Trials Without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It available in Hardcover, Paperback, eBook
Trials Without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It
- ISBN-10:
- 0814766501
- ISBN-13:
- 9780814766507
- Pub. Date:
- 06/01/2000
- Publisher:
- New York University Press
- ISBN-10:
- 0814766501
- ISBN-13:
- 9780814766507
- Pub. Date:
- 06/01/2000
- Publisher:
- New York University Press
Trials Without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It
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$30.00Overview
Reginald Denny. O. J. Simpson. Colin Ferguson. Louise Woodward: all names that have cast a spotlight on the deficiencies of the American system of criminal justice. Yet, in the wake of each trial that exposes shocking behavior by trial participants or results in counterintuitive rulings—often with perverse results—the American public is reassured by the trial bar that the case is not "typical" and that our trial system remains the best in the world.
William T. Pizzi here argues that what the public perceives is in fact exactly what the United States has: a trial system that places far too much emphasis on winning and not nearly enough on truth, one in which the abilities of a lawyer or the composition of a jury may be far more important to the outcome of a case than any evidence.
How has a system on which Americans have lavished enormous amounts of energy, time, and money been allowed to degenerate into one so profoundly flawed?
Acting as an informal tour guide, and bringing to bear his experiences as both insider and outsider, prosecutor and academic, Pizzi here exposes the structural faultlines of our trial system and its paralyzing obsession with procedure, specifically the ways in which lawyers are permitted to dominate trials, the system's preference for weak judges, and the absurdities of plea bargaining. By comparing and contrasting the U.S. system with that of a host of other countries, Trials Without Truth provides a clear-headed, wide-ranging critique of what ails the criminal justice system—and a prescription for how it can be fixed.
Product Details
| ISBN-13: | 9780814766507 |
|---|---|
| Publisher: | New York University Press |
| Publication date: | 06/01/2000 |
| Edition description: | Revised ed. |
| Pages: | 257 |
| Product dimensions: | 6.00(w) x 9.00(h) x 6.00(d) |
About the Author
Read an Excerpt
Chapter One
Soccer, Football, and Trial Systems
Understanding Ourselves
In a book that attacks our criminal trial system, readers rightly expect that the author will discuss topics such as juries, the jury selection process, the appalling behavior of trial lawyers, and a trial system that emphasizes winning much more than truth. Yet this introductory chapter is largely about sports. One reason for approaching our trial system initially through the medium of sports is that we cannot begin to understand our criminal justice system until we understand ourselves and our culture better. We—lawyers and nonlawyers alike—tend to think of ourselves as a pragmatic, "no nonsense" people who abhor bureaucracy and "red tape," and who like to keep things simple and informal, especially when it means getting the job done efficiently. Perhaps this self-image is part of the reason the public is so frustrated when it looks at the American criminal justice system and especially at our trial system. Not only is the reliability of the system questionable, but it is also incredibly expensive as lawyers and judges in important criminal cases eat up hours and sometimes even days of what should be trial time in debate over technical evidentiary and procedural issues.
But trial systems do not evolve independently of the social and political values of the countries in which they exist. One objective of this chapter is to force us to face up to the fact that our self-image is not accurate in important respects. We have many strengths of character but we alsohave some flaws that we need to recognize and acknowledge. One of them is that we love procedure. Or, to be more blunt, we are procedure addicts. To convince readers of this fact, I intend to spend much of this chapter in the world of sport, comparing two types of professional football, namely the American version that culminates in the Super Bowl each January and the type of football passionately followed by Europeans and much of the rest of the world, which Americans call "soccer" to distinguish it from what we consider to be "real football." (Being an American who continues to love football and only began to appreciate professional soccer during World Cup 1990, I will use the American terms "football" and "soccer" to refer to the two sports.) I will use the two sports to show that Americans have a "procedure problem," to put it euphemistically.
Another objective of this chapter is to use the two sports and the strong parallels they have to different trial traditions to provide a general overview of what I will refer to in this book as "European" or "continental" trial systems, meaning by these terms the countries on the continent, including the Scandinavian countries, but excluding England, Scotland, and Ireland. (In chapter 5 I will expand on this comparison between our trial system and those on the continent.)
