From Western Justice:

If we are truly concerned about the guilty being punished and the innocent being let free, then why encourage one side to hide the truth from the other side? Is the system about winning more than it is truth?

and (apropos of reciprocal discovery):

I know that defense attorneys are immediately concerned about such a reform, but if you are truly concerned about the guilty being punished and the innocent being let free (my concept of true “justice”), then I think this reform would allow a road to that path.

Um, no. There are preconditions to Justice (what WJ would call “true ‘justice’”, as opposed to what the criminal “justice” system provides) that aren’t met, and probably never can be.

Let’s say that Justice is “the guilty being punished and the innocent being let free”. What’s missing? We don’t want to execute non-violent first offenders, and we don’t want to let cold-blooded murderers off with a fine. So we’ll have to add appropriateness of punishment to WJ’s definition.

So now Justice is “the guilty being punished appropriately and the innocent being let free”. Simple enough, right?

Well, which guilty people should be punished? Those who hurt others? Those who hurt themselves? Those who behave antisocially? speak antisocially? think antisocially? Democracy is of no help in defining Justice, since the mass of people will define “guilt” based on their collective perceived self-interest.

There are original sources to which we could refer. We could punish those who violated the Ten Commandments, but whose interpretation? “kill” or “murder”? We could punish those who commit the Seven Deadly Sins, but don’t we commit the sin of pride by setting ourselves up to judge our fellow humans? We could follow Sharia — the Taliban is at least as certain of its definition of justice as WJ is of his.

Pretend that we could get over these hurdles and somehow agree on what conduct should justly be punished. Who then would decide what punishment is appropriate, and by what measure?

We might agree that punishment should be sufficient to deter the wrongdoer. But who among us has the omniscience to say what punishment is enough?

What should the other goals of punishment be? Incapacitation? Rehabilitation? Retribution? None of these penal goals is uncontroversial.

We can agree that, whatever the goals of punishment, punishment should not be greater than is necessary to accomplish those goals. But who among us has the wisdom to say what punishment is too much? What individual factors must we take into account before deciding what punishment is appropriate? Is it better to punish too much, or not at all?

In the criminal “justice” system we have to work with the laws that the legislature writes. Does anyone contend that our elected lawmakers, either individually or collectively, have the intelligence (to say nothing of wisdom) to answer the plenitude of questions that are necessary to even define Justice?

Set aside for a moment the problem that we’re not going to agree anytime soon on a question (“what is Justice?”) that people have been fighting over for 150,000 years. Pretend that your state legislature is suddenly touched by divine wisdom and omniscience, and revamps the penal code so that thinking people of conscience can feel secure in our belief that Law reflects Justice.

Even then, the result in the courtroom would be far-removed from this Justice. We lawyers work with the cases that the police present to the government, and with the evidence that human beings provide us. Human beings lie. Cops are not exempt. When cops lie to make a case, it is not an isolated incident; it’s business as usual (the cops who don’t lie are complicit in the other cops’ mendacity). In order for our hypothetical enlightened legislature’s just laws to be justly enforced, this has to change. Everyone providing evidence or testimony against a human being must unquestionably be a truth-teller.

So now let’s pretend that we can create a world in which all prosecution witnesses are truth-tellers. What obstacles are there to the quest for Justice in the criminal “justice” system?

The next obstacle is we lawyers. Our imaginary legislature can’t have accounted for every wrinkle in the human condition that might justify one sentence rather than another, and will have written the laws so that those of us closer to the facts can apply the law justly. So, even if our imaginary witnesses are truthful, each of us has to have the wisdom and omniscience to know what the just punishment is in the particular case. (If we have such wisdom we will, of course, always agree with each other about Justice.)

If one of us does not have those powers, or if one witness is not indubitably truthful, or if one legislator is not indisputably wise, then the system will fail to deliver Justice consistently. If we pretended in the real world that all of the legislators were honest, all of the witnesses truthful, and all of our adversaries wise, then a venal legislator, deceitful witness, or unfair prosecutor could singlehandedly wreak terrible injustice.

So we don’t naively pretend that this system of laws made by men is a magical instrument of Justice. We call it the best system, but it’s only best compared to all of the systems that rely on the wisdom of individual men to find Justice.

Instead of trusting any individual to be just, we trust the collective wisdom of groups. That is, we trust juries. We trust them (at least here in Texas) to decide the things that imperfect lawyers can’t agree on — “should he be on probation or in prison?”. We trust them to distinguish the untruthful witnesses from the truthful ones. We even trust them (though we don’t tell them this) not to follow unjust laws.

