legal-concepts jurisprudence
How can one utilize an &quot;objective observer&quot;, if one cannot be such?
<p>How can one utilize an &quot;objective observer&quot;, if one cannot be such?</p>
<p>When this &quot;objective observer&quot; is utilized. E.g.</p>
<blockquote>
<p>X is unlawful, if an objective observer would interpret it as such.</p>
</blockquote>
<p>like in</p>
<blockquote>
<p>For purposes of this rule, an objective observer is aware that implicit, institutional, and
unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors
in Washington State.</p>
</blockquote>
<p>source: <a href="https://www.courts.wa.gov/court_rules/?fa=court_rules.display&amp;group=ga&amp;ruleid=gagr37" rel="nofollow noreferrer">https://www.courts.wa.gov/court_rules/?fa=court_rules.display&amp;group=ga&amp;ruleid=gagr37</a></p>
<p>The particular problematics related to this are discussed in e.g.:</p>
<p><a href="https://www.californialawreview.org/print/what-to-do-about-batson/" rel="nofollow noreferrer">https://www.californialawreview.org/print/what-to-do-about-batson/</a></p>
<p>Or</p>
<p><a href="https://apnews.com/article/race-and-ethnicity-trials-juries-death-of-george-floyd-racial-injustice-495e7b36e5c1eee6eb2ff4ee35a21987" rel="nofollow noreferrer">https://apnews.com/article/race-and-ethnicity-trials-juries-death-of-george-floyd-racial-injustice-495e7b36e5c1eee6eb2ff4ee35a21987</a></p>
<p>where in particular they say:</p>
<blockquote>
<p>While the goal objectively is to seat an unbiased jury, both sides try to remove people who may view their case unfavorably.</p>
</blockquote>
<p>Thus questioning the practical feasibility of an objective observer.</p>
<p>While the concept is intuitive as &quot;refers to physically appearing&quot;, the idea of an objective observer thus seems faulty to me. I would perhaps call it &quot;non- subject dependent circumstances&quot;. But then the question could in some cases, does such exist? A challenge should be e.g. the difficulty/impossibility of displaying that someone is biased, because there's no objective instrument for it. And if it's a human judging it, then it cannot be unbiased.</p>
<p>For example, the particular wording in relation to discrimination in the Batson example there seems like it suggests that &quot;an objective observer would treat people equally&quot; or that &quot;it is unfair (to treat people unequally)&quot;, which are biases themselves. Thus possibly lending to the idea that &quot;objective observer&quot; may be utilized for &quot;our bias, which we claim objective&quot;.</p>
<hr />
<p>Related:</p>
<p>Machine-learning jury</p>

<h2 id="the-objective-observer-is-not-a-real-person-r8l7">The objective observer is not a <a href="https://en.m.wikipedia.org/wiki/Man_on_the_Clapham_omnibus" rel="noreferrer">real person</a></h2>
<p>She is one of a number of imaginary people who are used in law to inform judges and jurors how they should intellectually engage with a legal issue. We may not know or be a reasonable person or an objective observer but we know the characteristics they would have if they existed. The legal usage is not to prove a person is or isn’t an objective observer, it’s to establish the standard they would apply if they were.</p>
<p>It’s worth quoting Lord Reed from <em>Healthcare at Home Limited v. The Common Services Agency</em> [2014] UKSC 49 at <a href="https://en.m.wikipedia.org/wiki/Man_on_the_Clapham_omnibus" rel="noreferrer">1</a>-[4]:</p>
<blockquote>
<ol>
<li><p>The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and <strong>the fair-minded and informed observer</strong>, all of whom have had season tickets for many years.</p>
</li>
<li><p>The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are <a href="https://en.m.wikipedia.org/wiki/Legal_fiction" rel="noreferrer">legal fictions</a>. <strong>They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person</strong>, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias...</p>
</li>
<li><p>It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would be misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, to establish how the reasonable man would have acted or what he would have foreseen. <strong>Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point.</strong> <strong>The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court.</strong> The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.</p>
</li>
<li><p>In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer.</p>
</li>
</ol>
</blockquote>
<p>The particular objective observer required in Washington jury selection has these characteristics:</p>
<blockquote>
<p>… an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.</p>
</blockquote>
<p>It doesn’t matter that you or I may not hold that view, the hypothetical objective observer <strong>does</strong> an therefore:</p>
<blockquote>
<p>If the court determines that an objective observer could view race or ethnicity as a
factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.</p>
</blockquote>
<p>So, when the judge considers the challenge they have to view it in the light “that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors”  whether they believe that or not. If a person who held that view “could” view the challenge as factoring in race or ethnicity then it must be denied.</p>
<p>This long-standing legal tradition is founded in human psychology: we’re actually really good at imagining what other people will do if we make the effort. The hypothetical person is an idealised individual who doesn’t have to worry about money, or children or what the neighbours think. By making an effort to think like they would diverse real humans can actually produce amazingly consistent responses.</p>

<p>The key word in your quoted text is &quot;<strong>if</strong>&quot; meaning that such a person need not be present at the relevant time.</p>
<p>Rather, a judge or jury using, for example, their life experiences, common sense and all the evidence before them to determine objectively what a reasonable person would do in the same or similar circumstances. A process some refer to as <a href="https://en.wikipedia.org/wiki/Man_on_the_Clapham_omnibus" rel="nofollow noreferrer">The Man on the Clapham Omnibus</a>.</p>
<p><sub><strong>NB This answer is based on the question's first incarnation (viewable in the edit history by those with enough rep) - see DaleM's post for an answer following the revisions</strong></sub></p>
