Quote of the Day

In terms of solutions, I would advocate getting rid of acceptance of responsibility benefits. I would also advocate reforming the plea deal system so that there can’t be enormous disparities between punishments offered in a plea deal and possible punishments if a defendant chooses to exercise his or her right to go to trial.
I would also dramatically reform the trial process, which is not a particularly good truth-finding mechanism. The rules of evidence, for example, are based on false and long-disproven empirical and psychological assumptions. A big step forward would be reforming the rules regarding eyewitness testimony, which studies consistently show to be extremely unreliable. Certainly the studies that demonstrate its unreliability should be allowed at trial — they’re currently not. And perhaps eyewitness testimony should be excluded from trial if it is so unreliable — at least under certain circumstances.
We’re in the 21st Century and the law still uses slightly-updated medieval methods for determining truth. As all the DNA exonerations are showing, our criminal justice system is woefully inaccurate. It’s time we thought about how to reform and modernize it.

-Daniel J. Solove, responding to a commenter on his post, Why the Innocent Are Punished More Harshly Than the Guilty

He’s right.

10 thoughts on “Quote of the Day”

  1. You would need to amend the Constitution do, for example, get rid of jury trials or to get rid of the rules of evidence. I have no confidence that what we would get would be better.

  2. “the trial process, which is not a particularly good truth-finding mechanism.”

    So why are they so anxious to ensure that the mujihadin at Gitmo get tried in American courts. Or is just Mummia who has been unjustly convicted.

  3. I’m not sure I by the idea that trials aren’t accurate. After all, DNA reversals only happened in (IRRC) under 3% of cases in which DNA is retested. If you assume that the actual level of failure is twice that (for cases that don’t have DNA) then your looking at a 6% failure rate which makes the system 94% accurate. Also, most (IRCC) 60%-80% of cases never go to trail. So, the 6% failure is only 6% of the 20% that go to trail. So, although reversals make a lot of news, I don’t think they’re really indicative of the accuracy of the system.

    I would like to see some kind of filter applied to the science that is presented in court rooms in both civil and criminal trials. Judges should impanel a jury of technical experts to judge whether the testimony of scientific experts actually passes muster. Given that the CSI effect causes juries to give great weight to supposedly objective testimony, it behooves us to have real scientist and not judges determine if the testimony is in the realm of the possible or not.

  4. Not much remains of what I learned in a couple of criminal justice classes taken as an under graduate student, but one fact that did stick is this:

    As a practical matter the “innocent” are convicted less than statistics sighted by Jonathon would indicate. The reason is that usually it’s a “usual suspect” who is the accused. The typical serious criminal is caught and brought to trial for only a small percentage of his criminal acts. Only a small proportion, say only 10% or less, of his criminal acts make it to an indictment so that, even if he hasn’t done the particular crime he’s accused of, it’s a good bet he’s done a similar one and a number of others.

  5. “Judges should impanel a jury of technical experts to judge whether the testimony of scientific experts actually passes muster.”

    1. The other side has its own experts and cross-examines the experts. This works pretty well. As imperfect as it is, I have no reason to think some purportedly disinterested third party would do better, certainly not at reasonable cost. A decent lawyer, advised by his own expert, can usually make mincemeat of a bogus or over-reaching expert.

    2. A court does not have the resources to “impanel a jury of technical experts”. Who would pay for it? How would the court find these people? It is often hard to even find an expert. This is not realistic. American courts are arbiters of disputes, and the litigants do the work. Our system is unlike the European system, which uses the “inquisitorial” system (I don’t like the sound of that either). There, the court conducts its own investigation, calls its own witnesses, etc. Our system is better. We are better off this way.

  6. Anecdotal: Yes, we tend to overvalue eyewitness testimony – but I’m not too crazy about living in a world that encourages us not to believe our “lying eyes.” Perhaps discounting it in more fleeting moments would be good, but getting rid of it would not seem such a good idea.

    More anecdotal: When I taught in a minimum security prison, I did not encourage personal stories much – frankly, I didn’t want to know. On the other hand, discussion was likely to have something to do with why they were there and it goes to the “usual suspects” line – many said they hadn’t committed the crime for which they had been sentenced but had committed another. I assume most of that had to do with plea bargaining, though sometimes it was “they finally caught me and this time I was innocent.” Of course, I suspect we had a smaller number of true psychopaths in that unit than you’d find thirty miles away in the max security places.

  7. Everyone in prison tells you they were not guilty and don’t belong there for some reason or another. There is always some long, boring tale of woe about how it is someone else’s fault. All crap, almost all the time. The kind of person that makes excuses, refuses to take responsibility, and lies to himself and others about his rotten behavior is often the kind of person who shamelessly engages in rotten behavior.

  8. But Lex, my point was that everyone told me that was what they’d say, but that wasn’t what they said. They said they were guilty – sometimes of worse crimes, sometimes merely of a different one. I suspect that was because their lawyers plea bargained them down to something they didn’t do because the d.a.’s would rather accept that than take the gamble of a trial on a higher charge. That they also claimed that they’d have gotten off if they had a better lawyer is also true – but that doesn’t mean that they were innocent – merely cynical. One of my husband’s old college friends was a d.a. in Fort worth (or Dallas?). anyway, he said they had like a 97% conviction rate. That surely means that most of the ones brought to trial really were guilty – but also indicates how much plea bargaining and how many of the guilty got off to keep that rate that high.

  9. -DNA reversals on death-penalty cases are significant because disproportionately large legal and financial resources are devoted to such cases. Yet even under such circumstances there is a non-trivial percentage of convictions of innocent people, about which prosecutors profess unbelief even in the face of incontravertible DNA evidence. When you consider how much less care and expense go into trying most criminal cases, it seems reasonable to suspect that there is an even larger percentage, perhaps a much larger percentage, of bogus convictions in such cases. (And yes, probably the vast majority of people in prison are guilty of the crimes of which they were convicted. But it appears that many are there unjustly, and this is indefensible.)

    -The legal profession, and particularly judges, is far behind the state of knowledge of human behavior that is taken for granted in, for example, busines schools and by psychologists who study phenomena such as memory (e.g., Elizabeth Loftus). Eyewitness testimony is not reliable. Everyone knows this except, it appears, lawyers.

    -There is a strong case to be made for improving the education of lawyers, who are too often ignorant of basic science and statistical inference.

    -Our prosecutorial system is full of perverse incentives for conviction that probably lead to many unjust convictions.

    -Given the deficiences of our legal process, I would argue that juries buffer some of the stupidies of the system and that jury trials are the least-bad alternative for many criminal cases.

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