A final reason for beginning this book with a somewhat humorous and tongue-in-cheek look at ourselves and our favorite sport is that Americans badly need to let down their guard and take a look at themselves with a sense of humor, a commodity that is all too often lacking in public discussion on controversial issues these days. In fact, I am tempted to say that we have no public discussion of important issues having to do with the American criminal justice system today; instead we shout at each other and too often prefer to substitute an attack on the motives of those with whom we disagree for argument about the issues. Suggest that we ought to cut back on the exclusionary rule (which requires the exclusion of evidence unconstitutionally seized by police) and one is likely to be accused of tolerating police violence such as we saw in the Rodney King case or the abuse of minorities. Suggest that the privilege against self-incrimination is too broad and the orderly questioning of suspects should be permitted and encouraged and one is likely to be dismissed as someone who is proud of the fact that we have long passed the one million mark for those in prison or that a very high percentage of young blacks are in prison or in some form of probationary status.
It is my hope that what I have to say about the criminal justice system in the remainder of this book, admittedly much of it controversial and maybe even radical to some, will be better received if we all—lawyers and nonlawyers alike—begin by looking at ourselves with a sense of humor.
Our Obsession with Rules
It may seem bizarre to suggest that the world of sport can teach us about different trial systems. But, on reflection, it should not be surprising that elements of a country's popular culture, such as the sport it loves above all others, might reflect and thus help to explain the legal culture of that country as well. Games of sport are defined by rules the infraction of which must be punished by a referee or a judge. But "rules," "referees," "violations of the rules," and so on are equally part of the vocabulary we use to discuss trials and trial procedures. To the extent that soccer differs conceptually from football in its perceived need for rules, in its view of the way those rules should be enforced, and in terms of what the game emphasizes on the playing field, it should not surprise us to find that some of these basic conceptual differences exist in the respective trial systems as well.
The differences between the two sports begin with the rules that are viewed as necessary to govern play. In soccer, there are comparatively few rules and most are rather easy to express. A player can't intentionally trip someone or push someone off the ball or engage in dangerous play. The only complicated rule is that governing offsides but even that is easily expressed, even if it is sometimes difficult to determine in a game situation.
By contrast, American football has many, often extremely complicated, rules. Consider just a few: certain players on the offensive team may move before the snap of the ball but only in certain directions, others may not even flinch; certain offensive players may be blocked or impeded a certain way, but others may be blocked only if within a specified distance from the line of scrimmage; offensive tackles usually may not receive a forward pass, but sometimes they may be eligible to do so; a quarterback may not intentionally throw the ball to a vacant part of the field to avoid being tackled for a loss, but in certain areas on the field he may do so and, at certain points in the game, he is even permitted to create an incomplete pass by "spiking" the ball at his feet, though in other situations this is strictly forbidden. Even the running of the clock is governed by its own complex set of rules that stop the clock in certain situations but permit it to run in others.
Another indication of the different emphasis that the two sports place on rules and their enforcement is the difference in the number of officials thought necessary to enforce the rules. Although a soccer field is substantially bigger than a football field and, in addition, play tends to be much more spread out around the entire field and to move quickly over great distances up and down it, there is only one referee on the field. This referee has sole responsibility for controlling play among the players on the field. The only concession to the size of field are two assistant referees who follow the play from the sidelines and help the referee with decisions at the perimeters of play for which the referee may not be well positioned. They indicate by raising a flag when the ball has gone over the sideline, when players are offside, and when fouls are committed. But only the referee has a whistle and only the referee can stop play.
A professional football game, by contrast, requires many officials and many whistles on the field. There are between six and eight officials on the field, the better to observe play at all times from different positions and different angles. Any of them can stop play at any time for perceived infractions of the game's extraordinarily complex rules. In addition, there is a whole category of lesser officials off the field who are there to assist the officials on the field. They do so by keeping track of the game clock so that it can be started and stopped according to the rules, keeping track of the line of scrimmage, keeping track of a set of chains along the sideline that enable the referees on the field to decide if a team is entitled to a first down, and so on.
