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We need hardly say that we have no wish to lessen the fairness of criminal trials. But it must be clear what fairness means in this connection. It means, or ought to mean, that the law should be such as will secure as far as possible that the result of the trial is the right one.
– Criminal Law Revision Committee1
Underlying the question of guilt or innocence is an objective truth: the defendant, in fact, did or did not commit the acts constituting the crime charged. From the time an accused is first suspected to the time the decision on guilt or innocence is made, our criminal justice system is designed to enable the trier of fact to discover the truth according to law.
– Justice Lewis Powell2
A Road Map
If we look closely at the criminal justice system in the United States (or almost anywhere else for that matter), it soon becomes evident that there are three distinct families of basic aims or values driving such systems. One of these core aims is to find out the truth about a crime and thus avoid false verdicts, what I will call thegoal of error reduction. A second is premised on the recognition that, however much one tries to avoid them, errors will occur from time to time. This goal addresses the question of which sort of error, a false acquittal or a false conviction, is more serious, and thus more earnestly to be avoided. In short, the worry here is with how the errors distribute themselves. Since virtually everyone agrees that convicting an innocent person is a more costly mistake than acquitting a guilty one, a whole body of doctrine and practices has grown up in the common law about how to conduct trials so as to make it more likely that, when an error does occur, it will be a false acquittal rather than a false conviction. For obvious reasons, I will say that this set of issues directs itself to the question of error distribution. The third set of values driving any legal system is a more miscellaneous grab bag of concerns that do not explicitly address trial error but focus instead on other issues important to the criminal justice system. At stake here are questions about the efficient use of resources, the protection of the rights of those accused of a crime, and various other social goods, such as the sanctity of marriage (spouses cannot be made to testify against one another) or preserving good relations with other nations (diplomats cannot generally be convicted of crimes, however inculpatory the evidence). I will call these nonepistemic policy values. Such concerns will figure here because, although not grounded in the truth-seeking project, their implementation frequently conflicts with the search for the truth.
Judges and legal scholars have insisted repeatedly and emphatically that the most fundamental of these values is the first: that of finding out whether an alleged crime actually occurred and, if so, who committed it. The U.S. Supreme Court put the point concisely in 1966: “The basic purpose of a trial is the determination of the truth.”3 Without ascertaining the facts about a crime, it is impossible to achieve justice, since a just resolution crucially depends on correctly figuring out who did what to whom. Truth, while no guarantee of justice, is an essential precondition for it. Public legitimacy, as much as justice, demands accuracy in verdicts. A criminal justice system that was frequently seen to convict the innocent and to acquit the guilty would fail to win the respect of, and obedience from, those it governed. It thus seems fair to say that, whatever else it is, a criminal trial is first and foremost an epistemic engine, a tool for ferreting out the truth from what will often initially be a confusing array of clues and indicators. To say that we are committed to error reduction in trials is just another way of saying that we are earnest about seeking the truth. If that is so, then it is entirely fitting to ask whether the procedures and rules that govern a trial are genuinely truth-conducive.
The effort to answer that question constitutes what, in the subtitle of this book, I have called “legal epistemology.” Applied epistemology in general is the study of whether systems of investigation that purport to be seeking the truth are well engineered to lead to true beliefs about the world. Theorists of knowledge, as epistemologists are sometimes known, routinely examine truth-seeking practices like science and mathematics to find out whether they are capable of delivering the goods they seek.
Legal epistemology, by contrast, scarcely exists as a recognized area of inquiry. Despite the nearly universal acceptance of the premise that a criminal trial is a search for the truth about a crime, considerable uncertainty and confusion reign about whether the multiple rules of proof, evidence, and legal procedure that encumber a trial enhance or thwart the discovery of the truth. Worse, there has been precious little systematic study into the question of whether existing rules could be changed to enhance the likelihood that true verdicts would ensue. Legal epistemology, properly conceived, involves both a) the descriptive project of determining which existing rules promote and which thwart truth seeking and b) the normative one of proposing changes in existing rules to eliminate or modify those rules that turn out to be serious obstacles to finding the truth.
