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As to prosecutorial behavior, perhaps jurors attach no probatory significance to prior crimes but priors are associated with the strength of the government's evidence, because of prosecutorial or police decisions and resource investments.
This hypothesis finds support in Sally Lloyd-Bostock's study of more than 200 mock trials, in which the acquittal rates for those defendants with known "similar" and "recent" priors--attributes to which jurors are thought to give special probatory weight--were virtually indistinguishable from those whose priors were wholly unknown (77.
If jurors did what the courts wanted them to do--that is, to give little or no probatory significance to presumed priors--and if they do puzzle out who does and does not have a record in making their choices, then the false acquittal rate could increase substantially.
As noted in the legal codes, a just and proper sentence had to be based on evidence, the circumstances of the crime, and the background of th e accused, information the escribano collected in the probatory phase of the case.
75) The potential for abuses clearly existed, since the magistrates, in accordance with their personal preferences and impulses, could have decided to issue sentences without undertaking the necessary probatory measures.
In Book 10 of the 1805 Prelude, vertiginous feelings of probatory and even epistemological uncertainty are repeatedly linked with instances of judicial and legislative subversions of trust.
The result is loss of faith in the probatory process itself; the mind unstapled is "let loose" in an indeterminate field.