Part of the tremendous difference between the numbers of rules that govern soccer and football and the numbers of officials thought necessary to enforce those rules stems from the very different pace thought desirable for the two games. In soccer, there is a strong preference for not interrupting the flow of the game if possible and for letting the players play. Consequently, minor infractions of the rules are ignored and the referee is in the background as much as possible. Those who watched World Cup 1998 may recall the familiar "play on" signal the referee gave the players in cases of minor infractions. With the palms of both hands extended together below the waist sweeping up gently he seemed to say to the complaining player, "Come on, come on! Get up and get going. That was hardly important."
The strong reluctance to interrupt the game of soccer is evident in other subtle ways. For example, when a player is fouled but his team retains a strong offensive position nonetheless the rules state that the foul should not be called so that the offensive team can maintain its advantage. Moreover, a player in an offside position does not incur a penalty for his team if the offending player did not influence the play. Thus a goal that is scored on an offensive thrust by a team one of whose players was clearly in an offside position is not nullified if the player stayed at the perimeter of the action and did not influence the play that led to the goal.
In football, the penalty takes priority and the play must be run again in many situations where there would be no similar "doover" in soccer. For example, if an offensive player such as the left guard moves just before the snap of the ball but the play is run and the running back fumbles the ball with the defense recovering the ball, the play is "nullified" by the penalty before it began. Or, as officials like to explain it, "there was no play." Thus there could be no fumble and no fumble recovery, even though thousands of people in the stands and hundreds of thousands of television viewers saw the play, saw the fumble, and saw the fumble recovery.
The idea of not calling a penalty or not strictly enforcing the rules so as not to interrupt the flow of the game seems almost offensive in football. If a wide receiver, even if improperly held or obstructed by the defense, still manages to make a catch and a big gain for his team, the penalty must still be called and discussed with the offensive team even if it is clear to all concerned that it will certainly be declined. If one team is behind by twenty points and has just failed to make a first down so that the ball now goes over to the other team with the clock stopped and ten seconds left in the game, the offensive team must come on the field and go through the ritual of hiking the ball to the quarterback who then genuflects to one knee to signal he is down. Only then can the game be permitted to end. How many of us who are diehard football fans have not seen a referee struggling to clear the field with a few seconds left on the clock when the two teams are shaking hands in acknowledgment that the game is over and one side has clearly won? Rules exist to be enforced and it is not the job of the officials to think beyond that.
Because football is governed by a much more complicated set of rules that need to be enforced by a comparatively large "officiating crew," the pace of the game is completely different from soccer. The game is frequently interrupted by the fluttering of little yellow flags, often followed by conclaves of officials trying to reach agreement on the appropriate ruling in this particular situation. Sometimes they then decide that there was no violation of the rules after all. Color commentators often praise this as "a good 'no call'" by the officials despite the fact that a penalty was called and the game was stopped for discussion of the call.
Our Obsession with Rulings and Our Insistence
on Exact Precision in Rulings That Can
Never Be Precise
A more complicated set of rules and a larger number of officials naturally results in many more interruptions and rulings during a game. In addition, football places particular stress on technical precision in making those rulings and in marking off penalty assessments during the game. If a penalty is ten yards, it is very important that it be ten yards, not nine yards or even nine and a half yards. To assist in that determination, the field is marked with horizontal stripes across it starting at the goal line and then continuing every five yards to the opposite goal line. But even this is not enough to yield the desired precision in marking penalties and in locating the ball for the start of play. So, in addition to these lines, the field is marked off with one-yard chalk marks at four locations. Each of the two sidelines are marked with "hash marks," as the commentators call them. And there are two more sets of hash marks ten yards in from each of the two sidelines. There are thus four sets of "hash marks" to assist officials in deciding if a team has made a first down.
