Trials Without Truth

Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It

William T. Pizzi

• Publisher: NYU Press
• Year: 1998
• ISBN:
  9780814768112
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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.

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 also have 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 “do-over” 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 ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. Soccer, Football, and Trial Systems
• 2. Technicalities and Truth: The Exclusionary Rule
• 3. Truth and the Amount of Evidence Available at Trial
• 4. A Trial System in Trouble
• 5. Discovering Who We Are: A Look at Four Different Trial Systems
• 6. Criminal Trials in the United States: Trials without Truth
• 7. Trials without Truth: Weak Trial Judges
• 8. The Supreme Court: An Institutional Failure
• 9. A Weak Trial System: Who Benefits?
• 10. Juries: The Loss of Public Confidence
• 11. Starting Down the Path to Reform
• Notes
• Further Readings
• Index
• About the Author