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The appalling rate of violent crime in the United States needs no elaboration. Our homicide death rate for young males is 60 times that of Austria and Switzerland and 20 times that of England and France. In continental Europe, most homicide arrests result in conviction and imprisonment, compared to 10 percent in this country. Although statistics vary enormously depending on the gravity of the offense, a felony trial in the United States can last from 14 to 28 days while a media event like the 0. J. Simpson trial can last six months. In Europe the average homicide trial takes a week.
Yet for all its laxity-perhaps in part because of it-American criminal justice has a harsh and vindictive face. We have no compunction about sentencing a nonviolent offender to five years in prison for possession of cocaine. Shockingly, under the "three strikes and you're out" policy, such a person can be sentenced to 20 years without parole. We often imprison small-time offenders instead of sentencing them to constructive community service.
The simultaneous ineffectiveness and harshness of American criminal justice has many causes. Two of the most deeply rooted are its adversarial character and its irrational maze of procedural technicalities. We share the Anglo-Saxon system of criminal justice with Great Britain, Canada and other commonwealth countries, but their judicial control of the trial process, a disciplined bar and a common-sense approach make the adversarial system work. We have distorted the trial process into a gladiatorial contest of lawyers before a passive judge as umpire and a blank-slate jury deliberately selected for its ignorance of the personalities and background.
In continental Europe and nearly all Third World countries with a Latin cultural heritage, the adversarial system as such does not exist. Instead we find a system of criminal justice derived from the 2000-year tradition of Roman law and based on objective inquiry into the facts by a judicial tribunal. Misleadingly called "inquisitional," this system has some adversarial features but in essence allows guilt or innocence to emerge from a searching judicial inquiry. The public trial is its culmination, not the sole arena of decision.
The function of the American adversarial trial is not, as every first-year law student is told, to discover the truth. It is to enable a jury to determine whether the accused is guilty of the crime he is charged with and nothing else. Trial procedure also has a limited purpose-to assure a fair trial by enforcing tournament rules. Some of these rules reflect basic constitutional safeguards like the Fifth Amendment's protection against double jeopardy and the Sixth Amendment's right to confrontation with accusers. But over the last 200 years, and especially since the rulings of the Warren Supreme Court, these and other safeguards handed down from British common law have been expanded and reinterpreted by courts and legislatures into the present network of complex and highly technical rules of procedure. A large part of American criminal trial practice consists of efforts by the lawyers to exploit these rules to their own advantage.
The trial format provides distinct advantages to the prosecution. Although some jurisdictions are moving to greater pretrial disclosure, in general the accused has few discovery rights. The prosecutor's only clear duty is to disclose evidence that exonerates him. The prosecutor alone determines which prosecution witnesses to call and in what order; the judge has no control or even awareness of these matters. And when it comes to final argument, the prosecutor has the last word to the jury.
The proceedings begin with selection of a jury. The American system allows each side to screen jury candidates for conscious or unconscious bias. Hence, both prosecution and defense strive for as much of a stacked deck as they can get in terms of a juror's race, sex, ethnic origin and educational level. A candidate's opinions on social, ethical and religious issues, let alone background knowledge of a crime, will precipitate a "challenge" for disqualification. The inevitable result is jurors notable for ignorance, lack of curiosity about the news and intellectual mediocrity.
Witnesses in an adversarial trial always belong to one side or the other. There are no effective rules against coaching or rehearsal of testimony. Expert witnesses in particular are little better than mercenaries paid to give slanted testimony. Direct examination proceeds in the most awkward and stilted way possible. Witnesses are required to respond to tightly phrased questions that are supposed to be "guiding" but not "leading"; each is designed to lift the curtain on one narrow aspect. The last thing a witness is allowed to do is tell an uncoached story in his own words.
The free flow of information to the jury is restricted in other ways. One obstacle is the hearsay rule-a gag on words the witness has heard spoken by others. This relic of Anglo-Saxon jurisprudence has in recent years been "constitutionalized" by the Supreme Court. In a series of byzantine rulings, the court has brought some but not all hearsay testimony under the Sixth Amendment's requirement of confrontation with accusers.
