, and we have no one who can decide whether or not an appeal should be heard. I'm afraid this kind of clause will open a can of worms, so I guess I oppose its inclusion.

But I am adding it to the Appeals paragraph so that members can vote to include it if they agree with you that it is needed.

Jn

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IdylleSeethes
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Posted: Sat 14 May , 2005 6:36 pm
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Prim,

Yes, we can do anything. No, I don't have to like it.

Absent truly malicious intent by someone clever enough to carry it off, transaction logging protects the evidence and points to external sources of text and images. So long as the perpetrator doesn't control the external source, the evidence probably still exists. In some cases, the nature of the external site can make it obvious what might have appeared. So, I think it is simple to avoid most complications. However, for those situations for which no evidence exists, just testimony, I dislike rendering decisions.

There are ways to obtain evidence other than transaction logging. Anyone can do a screen capture and record what they see. The validity of this can be questioned, but I would be willing to accept even this as evidence to be considered by a jury.


I really don't like disagreeing with Prim and I've done it twice today. Maybe I'm just having a bad day.

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Primula_Baggins
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Posted: Sat 14 May , 2005 6:41 pm
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I don't see how a screencap is significantly better than testimony, Idylle. The time stamp can be fiddled with. The post itself can be faked offline and a screencap taken of that.

I'm inexperienced and gullible in these matters, and I thought of those two right off the bat.

I must be moving up in the world if I am able to say things you find worth disagreeing with. :D

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Jnyusa
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Posted: Sat 14 May , 2005 6:42 pm
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Voronwe: I edited your text and would like you to confirm that it still says the same thing.

• Sentence structure was changed to be consistent with other clauses.
• I was afraid too many people would not know what it means to "reweigh" evidence - I'm not sure I know myself
• the subsidiary clauses would not be interpretable by a jury, I don't think so anyway, so I tried to pare it down to its essence. Basically, they can decide the jury was wrong, right?

(It's in blue, under causes for appeal)

Idylle: I have to ask you to write the clause as you wish it to appear. I am at a loss as to how to incorporate this kind of evidentiary rule into the charter, and I am also afraid that it will encourage an atmosphere where people feel they have to spy on one another and collect evidence before they can go to an admin and say, "That poster used the N word."

Jn

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Voronwë_the_Faithful
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Jn, thank you. That's much better, and less legalese sounding. The one thing that I think might be a little confusing is the sentence "The appeals panel can not overturn evidence." it is clear to me what is meant by that, but if it is confusing to others, we may need to clarify that its the jury's ruling on evidence that can not be overturned.
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I suspect that 90% of our Hearings are going to be gray areas up to the discretion of the jury, Voronwe. No one has challenged the idea that all appeals should be heard, and we have no one who can decide whether or not an appeal should be heard. I'm afraid this kind of clause will open a can of worms, so I guess I oppose its inclusion.
I agree with you, Jn. Its the other 10% that I am concerned about. But if it is the will of the council not to include this provision, Voronwe will see it done. ;)


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IdylleSeethes
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Posted: Sat 14 May , 2005 7:34 pm
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Prim,

Those are the reasons I said its validity could be questioned. Illusion is a word I keep using for a reason.

Voronwe,

I know. I do get called into some cases, though, and as much as I know how easily what I present could have been fabricated, it has never been rejected. Usually, the cases go to a plea bargain as soon as I have provided my evidence. In the few situations where I could find no conclusive evidence, the cases were dropped, probably correctly. So it is my experience that there is some importance to having evidence.

Jnyusa,

Voronwe is more experienced in general area of evidence than I, so I am willing to drop the discussion, rather than go off into the weeds.

I very, very strongly suggest that we have transaction logging and that that be considered important enough to be required to be presented as the official record of what did occur. I don't know where that needs to be said. If you are interested in this kind of statement, I will provide it when it is appropriate. It will require some kind of protocol for retrieving the log from their keeper.

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Voronwë_the_Faithful
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Idylle, I agree with you in theory. It just the practical implementation of the kind of evidentiary requirements that you would like that I would question. You, however, are probably more knowledgable then I am in this area, or then anyone else. Would you be willing to be totally and permanently in charge of making sure that that the kind of electronic footprint that you would like to see exist actually does exist. That is about the only way I see it as practicle (and that would assume also that the membership would accept you as the Information Czar).

Going back to something that you said earlier:
Quote:
It seems that we are allowing the jury to accept any testimony and allow the jury to make decisions on what they believe, rather than what they know.
I have been reluctant to say this before now, because I know how much emphasis there has been on keeping things simple, but I do think there would be some value in having some kind of basic rules of testimonial evidence, that requires that only testimony regarding personal experience be admitted, and that hearsay evidence be excluded. I fear that that might be too complicated for some or most to accept, but Jn if you want me too I will go ahead and try to write something up.


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Primula_Baggins
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Posted: Sat 14 May , 2005 8:26 pm
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Idylle, we don't have transaction logs available to us—it is not an implemented feature on phpBB boards.

When we move and have more control, that is certainly among the capabilities we'll want to have. But until then, we have to work with what is available to us. Just about everyone knows more than me about this, but I do urge that we not set a standard so high that we cannot effectively meet it—if we do, we can't enforce our own rules and this charter becomes a joke.

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Voronwë_the_Faithful
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Posted: Sat 14 May , 2005 8:46 pm
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Needless to say, if we do have access to better evidence, we will use it. I don't think we need to explicitly state that a transaction log can be considered more reliable then a person's testimony. We will have to go with whatever evidence is available.


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Jnyusa
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Posted: Sat 14 May , 2005 9:24 pm
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Idylle, when you first mentioned this issue (in the other thread) Prim went to technical support to ask what capability we have. The answer was "none."

When we move to the other board, we will definitely implement something like this, and write an evidentiary rule into the Charter at that point.

I'm sorry, I don't know whether you had forgotten or whether you missed it, but Prim and I did check this out and determined it could not be done and posted that in the other thread. Otherwise I would have added the provision when you first suggested it.

Jn

p.s. I've gone ahead and put this discussion in the form of a draft ballot.

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Voronwë_the_Faithful
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I approve of the ballot, Jn. Another masterful piece of work. Shouldn't the thread title be changed from Discussion to Draft Ballot?


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