The realization of a legal epistemology is made vastly more difficult because, as just noted, nonepistemic values are prominently in play as well as epistemic ones. In many but not all cases, these nonepistemic values clash with epistemic ones. Consider a vivid example. If we were serious about error reduction, and if we likewise recognized that juries sometimes reach wrong verdicts, then the obvious remedy would be to put in place a system of judicial review permitting appeals of both acquittals and convictions. We have the latter, of course, but not the former. Every erroneous acquittal eludes detection because it escapes review. The absence of a mechanism for appealing acquittals is patently not driven by a concern to find the truth; on the contrary, such an asymmetry guarantees far more errors than are necessary. The justification for disallowing appeal of acquittals hinges on a policy value. Double jeopardy, as it is known, guarantees that no citizen can be tried twice for the same crime. Permitting the appeal of an acquittal, with the possibility that the appeal would be reversed and a new trial ordered, runs afoul of the right not to be tried more than once. So, we reach a crossroads, seemingly faced with having to choose between reducing errors and respecting traditional rights of defendants. How might we think through the resolution of conflicts between values as basic as these two are? Need we assume that rights always trump the search for the truth, or vice versa? Or, is there some mechanism for accommodating both sorts of concerns? Such questions, too, must form a core part of the agenda of legal epistemology.
This book is a first stab at laying out such an agenda. In this chapter, I formulate as clearly as I can what it means to speak of legal errors. Absent a grasp of what those errors are, we obviously cannot begin to think about strategies for their reduction. In Chapters 2 through 4, we examine in detail a host of important questions about error distribution. Chapters 5 through 8 focus on existing rules of evidence and procedure that appear to pose serious obstacles to truth seeking. Those chapters include both critiques of existing rules and numerous suggestions for fixing such flaws as I can identify. The final chapter assays some possible solutions to the vexatious problems generated by the tensions between epistemic values and nonepistemic ones.
A Book as Thought Experiment
The two passages in the epigraph to this chapter from Supreme Court Justice Lewis Powell and England’s Criminal Law Revision Committee articulate a fine and noble aspiration: finding out the truth about the guilt or innocence of those suspected of committing crimes. Yet, if read as a description of the current state of American justice, they remain more an aspiration than a reality. In saying this, I do not mean simply that injustices, false verdicts, occur from time to time. Occasional mistakes are inevitable, and thus tolerable, in any form of human inquiry. I mean, rather, that many of the rules and procedures regulating criminal trials in the United States – rules for the most part purportedly designed to aid the truth-finding process – are themselves the cause of many incorrect verdicts. I mean, too, that the standard of proof relevant to criminal cases, beyond reasonable doubt, is abysmally unclear to all those – jurors, judges, and attorneys – whose task is to see that those standards are honored. In the chapters that follow, I will show that the criminal justice system now in place in the United States is not a system that anyone concerned principally with finding the truth would have deliberately designed.4
A natural way to test that hypothesis would be to examine these rules, one by one, to single out those that thwart truth seeking. And, in the chapters to follow, I will be doing a fair share of precisely that. But, as we will discover, it is often harder than it might seem to figure out whether a given evidential practice or procedure is truth promoting or truth thwarting. In short, we need some guidelines or rules of thumb for deciding whether any given legal procedure furthers or hinders epistemic ends. Moreover, for purposes of analysis, we need to be able to leave temporarily to one side questions about the role of nonepistemic values in the administration of justice. We will have to act as if truth finding were the predominant concern in any criminal proceeding. In real life, of course, that is doubtful.
As I noted at the outset, criminal trials are driven by a host of extra-epistemic values, ranging from concerns about the rights of the defendant to questions of efficiency and timeliness. (Not for nothing do we insist that justice delayed is justice denied.) The prevailing tendency among legal writers is to consider all these values – epistemic and nonepistemic – as bundled together. This, I think, can produce nothing but confusion. Instead of the familiar form of analysis, which juggles all these values in midair at the same time, I am going to propose a thought experiment. I will suggest that we focus initially entirely on questions of truth seeking and error avoidance. I will try to figure out what sorts of rules of evidence and procedure we might put in place to meet those ends and will identify when existing rules fail to promote epistemic ends. Then, with that analysis in hand, we can turn to compare the current system of evidence rules and procedures with a system that is, as it were, epistemically optimal. When we note, as we will repeatedly, discrepancies between the kind of rules we would have if truth seeking were really the basic value and those rules we find actually in place, we will be able then to ask ourselves whether these epistemically shaky rules conduce to values other than truthseeking and, if they do, when and whether those other values should prevail over more epistemically robust ones. Although I ignore such values in the first stage of the analysis, I do not mean for a moment to suggest that they are unimportant or that they can be ignored in the final analysis. But if we are to get a handle on the core epistemic issues that are at stake in a criminal trial, it is best – at the outset – to set them to one side temporarily.
