December 12, 2016
"Adversarial Asymmetry in the Criminal Process"
The title of this post is the title of this interesting looking new article that I just noticed via SSRN and that is authored by Daniel Epps. Based on the abstract, this article seems both provocative and somewhat counter-intuitive. But I think current and former prosecutors might have particular insights concerning the article's claims. Here is the abstract:
It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue — which I call adversarial asymmetry — is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems — including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions — would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process.
In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution.
Our current approach combines an adversarial process with politically accountable prosecutors — yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.
December 12, 2016 at 06:14 PM | Permalink
The adversarial system originated in the disputation methodology of a church based philosophy. It was a method to arrive at some truth or conclusion on difficult questions.
1) It violates the Establishment Clause because of its religious origin;
2) it is an atavistic and ridiculous 13th Century method;
3) it has no external validation as a proper method; it does not even have established rates of inter-rater reliability nor test-retest reliability; these do not establish validity, but are necessary before testing validation;
4) it puts the verdict in the hands of fresh grads from law school, who know very little, and excludes the brightest and most experienced person in the court from participating in verdict finding, the judge;
5) empirically, it results in both unacceptably elevated rates of false positives and false negatives, contributing to our sky high crime rates;
6) it is expensive and turns a trial into a theater production, mostly to generate lawyer fees for worthless services, defrauding the tax payer;
7) it brings opprobrium on the lawyer profession, their looking like argumentative jackasses;
8) its stentorian tones, its location in a room that resembles a church, alienates the process from its owners, the tax payer, stupid people putting on a stupid show (bring back wigs);
9) it is probably irrelevant to the jury, as likely to decide a verdict on the likability of a chesty female lawyer as on the complicated facts;
10) it adds further delay in the legal system filled with lazy, do nothing, big government worthless tax sucking parasites, moving the cases ever so slowly.
Lawless, outdated, worthless, lawyer quackery, expensive, stealing of tax money. The adversarial system just sucks and should be scrapped entirely.
Inquisitorial judges, trained as judges, not as lawyers, should lead the investigation, with judge values, not lawyer values. They should be liable for their mistakes in professional tort liability, and judged according to professional standards of due care. The lazy and slow should be fired.
Posted by: David Behar | Dec 13, 2016 5:00:34 AM
David. I have a lot of empathy with your analysis though some of the following are more akin to the expressions used by federalist .... and are therefore not to be recommended.
"Lawless, outdated, worthless, lawyer quackery, expensive, stealing of tax money."
I would absolutely agree with Daniel Epps that "Our current approach combines an adversarial process with politically accountable prosecutors — yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice."
Posted by: peter | Dec 13, 2016 8:44:29 AM
Peter. Prosecutors are at will employees. Does everyone know that? Politically accountable means, the political appointee decides. The prosecutor complies, or gets fired without recourse.
So, spend $2 million to prosecute Martha Stewart for lying about a phone call in an informal visit by the FBI to her home, not under oath, to get the political appointee in the papers. Do not prosecute Hillary Clinton for massive lying to the FBI and to Congress, nor for the selling of her office.
Is that OK?
You did not like my characterization, its being overly blunt or rude. But which element do you find inaccurate?
Posted by: David Behar | Dec 13, 2016 9:38:06 AM
David. Yes, the often strong prosecutor link to partisan sponsors is both dangerous and misguided for any system of fair and unbiased justice to prevail. Prosecutors aught to be independent and politically neutral, in their professional lives at least. Too many perhaps see the role as a stepping stone to higher office or political career, believing that the highest number of successful prosecutions, and the strongest sentences, give them an edge to achieve their ambitions. They consciously or unconsciously forget the over-riding responsibility to protect the innocent and indeed all those they prosecute, from miscarriage of justice. They limit their efforts to ensure a prosecution succeeds rather than to survey the entirety of the evidence in a balanced and fair manner - not all I grant, but more than a significant majority from the evidence before us. So yes, the balance of power entrusted to prosecutors is wrong and produces bad outcomes for justice. Their influence on juries is worrisome and is not limited to the fair presentation of evidence. All this I agree with and of your condemnation of it. Language is important both for conveying accurately a point of view, and for credibility. You and one or two others should think more about that if you wish to maximize your influence on the thinking of others.
Posted by: peter | Dec 14, 2016 4:53:25 AM
Peter. Thanks for the advice. If you ever tried to take candy from a baby, you know it is very difficult, not easy. If you try to take the rent from a lawyer, it is impossible to do by argument of fact or of logic. I expect victims to rise up, and to crush the profession. I am providing the intellectual justification for such a movement.
The public came close in the 1980's. The profession showed itself to be very smart, by enacting Mandatory Sentencing Guidelines, saving itself from the wrath of the crime fed up public. The Guidelines delivered a 40% drop in crime, across the board. The biggest beneficiaries were black victims or non-victims. The profession is not only worthless, and selfish, it is racist, herding crime into minority areas, dumping toxic human beings into those areas. The lawyers are smart, and will find a way to weasel out of their certain doom, the next time around, too.
I like President Duterte of the Philippines. He is a lawyer but understands only public self help is effective. He cleaned up his town, one of the worst, as Mayor. He was given a mandate to take his act national. U.S. friends from there love him. They report an immediate difference, even upon arriving at the airport.
Trump will be weak. The guy after Trump is whom the lawyers need to worry about.
Posted by: David Behar | Dec 14, 2016 6:36:48 AM
David. I am sorry to say that our thinking diverges absolutely and irrevocably regarding the actions of President Duerte who is no more than a despot and thug. Vigilante actions and any form of state sponsored killings are abhorrent, break all codes of humanity and Human Rights, and are contrary to International Law. He should be hauled before the International Criminal Court for his crimes against Humanity, and one day might.
Posted by: peter | Dec 14, 2016 9:06:07 AM
Endless and pointless procedures for the criminal. Lawyer fees.
Immediate death for the criminal's victims. No lawyer fees.
Posted by: David Behar | Dec 15, 2016 12:16:16 AM