But even these hash marks are often not considered sufficient for the sort of precise ruling thought desirable in football. There are two sets of chains, one at each side of the field, each of them exactly ten yards in length. At various points in the game one of the two chains will be brought on to the field to make sure the ruling is precisely correct. Sometimes when a team is found to be a few inches short of getting a first down, the official making that determination will keep his finger on the chain while other officials carry the ends of the chain over to the nearest set of hash marks and again stretch out the chain so that the ball can thus be placed on the hash marks precisely where it needs to be for the next play to ensue.
Given that the initial spotting of the ball following a play is often somewhat arbitrary as a runner fights for extra inches, or that the ball has to be extricated from beneath a pile of players grabbing for possession of it, one might think the officials would be relaxed about the use of the chains and simply use the set of chains closer at hand if they have to be brought onto the field. But the chains must yield the one true measurement and not just one that is "very close." So one of the sets of chains is designated the "unofficial set" while the other is the "official set." Thus if the measurement must be taken five yards in from the sideline with the unofficial set of chains, the official set of chains must be carried all the way across the field to the ball and then stretched out to make sure that the decision whether or not to award a first down is precisely correct according to that set.
In soccer, by contrast, it is thought preferable to keep the game moving and to that end there is much less emphasis on technical precision in rulings. If a foul is whistled, there is often hardly a break in the action as the ball is quickly placed on the turf, only very roughly where the infraction occurred, and the game immediately resumes. If a ball goes out of play, the throw-in takes place in the general area where it went out of bounds.
One may protest that soccer doesn't need the sort of precision that would be involved in marking the exact place where the ball should be put into play because it won't make any difference, given the size of the field and the nature of the game, whether the ball is spotted at the exact spot where the foul took place or a yard or two away from that spot. But there are times in soccer when a precise distance is specified in the rules and the distance may be important. One example is a free kick very close to an opponent's goal. The rules state that at a free kick following a foul the opposing players must be at least ten yards (9.15 meters) back from the ball. The closer the players are to the ball when they form their wall to try to keep the kicker from scoring, the less angle the kicker has and the more difficult it will be to score. Yet the ten-yard setback for the defending players is determined only approximately (and very quickly) by the referee without the benefit of chains or field markings or even without the referee taking the time to pace off the required distance.
Obviously, the nature of the games is different, with football emphasizing movement in ten-yard intervals up and down the field. This gives rise to a constant need for measurement that doesn't exist in soccer. But the games remain similar in the sense that in both there are bound to be difficult decisions for the official or officials, some of which may even affect the outcome: Was the ball in the goal (or over the goal line)? Did the player fumble before or after his knee touched the ground? Did the player's hand deflect the ball into the goal or not? Did the foul take place inside or outside the penalty box? The critical difference is that football is completely unselfconscious about the amount of effort and time it is willing to devote to trying to make what it believes will be perfect decisions on issues such as these.
This emphasis on false precision in marking out penalties and the willingness to stop the flow of the game in order to discuss and rule on possible penalties in the American game results in contests that are of exact "official" length but of rather uncertain actual duration. Thirty minutes of precisely kept "playing time" in football often consumes at least an hour and a half, and maybe more, of real time. By contrast, in soccer forty-five minutes of soccer is basically forty-five minutes of soccer, with rarely more than two or three additional minutes of "injury time" (when the game is stopped to permit an injured player to be treated) added on.
Several years ago the length of the games became a concern to National Football League officials. Their "solution" to the problem is itself a fascinating commentary on the American mentality when it comes to procedure. The most logical solution would have been the simplest as well: instead of stopping the game clock at various points during the game, such as when a player runs out of bounds or when there is an incomplete pass, the clock should continue to run. In this respect football would have mirrored soccer where the game clock continues to run even when a ball is kicked out of bounds or into the stands. But instead of the obvious solution the NFL came up with a far more elaborate procedural apparatus ironically aimed at speeding up play on the field. They added a second clock—a "play clock"—which counts off the seconds between plays. The offensive team is now required to start the next play within a set number of seconds from the end of the preceding play. Of course, the solution quickly became part of the problem because whatever gains were made were largely undercut by the difficulties officials on the field had communicating with the official off the field ("Will the time-keeper please put ten more seconds on the play clock?") as well as the stoppage necessary to mark off additional penalties when the offensive team was only one second late in getting off the ensuing play. In professional football, where passing is emphasized and hence the game clock is frequently stopped between plays, the game is of uncertain duration. But it is usually close to three hours for sixty minutes of football.