If it seems madcap to try to understand the legal system by ignoring what everyone concedes to be some of its key values, I remind you that this method of conceptual abstraction and oversimplification has proved its value in other areas of intellectual activity, despite the fact that every oversimplification is a falsification of the complexities of the real world. Consider what is perhaps the best-known example of the power of this way of proceeding: During the early days of what came to be known as the scientific revolution, Galileo set out to solve a conundrum that had troubled natural philosophers for almost two millennia, to wit, how heavy bodies fall. Everyone vaguely understood that the velocity of fall was the result of several factors. The shape of a body makes a difference: A flat piece of paper falls more slowly than one wadded into a ball. The medium through which a body is falling likewise makes a crucial difference: Heavy bodies fall much faster through air than they do through water or oil. Earlier theories of free fall had identified this resistance of the medium as the key causal factor in determining the velocity of fall. Galileo’s strategy was to turn that natural assumption on its head. Let us, he reasoned, ignore the shapes of bodies and their weights and the properties of the media through which they fall – obvious facts all. Assume, he suggested, that the only relevant thing to know is how powerfully bodies are drawn to the earth by virtue of what we would now call the gravitational field in which they find themselves. By making this stark simplification of the situation, Galileo was able to develop the first coherent account of fall, still known to high school students as Galileo’s Law. Having formulated a model of how bodies would fall if the resistance of the medium were negligible (which it is not) and the shape of the body were irrelevant (which it likewise is not), and the weight of a body were irrelevant (which it is), Galileo proceeded to reinsert these factors back into the story in order to explain real-world phenomena – something that would have been impossible had he not initially ignored these real-world constraints. The power of a model of this sort is not that it gets things right the first time around, but that, having established how things would go under limited and well-defined conditions, we can then introduce further complexities as necessary, without abandoning the core insights offered by the initial abstraction.
I have a similar thought experiment in mind for the law. Taking the Supreme Court at its word when it says that the principal function of a criminal trial is to find out the truth, I want to figure out how we might conduct criminal trials supposing that their predominant aim were to find out the truth about a crime. Where we find discrepancies between real-world criminal procedures and epistemically ideal ones (and they will be legion), we will need to ask ourselves whether the epistemic costs exacted by current real-world procedures are sufficiently outweighed by benefits of efficiency or the protection of defendant rights to justify the continuation of current practices.
Those will not be easy issues to resolve, involving as they do a weighing of values often considered incommensurable. But such questions cannot even be properly posed, let alone resolved, until we have become much clearer than we now are about which features of the current legal regime pose obstacles to truth seeking and which do not. Because current American jurisprudence tends to the view that rights almost invariably trump questions of finding out the truth (when those two concerns are in conflict), there has been far less discussion than is healthy about whether certain common legal practices – whether mandated by common law traditions or by the U.S. Constitution or devised as court-designed remedies for police abuses – are intrinsically truth thwarting.
My object in designing this thought experiment is to open up conceptual space for candidly discussing such questions without immediately butting up against the purported argument stopper: “but X is a right” or “X is required (or prohibited) by the Constitution.” Just as Galileo insisted that he wouldn’t talk about the resistance of the air until he had understood how bodies would fall absent resistance, I will try – until we have on the table a model of what a disinterested pursuit of the truth in criminal affairs would look like – to adhere to the view that the less said about rights, legal traditions, and constitutional law, the better.
I said that this thought experiment will involve figuring out how criminal trials could be conducted, supposing that true verdicts were the principal aim of such proceedings. This might suggest to the wary reader that I intend to lay out a full set of rules and procedures for conducting trials, starting from epistemic scratch, as it were. That is not quite the project I have in mind here, since it is clear that there is a multiplicity of different and divergent ways of searching for the truth, which (I hasten to add) is not the same thing as saying that there are multiple, divergent truths to be found. Consider one among many questions that might face us: If our aim is to maximize the likelihood of finding the truth, should we have trial by judge or trial by jury? I do not believe that there is a correct answer to that question since it is perfectly conceivable that we could design sets of procedures that would enable either a judge or a jury to reach verdicts that were true most of the time. English speakers have a fondness for trial by jury, whereas Roman law countries prefer trial by judge or by a mixed panel of judges and jurors. For my part, I can see no overwhelming epistemic rationale for a preference for one model over the other. If we Anglo-Saxons have any rational basis, besides familiarity, for preferring trial by jury, it has more to do with the political and social virtues of a trial by one’s peers rather than with any hard evidence that juries’ verdicts are more likely to be correct than judges’ verdicts are.
