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February 20, 2014

"The Unbearable Lightness of Criminal Procedure"

The title of this post is the title of this interesting paper by Ion Meyn available via SSRN. Here is the abstract:

What is revealed about criminal procedure if we compare it to civil procedure?  Prevailing scholarship compares American criminal procedure to criminal procedure in Europe.  One of the most influential of these transatlantic comparisons is Gerard Lynch’s Our Administrative System of Criminal Justice.  Lynch arrives at the insight that the American criminal model of adjudication is not trial-based, but like the European model, administrative in nature. He further concludes that both models strike an adequate balance between the competing goals of efficiency and accuracy.  A comparison of American criminal procedure to its common law counterpart, civil procedure, confirms Lynch’s view that criminal the criminal process is administrative in nature.  But the comparison also leads one to question Lynch’s assessment that the American criminal model adequately achieves efficiency and accuracy.

Though historically similar, the criminal and civil pretrial process has evolved into two distinct models of administrative adjudication.  This article contends that civil procedure reforms identified due process features otherwise locked in trial and modified them for pretrial use.  These features of trial include the opportunity to compel and present facts, the application of the rules of evidence, and active judicial intervention to ensure fair play.  Though civil litigants do not typically proceed to trial, these reforms permit litigants to compel testimony and demand that legal claims have factual integrity.  But where reforms to civil procedure have imported due process into the pretrial process, criminal procedure has remained resistant to such innovation. Instead, during the criminal pretrial period, parties have unequal access to facts. Few rules ensure factual integrity.  And the court has little opportunity to review the pretrial record. As a result, separate and unequal procedural models govern the pretrial resolution of disputes within our courtrooms.

February 20, 2014 at 11:44 AM | Permalink


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They're different systems because they're not the same.
--There is no right against self-incrimination in civil cases. Accordingly, you can depose the defendant...which is a critical part of civil litigation. By contrast, prosecutors have no way of hearing the defendant's version of the facts unless s/he testifies...quite a rarity. I don't suppose Meyn will seriously argue that prosecutors should be able to depose criminal defendants in order to "lock their story in," only the other witnesses?

--The speedy trial right makes a civil-type system impossible...especially for complicated cases. Mine-run civil cases get bogged down for over a year with pretrial procedures--the complex ones can take multiple years.

--None of this is ultimately affordable. Prosecutor and defense budgets are squeezed as is. Now you want to put an entire layer of civil pre-trial rules (which, it seems, are designed to be inefficient) on top of that?

--Meyn seems to ignore the are constitutional safeguards in criminal cases that are not required in civil cases. In criminal cases, prosecutors are obligated to divulge material information favorable to the defense. A comparable civil provision would be a civil attorney's wet dream. Instead, we have to draft a bunch of discovery requests that (hopefully) roots out information favorable to our side.

Posted by: Res ipsa | Feb 20, 2014 1:41:30 PM

"There is no right against self-incrimination in civil cases."

But should there be? It's an interesting question that has taken on a certain resonance for me recently. If one reads the twin cases of Little Sisters of the Poor vs. Sebelius and Notre Dame vs. Sebelius I think it's a fair interpretation of the heart of the plaintiff's argument that there should be--as a normative claim--a right to avoid self-incrimination in civil law. There isn't now, to be sure, but the lack of a right to avoid self-incrimination in civil cases does indeed pose peculiar problems for the free exercise of religion.

And I think that speakers to the larger point the author is trying to make. In America we draw a bright and distinct line between civil and criminal law. This reality stems both from Constitutional imperatives (as Res ipsa correctly notes) but also from common law traditions. But should we? In Catholic legal theory such a distinction does not exist--"civil law" simply means "all secular law" both civil and criminal. And there is no distinction between a "civil sin" and a "criminal sin" or at least that idea doesn't mesh well with the Catholic notion of "mortal" vs "venial" sin.

I want to emphasis that on this larger question I'm not taking a position because I honestly haven't thought through all the parameters yet. I've simply taken the civil vs criminal distinction for granted. I think it is a worthwhile thought experiment to pursue, however, to wonder if one was building a legal code from an historical blank slate to consider the costs of the benefits of the American approach.

Posted by: Daniel | Feb 20, 2014 3:09:32 PM

Well, to be clear, there is a right against self-incrimination in civil cases. It's just that self-incrimination is taken to mean "subject oneself to criminal liability," not "subject oneself to civil or criminal liability." But you can't make a party to a civil suit testify if the testimony might criminally incriminate them.

Anyway, I agree with res ipsa that the idea is ill-conceived. While the professor means to increase the rights of defendants, I wonder how she would feel if prosecutors were allowed to avoids trials based on SJ motions in criminal cases. I'd say that would more than obviate the burden of increase discovery.