Another obstacle, now unique to the United States, is inadmissibility of illegally obtained evidence. This exclusionary rule, derived from the Fourth Amendment's prohibition of illegal searches and seizures, is a 20th-century Supreme Court implant aimed at policing the police. Since there is little or no intrinsic connection between the evidence itself and the means of obtaining it, the rule is now being modified by federal crime legislation. Nevertheless, it has been expanded by a grotesque "fruit of the poisonous tree" doctrine which excludes legally obtained evidence deduced from an illegal source.
Equally irrational is the way the courts have extended the Fifth Amendment from its original purpose of preventing forced confessions under torture or duress to prevent a defendant from testifying in open court. Judges commit reversible error if they even comment on a defendant's refusal to the jury, and lawyers have no compunction about invoking Fifth Amendment rights against self-incrimination to prevent their clients from cooperating with the police.
The Fifth Amendment also obstructs introduction of testimony freely given in noncriminal forums like congressional investigations unless under grant of future immunity. But its most bizarre extension to date was when the Iran-Contra special prosecutor forbade his own staff from reading transcripts of congressional hearings and press accounts, or listening to the car radio, lest it infect their questioning.
The adversarial format is at its worst in the ritual of cross- examination. Its characterization by the legal scholar J. H. Wigmore as "the greatest engine ever invented for discovering the truth" may be accurate in the restrained atmosphere of London's Old Bailey but not in the aggressive environment of an American criminal court. A witness who gives as frank and honest a statement as his recollection will permit can expect to have his credibility derided and his efforts to explain cut off as unresponsive. The cross-examiner will try to force his answers into a yes or no straitjacket so he can later be forced to recant for inconsistency. Far from narrowing testimony down to a hard core of fact, cross-examination more often confuses the jury. This is precisely what the cross-examiner intends-his aim is not to elicit the truth but to discredit the witness.
Given the artificiality of the adversarial format, the American criminal trial often degenerates into what Judge Marvin Frankel calls a "sport-game" in which defense lawyers use every technicality to overcome the tactical and material advantage enjoyed by the prosecution. The inert American jury is required to make a judgment after listening to hours of one-sided testimony from each of the opposing parties, punctuated by objections, motions, strident declamations by counsel, and sudden adjournments to enable the judge to rule on disputes over law and procedure.
Presiding over the courtroom and to the outside world very much in control is the dignified and imposing figure of the judge. But despite his black robes, gavel and elevated position on the bench, the American trial judge since colonial days has had little real power. To again quote Judge Frankel: "American judges generally act as passive umpires....Lawyers produce, direct and dominate the trial process." Authorities agree that the role of the judge is limited to ruling on admissibility of evidence, settling procedural disputes, advising the parties and the jury on the applicable law, and seeing that the lawyers observe the tournament rules.
American trial judges have almost no power to insure that the full facts of a case, free of misrepresentation by counsel, are given to the jury. They cannot comment on the credibility or weight of evidence. (In stark contrast, British judges sum up the case for the jury.) They cannot stop defense counsel from introducing preposterous alternative crime scenarios with no hard evidence in support, as in the O.J. Simpson case. If they intervene too actively with clarifying questions, they risk being reversed on appeal for "straying into advocacy." They are rules referees and nothing more.
As Professor Gordon van Kessel has emphasized in his classic 1990 monograph on comparative criminal trial procedure (to which the writer is deeply indebted), American criminal lawyers are infinitely more contentious, unscrupulous and dedicated to winning at all cost than their British and continental counterparts. Professional codes and standards legitimize ritualized aggression and sharp practice. The model rules of conduct of the American Bar Association stipulate that the lawyer's primary duty is to the client, not the court. Supreme Court Justice Byron White even stated in an opinion that defense counsel "...is under no obligation to seek the truth, and if he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, this will be the normal course."