The conviction that adjudicative perfection is desirable and attainable if only enough time and care are lavished on rulings remains strong in the United States. As in our legal system, so in football there is always the temptation to add just a little more procedure in the quest for such perfection. For a couple of seasons the National Football League employed an elaborate system of appellate review whereby the officials' ruling on the field could be appealed to a completely different set of officials who sat in a box perched high above the field where they reviewed videotapes of the play from two or three different angles in order to decide whether to affirm or reverse the decision on the field. Often, the head of the officiating crew on the field would be called to the sideline to talk on the telephone with the reviewing officials and he would then scurry back to the center of the field to announce the reviewing body's decision. Meanwhile, of course, the game was stopped for several minutes with the television commentators filling air time with an explanation of the standard of review and how it might be applied to this particular situation.
The Insistence on False Precision in
Our Trial System
The sharp contrasts that exist between soccer and football have strong parallels when one compares European and American criminal trials. At European criminal trials, the judges—usually a mixed panel of professional judges and ordinary citizens—want to hear and evaluate all the relevant evidence; to that end, there are few rules of evidence and other rules aimed at excluding relevant information. They function more as guidelines than as strict rules. Witnesses are granted considerable latitude to give their testimony in their own words and interruptions in the flow of testimony are discouraged. Even if a piece of evidence is what an American lawyer would seek to exclude as "hearsay," there is likely to be no objection: the judges want to hear all the evidence and they don't want to be deflected from their task by having to deal with technical violations unless the issue is truly important. A day of trial testimony at a European trial is pretty much a day of hearing the testimony of witnesses and listening to them answer questions.
By contrast, the rules that govern American criminal trials are extremely complex and they must be enforced to the hilt. Objections to what a question seeks to elicit from a witness are common and even objections to the way the question is expressed are frequent. Because of the technical nature of the subject—there are in the United States multivolume treatises devoted to the subject of evidence law—a judge may not understand the thrust of the objection or may need more time to hear the argument from the lawyers. This frequently gives rise to huddled discussions, called "sidebar conferences," between the lawyers and the judge at the front of the courtroom near the judge's bench. Sometimes these sidebar discussions can be quite animated, leaving the jury, the witness, and spectators, who cannot hear the discussions, puzzled as to what is going on and why. Some of the objections may be considered so important that the judge orders the jury out of the courtroom so that fine legal distinctions can be more fully argued and analyzed. Sometimes there will even be a hearing within the trial as the judge previews the proposed testimony from the witness to see if all or parts of the testimony are appropriate for the jury's hearing. A day of trial testimony at an important trial in an American courtroom will often entail lots of legal arguments and subtle rulings, but relatively little testimony from the witnesses when compared to a similar trial in Europe.
Of course, it is not always possible for lawyers to make objections in time to stop the witness from answering a certain question. If an objection to the question should have been sustained, our trial system has the equivalent of the "no play" ruling in a football game. The judge will announce in solemn terms that the answer will be "struck from the record" (though it remains in the trial transcript) and the jury will be ordered to disregard it.
The obsession with adjudicative perfection in our criminal justice system is worse than it is in football because there is no time clock and there is always the excuse that "this is not a game, it is a trial and someone may be convicted." This justifies any additional expense so that the system is free to spend as much time as it wishes in trying to come up with exactly the correct ruling. The flow of the trial is interrupted and even its purpose is forgotten as judges struggle to make perfect rulings, becoming little referees concerned only with rules and rulings. While other trial systems understand the important lesson that there is no ten-yard marker to enable a judge to determine precisely and correctly for all time what is "relevant," "prejudicial," or "reasonable," the American legal system completely fails to understand this. It fails to acknowledge that it is trying to do something that cannot be done with precision, that reasonable people will always differ on the application of these terms to individual situations, and that it is better in such situations to rule quickly and move on without interrupting the trial. That is not the American approach to football and it is definitely not our approach to trials.