We don’t trust juries fully, though. Even in Texas, we don’t give them unfettered discretion to set punishment. Also, we give them only the information that we think they should consider in reaching their verdicts. The rules of evidence are about limiting the data that jurors may consider because, after hundreds of years of experimentation, we generally agree that some things must not contribute to the jury’s determination (for example, the promiscuity of the complainant or the unrelated criminal history of the accused).

Knowing what the jury must not consider, however, is different than knowing what the jury should consider or what weight the jury should give it. For that, we have advocates whose job it is to present the evidence in the light most favoring their clients, and to seek to counter the evidence favoring their adversaries’ clients.

Because we know that people are not omniscient and cannot be counted on to know what Justice is (or to act against their own self-interest in the cause of Justice), ours is an adversary system of justice. A perfect system? No. But a better system could only exist in a perfect world.

0 responses to “Naivete”

  1. This is a truly great entry for a lot of reasons. My compliments, Mark. Most everything you’ve said is undeniably true and philosophically sound (although we can quibble about particulars — 150,000 years of fighting about justice sounds like way too long…how about 20,000? And the “business as usual” slam for the cops lying is just your cynical side showing.)

    But while you make your points well, wasn’t Western Justice simply pointing out a more modest problem that is still a problem even after we concede all of the points that you’ve made: Namely, that we have a system of finding-facts that encourages one side in an adversarial process to conceal and distort those facts?

    I’m sure you could argue BOTH sides and I’m not going to deny that prosecutors sometimes attempt to exclude evidence unfavorable to our cause, but I think you would agree, based on your comments on AHCL’s site about the “secret of winning” that often the script is pretty bad for the defense, and the defendant as a result almost ALWAYS has a vested interest in suppressing the truth.

    Maybe this is just an inherent failing of our system. Certain other models approach the problem of criminal justice differently, such as certain European systems where the judge is not only a fact finder but an investigative information-gatherer — I’m not sure where that leaves the prosecutor and defense attorney and I’m not sure I like the idea, since that puts a lot more responsibility on the judge’s shoulders — but one might argue it is superior to our adversarial system.

    Anyway, all your good points notwithstanding, perhaps you should not dismiss so lightly as naivete the idea that a system that somehow promotes the determination of actual facts (at least at the guilt stage — there are always going to be legitimate disagreements over the appropriate punishment) would be worth striving for. And, to the extent that reciprocal discovery forwards that goal, perhaps it should not be so lightly dismissed, either.

  2. Tarian,

    All that brilliance, and I failed to make my point. Sigh.

    The people who preserved for us the right to a jury trial were in some ways more worldly than most Americans are today. They were familiar with some inquisitorial European justice systems, and chose an adversarial system nonetheless.

    For the criminal justice system to appropriately punish the (factually) guilty and free the (factually) innocent is a nice aspiration, but an impossibility in a system of, by, and for imperfect humans. Pretending that what we do within that system can effect Justice is naive, and probably counterproductive; a large dose of cynicism is indicated.

    A prosecutor who believed everything the cops told him would be a tool of the police, renouncing his responsibility to seek Justice, because he would often be lied to.

    (Do cops lie? All the time, because they think the end justifies the means. There are no isolated incidents. Often the lies are too small and innocuous for us to fight about. But when one cop lies or cheats, it’s unthinkable for the rest to rat him out. If you can find me one honest cop who’s been on the job for more than six months and will claim that he’s never known about (and not reported) another cop lying, cheating, stealing, or otherwise breaking the rules, I’ll pay for the polygraph myself.)

    A defense lawyer, in contrast with a prosecutor, often has a constitutional obligation not to seek Justice. Still the truth is almost always better than a lie. Shouldn’t that be an absolute? Why “almost”? Because with questions of criminal defense ethics, the correct answer often begins with “it depends.”

    So we muddle along the best we can, hoping that the end result is just, but we can’t know for sure whether it is, and if it truly is, it’s mere coincidence.

    So it goes.

  3. I would just like to endorse and amplify Mark’s point that cops do, in fact, perjure themselves as a matter of course, feigned outrage expressed on other blogs notwithstanding. Indeed, they violate their oaths more willfully and frequently than even Defendants and Defendants’ witnesses, who feel intimidated enough to most always tell the truth, even when it means their loved one will be killed by the State for it. After all, they know only too well who gets prosecuted for criminal acts and who does not. So, too, do cops know this. They probably even know that power corrupts. They don’t seem to care.

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