In this permissive atmosphere of adversarial conflict, the U.S. criminal justice system would long since have broken down were it not for the device of the plea bargain. This euphemism for a forced confession in exchange for a reduced sentence saves the system enormous expenditures of time and money and insures rapid disposition of 90 percent of all criminal cases. Plea bargaining also mitigates the vindictive aspects of prosecution by reducing it to a negotiating exercise. If confined to individual cases, the harmful aspects are limited. However, once transformed into an instrument for convicting conspirators and co-defendants, it can lead to severe miscarriages of justice. A suspect-often the ringleader-who gives the prosecution everything it wants in the way of testimony implicating his confederates may get a far lighter sentence than persons only reluctantly or peripherally involved.
But perhaps the most bizarre feature of American criminal justice is the straitjacket on appeals. State appellate courts do not examine the entire record of a conviction to see if the evidence justified the verdict but only whether the accused got a fair trial. In the past, this has not only resulted in execution or life imprisonment of the innocent but in solidifying the importance of procedural technicalities. Appellate courts unable to review on the merits have been forced to strain for procedural error in order to reverse an unjust conviction.
The British system preserves the adversarial format but within a framework of judicial supremacy that makes it work. Britain has no written Bill of Rights like ours, but laws and custom reflect most of its substance. Suspects are given the customary "caution" and have the right to remain silent, though, in the British culture, they are well advised to testify: Why would an accused remain silent if he has nothing to hide? Prospective jurors are assigned from a pool and cannot be questioned by defense counsel. Barristers retained by each side to try the case are insulated from both defendant and witnesses before and during the trial. Evidentiary rules are pragmatic-hearsay may be admissible, and illegally obtained evidence is excluded only if the source casts doubt on its authenticity.
The bewigged and scarlet-robed British judge maintains strict courtroom control. While allowing considerable latitude in questioning, he will not tolerate hectoring of witnesses, strident rhetoric, misrepresentation of evidence or dilatory motions and objections. If testimony is confusing, he will intervene with questions. Procedural motions and questions of law are ruled on verbally after the law books are handed up to the judge. Above all, a British judge has full power to comment on the credibility of evidence and is required by law to sum up the case for the jury. If there is a serious discrepancy between the evidence and the verdict the entire record will be reviewed on appeal.
When we turn to continental Europe and other parts of the world that follow the Roman or civil-law tradition, the differences in procedure are so striking that even American legal commentators, who should know better, still label it "inquisitorial." Less encumbered with procedural technicalities than the adversarial model, civil law is both more thorough and informal. Its essence is a judicial inquiry that starts with the police investigation of a crime and ends in a public trial that is the culmination of the process rather than the sole arena for determining guilt or innocence.
The process consists of roughly three phases-the initial police investigation; an examining phase conducted by the public prosecutor or an examining magistrate; and a public trial before a mixed tribunal of professional and lay judges. The examining phase-the key to the process- is a far more thorough investigation of the crime, including the conduct of the police, than the perfunctory proceedings of the American grand jury. Its purpose is to screen out all suspects except those clearly implicated and determine whether there is enough evidence to warrant bringing one or more of the suspects to trial.
Much of the examining phase is devoted to prolonged and often repetitive interrogation by the examining official of witnesses, police, forensic experts and anyone else who can throw light on the crime or the circumstances behind it. Testimony is normally not under oath, as in American proceedings, since it is thought to inhibit the flow of narrative. Anyone summoned to give testimony, including any suspect, may have his lawyer present. But the examining magistrate does the interrogation.
Everything relevant-police findings, forensic results, testimony of witnesses, personal histories-goes into the examining official's dossier, or evidentiary record. There are no exclusionary rules; relevance and credibility are the sole tests. The examining official studies the dossier, weighs each item for what it is worth, orders additional lines of inquiry where necessary, and then decides whether it adds up to a prima facie case. If it does, the suspect's lawyer is given access to the dossier so he can prepare the defense-a sharp contrast to American procedure where the accused has few discovery rights.
The civil-law trial is conducted before a tribunal consisting of from one professional and two citizen judges for lesser crimes to a greater number of both in capital cases. The professional judges are civil servants; the lay judges well-educated citizens of good standing. Lawyers for prosecution and defense sit back on opposite sides of the courtroom. Responsibility for determining the order of proof and which witnesses to call and in what sequence rests with the president of the tribunal. Witnesses are considered the court's witnesses regardless of who requests them; expert witnesses are usually picked by the court.