The addition of a second clock to the game of football in an effort to "speed up the game" when there are many simpler and more obvious ways to solve the problem has numerous parallels in our system of criminal trials. Everyone I know in our criminal justice system—judges, prosecutors, and even hard-bitten defense attorneys—concedes that it is way too complicated and needs to be made simpler. Yet they are constantly tempted and usually cannot resist adding new procedures and new hearings to an already overburdened system even in the face of a crying need for more efficiency. A nice example is jury selection. Lots of countries—England, for example—have basically no jury selection process. The jurors are put into the jury box, the judge describes the case and the witnesses, and that is pretty much it. The trial begins without the lawyers questioning the jurors and without any challenges to the jurors. But in the last ten years, despite everyone's recognition that trials are too complicated and too expensive, we have gone in the opposite direction in jury selection: adding subtle legal issues to jury selection which require delicate inquiry and rulings by the trial judge as the prosecutor and the defense attorney, occasionally advised by jury consultants in big cases, each proceed to kick people they don't like off the jury. The obvious solution would be to limit jury selection. But we have a weakness: we are procedure junkies and always prefer to add more procedure.
The Differing Relationships between Players
and Coaches in the Two Sports
Another striking difference between football and soccer is the very different relationship that exists between coaches and players during the actual game. In soccer, no coaching is permitted during the game. No coach prowls the sidelines to shout signals or relay specific advice; the coach is not permitted near the playing field and instead usually sits quietly on the bench. At professional soccer games in Italy I have noticed that the coaches seem to pass the time chain smoking to relieve the tension, only occasionally glancing at the field and then rolling their eyes with a look of pain at developments they can't do anything to rectify. The only decision a professional soccer coach has to make during the game is whether to make a substitution. But since only three substitutions are permitted during the entire game even that role in the game is extremely limited compared to football.
The very secondary role that coaches play during soccer games contrasts sharply with the role of American coaches during their game. Football coaches are much more involved in the play of the game. Perhaps a more accurate way of describing the relationship of the coach to the players in professional football is to say that the line between players and coaches is blurred because the coach and his staff really dictate the play of the game. Typically, they decide what every single offensive play will be. In addition, on the other side of the field, defensive formations are also determined by the coaches, not the players. Because the pace of the game is more leisurely than soccer and there are so many interruptions, all the major strategic decisions—whether to "go for it" on fourth down, whether to punt or try a field goal, or whether "to go for two" (points) following a touchdown—are made by the coaches, not the players.
At one time, it was the custom to send plays to the quarterback by whispering the play to an offensive player and substituting that player into the game. This player would in turn whisper the play to the quarterback who would then tell the other players in the huddle what the next play would be. Although there are unlimited substitutions in a football game, relaying plays from the coach to the quarterback through another player was thought too cumbersome. So football turned to technology to take the coach directly onto the center of the field. A small receiver was placed in the helmet of the quarterback so that the coach could speak to him directly through a transmitter and give him precise directions for the next play.
In contrast to soccer which wants the players to play on their own and tries to accomplish that by forbidding sideline coaching, there is constant coaching by a plethora of coaches throughout a professional football game. This is made much easier both by the constant breaks in action between plays and by the unlimited substitutions that permit coaches to sit with their offensive or defensive teams to go over what the players should do when they are reinserted into the game. Sometimes coaches can be seen on the sidelines drawing up formations for the players or reviewing with the players Polaroid pictures taken moments earlier by team personnel high up in the stadium and sent down to the sidelines showing different opposing formations.