To begin with, I intend to propose a series of guidelines that will tell us what we should look for in deciding whether any particular arrangement of rules of evidence and procedure is epistemically desirable. This way of proceeding does not directly generate a structure of rules and procedures for conducting trials. What it will do is tell us how to evaluate bits and pieces of any proposed structure with respect to their epistemic bona fides. It will set hurdles or standards for judging any acceptable rule of evidence or procedure. If you want an analogy, think of how the rules of proof in mathematics work. Those rules do not generally generate proofs by some sort of formal algorithm; bright mathematicians must do that for themselves. What the rules of proof do (except in very special circumstances) is enable mathematicians to figure out whether a purported proof is a real proof. In effect, what I will be suggesting is a set of meta-rules or meta-principles that will function as yardsticks for figuring out whether any given procedure or evidence-admitting or evidence-excluding practice does, in fact, further epistemic ends or whether it thwarts them.
What I am proposing, then, is, in part, a meta-epistemology of the criminal law, that is, a body of principles that will enable us to decide whether any given legal procedure or rule is likely to be truth-conducive and error reducing. The thought experiment I have been describing will involve submitting both real and hypothetical procedures to the scrutiny that these meta-principles can provide. When we discover rules currently in place that fail to serve epistemic ends, we will want to ask ourselves whether they cannot be replaced by rules more conducive to finding the truth and minimizing error. If we can find a more truth-conducive counterpart for truth-thwarting rules, we will then need to decide whether the values that the original rules serve (for instance, protecting certain rights of the accused) are sufficiently fundamental that they should be allowed to prevail over truth seeking.
If, as Justice Powell says in the epigraph, the system “is designed” to discover the truth, you might reasonably have expected that we already know a great deal about the relation of each of its component parts to that grand ambition. The harsh reality is that we know much less than we sometimes think we do. Many legal experts and appellate judges, as we will see on numerous occasions in later chapters, continue to act and write as if certain portions of the justice system that actually thwart truth seeking have an epistemic rationale. Still worse, some jurists and legal scholars attribute error-reducing power to rules and doctrines that, viewed dispassionately, produce abundant false verdicts in their own right. Like Powell, they pay lip service to the mantra that the central goal of the system is to get at the truth, all the while endorsing old rules, or putting in place new ones, that hobble the capacity of that system to generate correct verdicts. So long as jurists believe, as many now do, that certain judicial rules (for instance, the suppression of “coerced” confessions5) promote truth finding – when in fact they do the opposite – there can be nothing but confusion concerning when and if truth seeking is being furthered.
One important reason that we know so much less than we should is that the courts in particular, but also the justice system in general, tend to discourage the sort of empirical research that would enable us to settle such questions definitively. In philosophy, my biases lean in the direction of naturalism. That means that I believe that most philosophical issues ultimately hinge on finding out what the facts are. I believe, further, that our methods of inquiry must be constantly reviewed empirically to see whether they are achieving what we expect of them. In writing this book, I have been constantly frustrated by the paucity of empirical information that would allow us to reach clear conclusions about how well or badly our legal methods are working. Where there are reliable empirical studies with a bearing on the issues addressed here, I will make use of them. Unfortunately, given the dearth of hard evidence, the analysis in this book will fall back on armchair hunches about the likely effects of various rules and procedures far more often than I would have liked. My defense for doing so is simply that one must fight one’s battles with the weapons that one has at hand.
I should stress, as well, that I approach these questions as a philosopher, looking at the law from the outside, rather than as an attorney, working within the system. Although I have thought seriously about these issues over several years, I cannot possibly bring to them the competences and sensibilities of a working trial lawyer.6 What interests me about the law is the way in which it functions, or malfunctions, theoretically, as a system for finding truth and avoiding error. In this role, I am less concerned than a civil libertarian or defense attorney might be with the rights of the accused and more concerned with how effectively the criminal justice system produces true verdicts. The analysis offered in this book does not purport to tell juries and judges how to decide a case; such dreadful decisions must depend on the case’s special circumstances and its nuances. Its aim, rather, is the more prophylactic one of pointing out some errors that these fact finders should avoid in the always difficult quest for a true and just verdict.
There will be readers who expect any avowedly philosophical treatment of the law to center on issues of morality and rights or on questions about the authority and essence of the law. Such are the themes that have dominated the philosophy of law in the last half-century. The most influential philosopher of law in the English-speaking world in the twentieth century, H. L. A. Hart, managed to write a lengthy, splendid book on the philosophy of law (The Concept of Law, 1961) that says virtually nothing about what I am calling legal epistemology. His eminent continental counterpart, Hans Kelsen, did virtually the same thing a generation earlier in his Pure Theory of Law (1934). Readers expecting a similar agenda from me will be sorely disappointed. To them in particular, I say this: If it is legitimate and fruitful for moral philosophers, such as Gerald Dworkin or John Rawls, to focus on the law principally as an exercise in ethics and morality, while largely ignoring the importance of truth seeking in the law (which they famously do), it is surely just as appropriate to look at the law through the lenses of epistemology and the theory of knowledge. Although one is not apt to learn so by looking at the existing philosophical literature on the subject, it is indisputable that the aims of the law, particularly the criminal law, are tied to epistemic concerns at least as profoundly as they are to moral and political ones. This book is a deliberate shot across the bow of the juggernaut that supposes that all or most of the interesting philosophical puzzles about the law concern its moral foundations or the sources of its authority.
