Trials Without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It

Chapter 11: Starting Down the Path to Reform

CHAPTER ELEVEN Starting Down the Path to Reform For the last decade the American public has been told over and over by bar leaders that our trial system is basically sound and that whatever problems have emerged in recent trials they are isolated occurrences that can be attributed largely to human error. This book has showed readers that the problems in the system are structural . They are not going to go away and, indeed, they are likely to get worse over time as citizens become more cynical about the system . In this chapter, I want to review some of the structural problems in the system and discuss the issues that must be faced if we are to reform it. The System’s Overemphasis on Winning and Its Failure to Place a Priority on Truth A strong trial system has to place a high priority on truth and work hard to achieve that goal. Our trial system does not do this and, as a result, our trials lack focus. Without a clear goal to work toward, trial judges cling tightly to procedure almost as an end in itself because they have nothing else to guide them and are unsure in what direction the trial should go. In this situation a lawyer who sees adversarial advantage in a confusing, prolonged, and bitterly contentious trial finds it easy to create such a trial. A trial, be it more or less adversarial, is simply a way of testing the evidence that has been gathered during the investigation in 221 order to determine whether or not the defendant is guilty of the crime. Trial systems can vary considerably in the way they carry out this task. But the goal of the system has to be the same: an accurate and reliable evaluation of the evidence in order to determine the defendant ’s guilt. The System’s Preference for Weak Trial Judges One structural element that needs to be reconsidered is the role expected of trial judges. Our system is confused about what it wants trial judges to be doing at trial, in part because it is unsure about what trials are supposed to accomplish. American judges are poorly prepared to control trials and are more passive and tentative than are judges in other systems. As I have shown, one of the reasons for this is a disastrous appellate system that insists on reviewing all possible errors that occurred at trial and that orders new trials for what would be considered minor errors in other legal systems. Yet this appellate system does not review the most important issue of all, namely, the accuracy of the jury’s verdict. In the end, our trial system ends up emphasizing what our appellate system emphasizes —procedure above all else, not substantive accuracy. If we want judges to exercise more control over trials, they need to be given more authority to do so and they need to prepare for trial differently . The System’s Failure to Distinguish the Role of the Police from the Role of the Prosecutor We need to rethink the adversary alignment that seems so natural and comfortable to American lawyers and judges, whereby the police and the prosecutor—“the state”—are conceived of as working together “against” the suspect (who later becomes the defendant) from the time the crime has been committed. A criminal justice sysStarting Down the Path to Reform 222 tem should not encourage the police to see themselves as being “on the same side” as the prosecutor during the investigation. Instead, the police should be encouraged to carry out thorough and complete investigations and to see their role as independent from the eventual prosecution of the case. England and the United States differ noticeably from the other trial systems I have described in tending to see the police as being “on the same side” as the prosecutor. Both countries appear to be paying a price for blurring the roles of the police and the prosecutor into a single joint identity. Whether a system uses trial procedures that are more or less adversarial, the investigation of a crime should not be structured as an adversarial undertaking. The System’s Failure to Set Limits on Advocacy and Its Willingness to Cede Complete Control over the Evidence to Advocates No other system permits the kind of behavior from advocates that is not only tolerated in American courtrooms, but considered completely normal and ethical. The...