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  • The Law in the Real World

    Posted by James R. Rummel on February 10th, 2009 (All posts by )

    Daniel J. Solove wrote a short essay titled “Why the Innocent Are Punished More Harshly Than the Guilty”. His position is that wrongly accused innocent people will, at least sometimes, refuse plea bargains and reduced sentence deals. Instead they will simply insist on their innocence, which will lead to harsher sentences than if they played ball and admitted guilt.

    Jonathan wrote a cut-and-paste post of his own, agreeing that our criminal justice system is terribly outdated, woefully inaccurate, and completely unreliable. (Paraphrased for dramatic effect, of course.)

    This set off a little back and forth in the comments. Since law enforcement is an interest of mine, I decided to chime in. My remarks soon became too large for a simple comment, so I decided it might be more useful to write a post of my own.

    The first comment I want to discuss is by Shannon Love. He runs the numbers an concludes that our justice system works pretty well most of the time, but might be improved if judges were allowed to empower panels of experts to ensure that only reliable scientific testimony is admitted.

    This is actually something I come across fairly regularly when someone finds out that I used to work in law enforcement. “Why don’t the cops have this piece of equipment, why doesn’t the courts do things this way?” As Lexington Green points out in his own comment, there just isn’t enough money to do everything. And there never is going to be, since expectations rise as technology increases capabilities. As the system can accomplish more, the public will demand more. And the media isn’t helping any.

    Take the popular television drama CSI, where a PhD and a group of others with advanced degrees work the night shift. Just how much money does it take to lure such a dream team away from their studies, anyway? And this is just the graveyard shift! Is Stephen Hawking working the daylight hours?

    Forget adding to the burden on the budget by advocating new programs. We can’t afford what is on our plate’s now.

    Ginny points out that eyewitness testimony is unreliable, but she is not too crazy about living in a world that encourages us not to believe our “lying eyes.” She also thinks it might be a bad idea to get rid of it. Jonathan says “Eyewitness testimony is not reliable. Everyone knows this except, it appears, lawyers.”

    It just so happens that I’ve recently discussed that very thing on my own blog. Bottom line is that the vagaries of eyewitness testimony is extremely frustrating to the professionals who choose a career in law enforcement, but it really is something the system can’t do without. The reason why is that juries always want to to listen to someone who was there, even if it is some flight of fancy. Get a criminal dead to rights, with a non-existent alibi and fingerprints all over the corpse, and you can still have a shaky case unless you can get someone to say that they saw them do the deed.

    Harsh reality dictates that no one on the enforcement side of the law cares if the witness really saw what they say they saw, it only matters if the jury will believe. Educating lawyers on basic science would be pointless since their job is only to convince the jury that the science is correct if it bolsters their case, or to convince them that it is suspect if it harms their defense.

    Educating juries, now. That might do something.

    On that same comment, Jonathan also says “…there is a non-trivial percentage of convictions of innocent people, about which prosecutors profess unbelief even in the face of incontravertible DNA evidence.”

    I’m not really sure what he means by that. If Shannon Love’s figures are correct, then only a tiny percentage of death penalty cases are overturned by re-examining the DNA evidence. Is anything less than a 100% confidence rate unacceptable?

    If so, I’m afraid that Jonathan is not being very realistic. It is an imperfect world, and violent crime is usually a chaotic and frenzied act that the guilty will desperately try to deny any responsibility for. The standard of “beyond reasonable doubt” recognizes this basic flaw in the fabric of the world, and it is really the best we can do.

    (I can’t say for sure how many capital cases are overturned by DNA evidence, or even how many cases have seen the evidence re-examined, because there doesn’t seem to be any statistics on this issue. Groups in favor of abolishing the death penalty claim that no one should be executed because some cases are overturned, which isn’t an argument I find particularly compelling because they like to lump in instances where someone was freed on procedural grounds. This muddies the water further, and I really can’t see any clear picture here.)

     

    5 Responses to “The Law in the Real World”

    1. Lexington Green Says:

      As with any proposed, substantive change in government policy, the mere fact that the status quo is bad is no reason to (1) do anything, or (2) do any particular thing. All changes to government policy have unintended consequences. All changes to government policy have costs associated with making the change. Long standing practices may be bad, but very substantial reason to think some particular change will make a significant and positive difference is the only reason to make any particular change. Criminal prosecution and criminal procedure is a very deeply entrenched part of our legal system and general culture. There is no known system which is very good. It is a continuum of bad and worse. I do not agree that lots and lots of people are victimized by pointless prosectutions, just as I don’t believe there are masses of frivolous lawsuits on the civil side, because the opportunity costs of bringing them are too high. There are occasional abuses, some of them spectacular, of course. Abusive prosecutors should be defeated in elections. The public, however, may like the conduct of what some people consider to be abusive prosecutors. If so, that is a problem of democracy. Taking the selection of these people out of the democratic process will likely make it worse, not better. We will have ideologically motivated prosecutions rather than populist and opportunistic ones.

      The main thing we could do to improve the system would be an orderly, step-by-step, wrapping up of the war on drugs. We should start with making marijuana a legal, regulated, taxed product like alcohol or tobacco. Let major companies turn it into branded products sold at liquor stores to people with valid ID over age 21. Give it five years. See what happens. If all Hell breaks loose, don’t go further. If we basically medicalize rather than criminalize the problem, that is an improvement. Further steps could then be considered.

    2. mishu Says:

      Educating juries, now. That might do something.

      Isn’t that the job of the attorneys? Aren’t they supposed to educate the jury as to *why* the scientific evidence is valid or invalid? If attorneys don’t have a foundational understanding of the evidence, how can jurors trust that their argument is valid or not?

    3. Lexington Green Says:

      “Isn’t that the job of the attorneys?”

      Attorneys cross-examine the experts, and they do so with the advice and direction of their own experts. I have seen experts reduced to rubble. I have done it myself. That is precisely what is the supposed to happen. The experts are tested in open court under cross-examination. The jury decides who it believes. Of course, most cases settle before trial. Part of the calculus is the relative strengths of the experts.

    4. John Burgess Says:

      If we believe that it “better that ten guilty men go free rather than one innocent man be punished”, then the principle should be even more applicable to capital punishment.

      Screw-ups happen, innocent people get convicted, bad prosecutors do bad things, smart lawyers can defeat lawyers with the truth on their side. Kinda sucks to be the innocent guy when they stick the needle in your arm, even if the truth will out sometime in the future. Most families I know would rather have a family member still living rather than a cash settlement with the state.

      Fix the system so that there are exceptionally few screw-ups and maybe capital punishment can be justly applied. Under the current regime, I’d rather not have executions done in my name.

    5. Shannon Love Says:

      John Burgess,

      Fix the system so that there are exceptionally few screw-ups and maybe capital punishment can be justly applied

      I don’t suppose you could convert “exceptionally few” into a number a number of some kind? It’s kind of hard to reach an amorphous goal.