During the game, players are expected to carry out the plays that have been designed by the coaches and that the players have been drilled in advance to execute with precision. If the coaches have done their jobs correctly, it is hoped that the players will have the answer to any defensive alignment they will face during the game. Of course, not all plays during a football game work the way they were designed, and sometimes the players must improvise. But while such improvisation can be important, the pejorative way those plays are described—they are "broken plays" and those who execute them are "scramblers"—makes it clear that they are viewed as exceptional situations. There have been excellent NFL quarterbacks who couldn't scramble at all.
Soccer is fundamentally different in concept in that improvisation and spontaneity are considered the heart of the game. (In this regard, soccer is much more like basketball, a game that not coincidentally is extremely popular in Europe, while football has been slow to catch on.) While there are different offensive and defensive alignments that teams use and there can be set plays on corner kicks or throw-ins, the size of the field and the fluidity of the game make for a game that places great emphasis on spontaneity and improvisation. There is no such thing as a "broken play" in soccer because it is understood that that sort of improvisation will occur throughout the game. With no time outs and only a couple of substitutions, teams shift quickly from offense to defense and back again, and players are expected to exploit spontaneously the fluid possibilities of whatever situation presents itself.
The Roles of Lawyers at Trial and Their
Relationship to Witnesses at European
and American Trials
Just as American football coaches are much more involved in every phase of the game itself—play calling, substitution decisions, deciding whether or not to try a field goal—the same is true of lawyers at American trials. Because the American trial system is so heavily proceduralized, only someone trained in the law can make the kinds of sophisticated judgments about tactics that the system calls for and fully appreciate the legal issues that arise with considerable frequency during the pretrial and trial stages of an important criminal case. While, in theory, we may think of the witnesses as the "players" at an American trial because the outcome of the case should ultimately depend on the strength of the evidence, in fact the line between players and coaches is very difficult to draw in the American trial system. The system places such heavy emphasis on lawyering skills that it seems to be understood and accepted that an excellent lawyer can affect the outcome of a case even when the evidence supporting that lawyer's side of the case is weak. Lawyers and judges commenting on high publicity cases often tell us with perfect hindsight that this or that lawyer "blew it," the plain implication being that someone as brilliant as themselves would have prevailed on the same evidence. That there is anything amiss in making so much turn on the quality of one's lawyer rather than the evidence does not occur to them.
The line between players and coaches in American trials is further blurred by the heavy emphasis the system places on the careful pretrial preparation of witnesses by the lawyer calling that witness. In any important criminal case, the testimony of the prosecution and defense witnesses will have been carefully rehearsed by the respective lawyers. Lawyers shape the testimony for maximum effect on the jury and try to prepare the witnesses to withstand, and perhaps even counter, the cross-examination of the other side. If the witness is a particularly important one, this preparation may entail bringing in another lawyer to put him or her through a mock cross-examination. The preparation in major civil cases is often even more extensive, such cases being "pretried" in front of a group of mock jurors. In short, we have built a system so complicated that lawyers and judges dread spontaneity from witnesses, and discourage it in all kinds of ways.
In Europe trials are conceptualized very differently. While lawyers are important in any trial system, continental lawyers have far less influence on what occurs in their trials than do American lawyers on theirs. This difference rests in part on the fact that Europeans make a different set of assumptions as to what should take place at trial. Far from wanting witnesses who are prepared and controlled by the lawyers, continental trial systems start from the premise that witnesses should always be permitted to testify in their own words and in their own way about the events in question without being influenced in their testimony by others. To that end, European trial systems place a heavy emphasis on spontaneity, and not only discourage but consider highly improper the sort of pretrial preparation and rehearsals of witness testimony by lawyers that takes place routinely in the United States. Rather than testifying according to a rehearsed set of questions and answers, in Europe witnesses have the opportunity to testify about the events in question in their own words and at their own pace before questioning from the judges and lawyers takes place. This means, of course, that a witness may allow some things to slip out that are not relevant to the issue in question, or that may even be somewhat prejudicial; but Europeans accept those risks in order to permit witnesses to testify candidly and completely.