Posted by: Jay | Feb 20, 2014 4:01:28 PM


Some good thoughts to be sure, and perhaps a lot of my resistance to the idea stems from the fact that I've grown up under the American system.

But I do think that criminal law and civil law are fundamentally different animals. Civil law is primarily about pushing money around. Criminal law involves bringing the full force of the state against one of its citizens--and, in many caes, depriving that citizen his freedom or his life. And it's this latter distinction that explains why we have so many constitutional safeguards to check state power. For example, there isn't a need for a right against (civil) self-incrimination in civil cases because state abuse of power is not a concern in civil cases--but it is in criminal, and it's precisely state abuse that led to the right against self-incrimination. Same with the right to counsel...we're not concerned with it in civil cases because, unlike in criminal cases, we're not concerned about the state putting on show-trials. Same with public trial--we're not worried about star-chamber proceedings in civil cases.

I'm not necessarily saying that our system has it all right--frankly, I think our civil system has a lot to be desired. But I do believe that there is a critical distinction between civil and criminal law, and that parity in the procedures of both would be a mistake.

Posted by: Res ipsa | Feb 20, 2014 4:16:31 PM

@Jay. Yes, I could have been more clear. We can speak of the right to non-self incrimination in civil cases as a "right to non-discovery" and indeed in the Catholic moral tradition the individual possess a "right to secrecy" that is broadly accepted by scholars.

@Res ipsa. The problem is that the modern state acts more in a civil capacity anymore than a criminal one. This is specifically true when it comes to corporations--one can't put a corporation in jail, all one can do is fine it. A fine is a fine and whether it is a "criminal" fine or a "civil" fine is moot because a fine is all one has as a tool of punishment. This becomes even more problematic when one is talking about a fine to a religious organization. If the nuns in Little Sister of the Poor do not obey the rules of the Obama administration--rules they feel violate their religious beliefs-- they are going to get hit with a "civil" fine. Yet if the law was a criminal law the nuns would have a lot more procedural protection...even though the end punishment would be the same...a fine.

You correctly note that a great many of our Constitutional limits are a response to state abuses of power. It seems to me that the state has figured out a new way to abuse its power: label the legal action a "civil" one and thereby strip the person of most of their constitutional protections. The fact is that much of the punishment the state metes out today is "civil" punishment--the levying of a fine or the withholding of a benefit and there are basically no Constitutional limitations on that exercise of state power.

Posted by: Daniel | Feb 20, 2014 5:23:06 PM

The lawyer has trouble understanding, money is life. Every dollar of value has been generated by human labor and time expended from the limited amount allotted to the person. Even if I find a diamond, walking on the beach and become rich, that just means my 10 minute walk has added tremendous value in the sincere opinion of the buyer of the diamond, money being the sincerest form of valuation.

When the lawyer plunders the productive male in this country, he is also deterring an entire industry. Immunity grows the entire segment, liability shrinks the entire segment, not just the defendant. At this point only someone delusionally manic, idiotic, or exremely naive would ever start a business in the USA. There must be some lawyer service somewhere, come the first dollar of profit, the 100's of lawsuits come pouring into the small business.

The lawyer believes in tort liability to compensate, to prevent violence and to induce improvement in products and services. So how come the lawyer has made itself immune, depriving the profession of the benefits its preaches to everyone else?

Posted by: Supremacy Claus | Feb 20, 2014 9:18:33 PM

Res ipsa. I agree there are major differences between the systems. But I think you are too credulous when you imply that discovery issues are managed effectively in criminal cases by the State's "obligat[ion] to divulge material information favorable to the defense." Would that "favorable to the defense" were the standard actually applied by prosecutor's offices.

In fact, many if not most offices take the position that they are *not* required to turn over all "favorable" evidence, but only "Brady" evidence. Meaning not only (a) the evidence has an exculpatory tendency, but also (b) the evidence would make it reasonably probable that the jury might not convict if it heard the evidence. This is quite clearly insane; usurps the jury's function; allows a party advocate to decide what evidence is relevant/persuasive for the other side's case; takes advantage of a doctrinal anomaly in which the Supreme Court defined prejudice as part of the constitutional violation in Brady, rather than as a separate inquiry; ignores the fact that the prejudice inquiry was intended to be a retrospective view of how the evidence in question would have affected an actual, historical trial rather than a speculative prediction of how a piece of evidence might affect a future trial where we don't know what all of the other evidence will be; etc., etc. But it is regurgitated (and swallowed by many courts) regularly by prosecutors.

So maybe we don't need the civil rules. But we need something. Open file policies/ rejection of the "prosecutors decide what meets the Brady prejudice standard before the fact" approach would be a good start.

Posted by: anon | Feb 24, 2014 11:32:12 AM

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