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

Chapter 4: A Trial System in Trouble

CHAPTER FOUR A Trial System in Trouble Every Criminal Justice System Needs a Strong Trial System To be strong, every criminal justice system has to be built upon a trial system in which it has confidence. While it is naïve to think that a criminal justice system can cure societal problems such as a national drug problem, the breakdown of the family structure, pronounced economic disparities, or racial divisions among citizens, one that lacks a strong trial system can easily aggravate and exacerbate these problems. In important cases especially, citizens need to feel confident that the trials will determine guilt or innocence with a high degree of accuracy and that the punishments meted out are fair and just. This is not to suggest that all or even a majority of criminal cases have to go to trial. Most criminal prosecutions in the west involve relatively minor crimes—traffic offenses, petty theft, drug cases, and the like—where the evidence is overwhelming (or else the case would not have been prosecuted in the first place). Most defendants prefer not to contest the charges because there is no defense and they would just as soon get the matter behind them if possible. Every western country has evolved a way of handling such cases expeditiously so as to avoid the expense of a fullblown trial. Often the defendant will be offered a lighter sentence than he or she would be likely to receive after a full trial. Usu69 ally defendants are glad to accept such sentences in lieu of a full trial. But some categories of crimes test the strength of a country’s trial system: these are the homicides, the rape cases, the sexual abuse cases, the police beating cases, the serious robbery and assault cases, and so on. Some of these may turn out to be high profile cases in which a broad segment of the public relies on the system for a fair trial and a just result. But even if not high publicity cases, they are still important because the crime is serious and there are victims to consider as well. These cases demand prosecution if possible simply because the offender deserves to be convicted and punished proportionately to the crime committed. A strong criminal justice system needs a strong trial system for these sorts of cases. A strong trial system encourages victims to report crimes because they know that the case will be handled expeditiously and fairly. It also encourages witnesses to come forward and cooperate with the investigation for the same reasons. It even encourages suspects to be honest and candid about what they have done because they know that the truth will eventually be revealed at trial. A weak trial system does the opposite: it discourages victims from reporting crimes because they know that the system is skewed or haphazard and that the outcome of the trial may turn not on the evidence but on any number of other factors, such as who happens to be in the jury box. It becomes harder in such a system to encourage witnesses to come forward, and citizens become unwilling to make the sacrifices needed to serve. Instead of encouraging offenders to be honest and candid in dealing with the police, a weak trial system discourages such candor. Those who do cooperate are looked down upon and viewed as stupid by those who are more sophisticated about how the system really works and know how to play it for maximum advantage. A weak trial system emboldens those who have committed crime to hold out for an attractive plea bargain that guarantees them a senA Trial System in Trouble 70 tence lighter than they deserve. It also encourages defendants to “take a chance” on an acquittal at trial since the outcome of a trial is a matter of luck. Despite overwhelming evidence of guilt, it is always possible that the defendant might “walk” if the defense gets lucky. When this happens in important cases citizens may react with anger, protests, and even civil unrest or riots. Unfortunately, despite all the time and resources that have been lavished on our criminal justice system, the United States lacks a strong trial system. The public has come to realize this over the last several years. Despite the protests of a few obdurate trial lawyers who continue to wave the flag and insist that our trial system remains “the finest in...