Given the fact that a European trial differs sharply in concept from an American one, it is hardly surprising that European lawyers are assigned a more limited role in the proceedings than their American counterparts. Because European trial systems are less proceduralized and because spontaneity is desired, lawyers do not need to spend days or weeks briefing legal issues and preparing witnesses in advance of trial. They do not have tight control over what occurs at trial and their role at trial is de-emphasized, unlike American lawyers who are permitted to dominate the courtroom.
Some of this difference between the two systems can be seen in the physical movements of lawyers around the courtroom, which again has parallels with the sports of football and soccer. While American lawyers have considerable freedom to move around the courtroom, sometimes moving over to the area in front of the jury box to question a witness or make an opening or closing statement, or sometimes approaching the bench to argue a point of law, European lawyers are expected to stay in their seats, usually located at the sides of the courtroom. They ask questions from that location and they make final arguments from there as well. Like European soccer coaches, they must remain well back, at the periphery of the proceedings.
Conclusion
Our American trial system reflects many of the cultural values encoded in the rules and traditions of professional football: the worship of proceduralism, the attempt to rationalize every aspect of decision making, the distrust of spontaneous action, the heavy preference for tight control over the participants, and, above all, the daunting complexity of the rules such a system requires. Today trials in the United States are prepared for, officiated, and even reported on much like actual football games. Television, in particular, uses the same techniques for trials as it does for slow-moving football games, including video replays, color commentators, sideline reporters who prowl the corridors of the courthouse, and plenty of Monday morning quarterbacking.
But the analogy between sports and trial systems breaks down at the objectives of the two systems. A trial system does not exist for the purpose of entertaining the public or showcasing the skills of its legal players. It must strive to achieve and keep in balance much more difficult and important objectives. No trial system is strong and deserving of public respect (1) if it cannot be trusted to acquit the innocent and convict the guilty with a high degree of reliability; (2) if it fails to treat those who come in contact with the system—including victims and witnesses as well as suspects and defendants—with dignity and respect; and (3) if it fails to make wise use of limited judicial resources.
In this book, I question how well our criminal trial system is meeting any of these three objectives, especially the first. We have developed a criminal trial system that is entertaining and that places tremendous emphasis on winning and losing. But the system badly underemphasizes truth. In the long run a trial system that cannot be relied upon to find the truth with a high degree of reliability ends up hurting the vast majority of defendants just as much as it does victims and the general public.
Table of Contents
| Acknowledgments | ix |
| Introduction | 1 |
| 1. Soccer, Football, and Trial Systems | 5 |
| 2. Technicalities and Truth: The Exclusionary Rule | 25 |
| 3. Truth and the Amount of Evidence Available at Trial | 46 |
| 4. A Trial System in Trouble | 69 |
| 5 | Discovering Who We Are: A Look at Four Different Trial |
| Systems | 89 |
| 6. Criminal Trials in the United States: Trials without Truth | 117 |
| 7. Trials without Truth: Weak Trial Judges | 140 |
| 8. The Supreme Court: An Institutional Failure | 154 |
| 9. A Weak Trial System: Who Benefits? | 183 |
| 10. Juries: The Loss of Public Confidence | 200 |
| 11. Starting Down the Path to Reform | 221 |
| Notes | 235 |
| Further Readings | 243 |
| Index | 249 |
| About the Author | 257 |
What People are Saying About This
"Pizzi is certainly convincing in his argument that the American trial system is in dire need of overhaul. "
-Law Society Journal,July 2002
"Written for a general audience. . . . Excellent. . . . If enough American judges and law professors read his book, some of the silly rules that he criticizes will be discarded."
-Judge Richard A. Posner,Times Literary Supplement
"A beautifully written, finely nuanced work, a marvelous comparative constitutional study of criminal procedure that seeks to understand the larger culture."
-Lawrence Fleischer,New York Law Journal
"In a cogent, direct argument, Pizzi inveighs against the triumph of the law of unintended consequences over the law of practicality. . . . An important book."
-Publishers Weekly,
"Pizzi is certainly convincing in his argument that the American trial system is in dire need of overhaul. " -Law Society Journal,July 2002 Rodney King