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November 30, 2007

Commentary on the end of innocence in the federal system

With apologies to Don Henley, the commentary referenced here comes from PENNumbra as part of its featured November responses to Ronald Wright's great article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005).  And here is the impressive set of responders with links to their pieces:

November 30, 2007 at 04:23 PM | Permalink


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I have always held off commenting on this issue, but here goes. I actually disagree with both authors. There are rational and good reasons for a decline in trials. I am not arguing that a judicially-imposed trial tax is a good thing. Nor am I arguing that the 6th amendment should be less vibrant. Certainly I am not taking the position that the government should be able to take random people off the street and hold them indefinitely because they are worried that people might be acquitted (as they seem to have argued in the past).

Instead, I need to start with the proposition that trials are about resolving ambiguous questions of fact. In civil trials, motions for summary judgment determine whether there really are any facts. In criminal trials the government can’t file such motions simply because the 5th amendment prohibits conviction based on the defendant’s silence. But, even so, before a criminal trial, both parties probably have some good-faith assessment of what “facts” they have, based on that assessment, they go forward with the trial. Sure, there are some unethical prosecutors out there that want to secure convictions regardless of the “facts” that they “have.” And, sure, there are defendants out there that want a trial regardless of the bad “facts” that they have, but I don’t think that this really plays in to the analysis.

As time goes on, however, the parties develop attitudes and strategies to dealing with certain sets of facts and law. Their strategies are informed by appellate decisions or previous experience with juries. In some jurisdictions, prosecutors know they simply cannot get convictions on certain drug crimes. Therefore, they may move to dismiss charges. Or, the prosecutor may make develop a policy that allows some people to seek some type of “diversion” and avoid a criminal record. In other places, the judiciary has fashioned some alternative to a trial that allows certain classes of people charged with a crime (especially drug and property crimes) to avoid convictions or jail time. (The fact that Massachusetts state courts have developed a policy of vacating certain convictions to achieve various policy goals seems to have irked the District Court judges who wrote immature editorials and seem to not even bother to address the federalist principle that states can vacate convictions regardless of what the feds want to do about it.) All of these things contribute to a decline in trials. True, these are not major felonies, but they do constitute the bulk of people arrested in state courts. Is this a bad thing? I say no: an ethical prosecutor should never take a case to trial that he would probably lose, and a realistic criminal defender should never take a case to trial that there is a good chance of a loss? Moreover, in my experience the equivalent of a motion for a judgment of acquittal is an extremely frequent end to a trial when it turns out that the state didn’t even portend to show all the elements of its case.

In the civil arena, with a lot more discovery, trials are generally over questions of credibility. Do people really want to resolve legal disputes on the basis of “credibility” findings? Maybe sometimes. But, for the most part, parties to civil litigation are not talking about “he said’ and “she said” but because most of the evidence is already known to both parties it really comes down to legal questions. Is this really a bad thing?

That said: I think that judicially-imposed trial taxes in the criminal system are generally bad.

Posted by: S.cotus | Nov 30, 2007 4:49:49 PM

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