At the trial, the tribunal, led by the president, conducts the questioning of witnesses, including police and forensic experts. After the tribunal completes its questioning of a witness, the accused may either make a rebuttal statement or have his lawyer ask additional questions. Cross-examination in the adversarial sense does not exist, except in Italy, and to a limited extent elsewhere. There are no exclusionary rules as such except for plea bargain testimony, which is regarded as hopelessly tainted. Guilty pleas rely on the court's leniency.
The rights of suspects in civil-law jurisdictions are well protected but not in the same way as in adversarial systems. The process itself is a safeguard since its essence is objective inquiry, not accusation based on one-sided accumulation of evidence. A suspect has the right to remain silent-but as in Britain, silence tends to imply guilt. He has discovery rights and more actual "confrontation" rights than in the American system since he can personally challenge both police and witnesses during the examining phase and in court. If he takes the stand, he will give unsworn testimony in his own words.
Can the rigidity and unfairness of the American adversarial system be alleviated by borrowing from British or continental models? At first glance, the answer would seem to be a resounding no. Too much of our system is locked into the Constitution as amplified and constantly reinterpreted by courts and legislatures.
But a closer look at the language of the Constitution reveals possibilities for reform that should be explored.
For example, the linkage of the Fourth Amendment to admissibility of illegally obtained evidence dates only to 1914 in federal courts and to 1961 in state courts. Disciplinary penalties with provision for severe civil-liability judgments would be a far more effective deterrent to law enforcement violators than an artificial trial impediment that lets the criminal go free. (The inability of the prosecution in the O.J. Simpson case to introduce evidence of O.J.'s attempted getaway, with disguise, a large sum of money and clothes packed for an escape was a disgrace to the system.) The Supreme Court could abolish this aberration with a single unanimous opinion and take out the grotesque "fruit of the poisonous tree" doctrine along with it.
The archaic hearsay rule which excludes the type of information used by governments, businesses and ordinary citizens in making the most important decisions is not grounded in the language of the Sixth Amendment at all; its linkage could and should be eradicated by legislation. Elsewhere in the world, now even in England, the test of hearsay testimony is relevance and credibility. We should follow suit.
The most important steps toward improving the efficiency of the American criminal justice process would be to restore the power of the trial judge over the courtroom and curtail the dominance of the lawyers.
Few if any of these changes would require legislation and none involves tampering with the Constitution. There is no reason why juror selection should be subject to routine questioning and challenge by trial counsel absent convincing evidence of bias or conflict of interest. Federal and state judges should have wide latitude to question witnesses, comment on the credibility and relevance of evidence, and sum up the evidence for the jury in the same way as their British counterparts. Federal judges already have this power; it is simply a matter of exercising it to the full. Once a pattern is established, state legislatures will have to follow suit.
While an American trial judge will never be able to take the lead in questioning witnesses because he has no dossier to guide him, there is no reason why he cannot intervene to clarify inconsistencies and flush out concealments. Judge John Sirica did this in the Watergate cases, risking reversal on appeal. The American people owe him a debt of gratitude for exposing the abuse of executive power that lay behind an apparent second-rate burglary.
Trial judges have inherent powers over the courtroom that they should exercise. They should be rigorous in permitting witnesses to give complete answers and in reprimanding attempts to cut them off or put words in their mouths. They can require lawyers to confine argument to the evidence. They can check misrepresentation of testimony to the jury. They can summarily dispose of frivolous objections and dilatory motions. They can banish still and television photographers from the courtroom and punish unauthorized contact with the media with stiff contempt sentences.
Other steps toward reforming the system: End mandatory sentencing without parole; dispense with the oath which is a deterrent to the free flow of testimony; bring sentences for political crimes into line with civilized standards; and most important of all, take the blinders off criminal appeals and open the entire record to review. Our adversarial system is breaking down and more prisons are not the answer. We should look to models that work, and borrow from them.
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