Principal Types of Error
In this initial chapter, I will to begin to lay out some of the analytic tools that we will need in order to grapple with some thorny problems in the theory and practice of the criminal law. As its title already makes clear, this book is largely about legal errors. Since treating the law as an exercise in epistemology inevitably means that we will be involved in diagnosing the causes of error, we need to be clear from the outset about what kinds of errors can occur in a criminal proceeding.
Since our concern will be with purely epistemic errors, I should say straightaway that I am not using the term “error” as appellate courts are apt to use it. For them, an “error” occurs in a trial just in case some rule of evidence or procedure has been violated, misinterpreted, or misapplied. Thus, a higher court may determine that an error occurred when a trial judge permitted the introduction of evidence that the prevailing rules should have excluded or when some constitutional right of the defendant was violated. Courts will find that an error occurred if a judge, in his instructions to the jury about the law, made some serious mistake or other, in the sense of characterizing the relevant law in a way that higher courts find misleading or incorrect. Very occasionally, they will decide that an error occurred if the jury convicted someone when the case against the defendant failed to meet the standard of proof beyond a reasonable doubt.7
By contrast, I will be using the term “error” in a more strictly logical and epistemic sense. When I say that an error has occurred, I will mean either a) that, in a case that has reached the trial stage and gone to a verdict, the verdict is false, or b) that, in a case that does not progress that far, a guilty party has escaped trial or an innocent person has pleaded guilty and the courts have accepted that plea. In short, for the purposes of our discussion, an error occurs when an innocent person is deemed guilty or when a guilty person fails to be found guilty. For obvious reasons, I will call the first sort of error a false inculpatory finding and the second a false exculpatory finding.
There are two important points to note about the way in which I am defining legal errors:
First, errors, in my sense, have nothing to do with whether the system followed the rules (the sense of “error” relevant for appellate courts) and everything to do with whether judicial outcomes convict the guilty and free the innocent. Even if no errors of the procedural sort that worries appellate courts have occurred, an outcome may be erroneous if it ends up freeing the guilty or convicting the innocent. The fact that a trial has scrupulously followed the letter of the current rules governing the admissibility of evidence and procedures – and thus avoids being slapped down by appellate courts for breaking the rules – is no guarantee of a correct outcome. To the contrary, given that many of the current rules (as we will see in detail in later chapters) are actually conducive to mistaken verdicts, it may well happen that trials that follow the rules are more apt to produce erroneous verdicts than trials that break some of them. Accordingly, our judgment that an error has occurred in a criminal case will have nothing to do with whether the judicial system followed its own rules and everything to do with whether the truly guilty and the truly innocent were correctly identified.
Second, standard discussions of error in the law – even from those authors who, like me, emphasize truth and falsity rather than rule following or rule breaking – tend to define errors only for those cases that reach trial and issue in a verdict. Such authors, naturally enough, distinguish between true and false verdicts. That is surely a legitimate, and an important, distinction, but it is neither the most general nor the most useful way of distinguishing errors. As my definition of “error” has already indicated, I claim that errors occur whenever the innocent are condemned by the system and whenever the guilty fail to be condemned. Obviously, one way in which these mistakes can happen is with a false conviction or a false acquittal. But what are we to say of the guilty person who has been arrested and charged with a crime that he truly committed but against whom charges were subsequently dropped by the prosecutor or dismissed by the judge? These are mistakes just as surely as a false acquittal is. Likewise, if an innocent person – faced with a powerfully inculpatory case – decides to accept a plea bargain and plead guilty, this is an error of the system just as much as a false conviction is, even though the case against the accused is never heard and a jury never renders a verdict.
|1||Thinking about error in the law||1|
|2||The unraveling of reasonable doubt||29|
|3||Fixing the standard of proof||63|
|4||Innocence, the burden of proof, and the puzzle of affirmative defenses||89|
|5||Evaluating evidence and procedures||117|
|6||Silent defendants, silent witnesses, and lobotomized jurors||147|
|7||Confessions, poison fruit, and other exclusions||171|
|8||Double jeopardy and false acquittals : letting felons and judges off the hook?||194|
|9||Dubious motives for flawed rules : the clash between values||213|