Asking the Right Questions
NAFTALIS, GARY P.
Asking the Right Questions Virtual Justice: The Flawed Prosecution of Crime in America By H. Richard Uviller Yale. 318 pp. $30.00. Reviewed by Gary P. Naftalis Former Federal prosecutor;...
...But he recognizes the intolerability—in a system premised on the rule of law—of police using illegal methods, even to catch the right perpetrator...
...little by little, here and there, we will all work to narrow the gap between v irtual and actual justice...
...Most of these notions, though, are hardly well-informed...
...His solution: Follow the British practice and leave it to the judge to determine when disallowing certain evidence is warranted...
...turn on eyewitness identifications and...
...They tend, rather, to be based on incomplete or inaccurate data gleaned from media reports or the simulated realities of novels, movies and TV shows...
...Significantly, the Simpson trial did not do much to educate Americans about the true nature of criminal prosecution: the aberrational handling of the case bore little resemblance to the way effective judges, lawyers, police officers, and witnesses ordinarily behave...
...This is not a hypothetical issue...
...Especially strangers...
...I must conclude, w ith regret...
...On the other hand, despite some dubious results—often in high-profile cases —for the most part our jury system works well...
...By contrast, he portrays defense attorneys as individuals who feel obliged to lie for their clients, or at least to speak without personal conviction...
...Furthermore, certainty of identification does not correlate with accuracy of identification—popular mythology notwithstanding...
...He has asked the right questions and supplied original and insightful answers...
...Especially strangers of a different race seen briefly under stress...
...fewer guilty defendants would escape their just deserts...
...H. Richard Uviller's book is a major contribution to the literature on the American criminal justice system...
...At bottom...
...the Arthur Levitt Professor of Law at Columbia University's School of Law, has pondered them for the past 40 years?first as a highly regarded prosecutor in the Manhattan District Attorney's office and later as a respected scholar, teacher and reformer...
...Uviller is intrigued, therefore, by the Continental inquisitorial method, where the judge engages in disinterested investigation and fact-finding...
...Indeed, Uviller has greater faith in the integrity of judges than in the American adversary system...
...To be sure, it is appropriate to admonish advocates who are more interested in publicity than professionalism, and those who follow theirclients' wishes blindly...
...Uviller himself is not yet ready to do battle for an inquisitorial system...
...Such obstacles to truth, he feels, ought to have a quite narrow scope and effect: "I'm not sure that the guilty should go free or the innocent be shipped off to jail in the service of the values supposedly advanced by the privilege...
...coauthor...
...Recall how many millions of television viewers religiously followed the daily doings at the O.J...
...In addition, the problem of "an unknowable number" of innocent defendants being convicted might well be lessened if trials were conducted by a dispassionate jurist with no stake in the outcome...
...He writes: "1 am increasingly troubled by a system that leaves so much to the fortunes of battle, the distribution of skills and resources, the luck of the moment...
...In his discussion of jury verdicts the author voices a concern about innocent people being convicted...
...Still, there are legitimate reasons to question the performance of the criminal justice system...
...The exclusionary rule also offends his belief that trials should be searches for the truth regarding a defendant's guilt or innocence, not inquiries into how law enforcement personnel carried out their jobs...
...The very idea that jurors are the best judges of witness credibility lacks an empirical basis in his view...
...I deem it an outrage that to protect a murderer's trust in his therapist, lawyer or priest (however valuable their services may be), we allow an innocent person to be convicted by a jury who will be kept ignorant of the true murderer's privileged confession...
...The Grand Jury: An Institution on Trial" AMERICANS have an insatiable fascination with the criminal justice system...
...Somewhat sentimentally, he is sympathetic to the "eager, idealistic young prosecutors...
...His writing is both witty and wise...
...To be honest...
...many traditional blue-collar criminal cases (robbery, rape, assault, etc...
...Virtual Justice will be of interest to anyone concerned about justice in this country—and that should be everyone...
...Uviller's suggestion clearly deserves serious consideration...
...Worst of all, the presence of counsel creates the "pretense of remedy [and] not only does nothing to help, it may aggravate the problem by reducing concern...
...Misidentifications are made as frequently by those who are sure as by those who are equivocal...
...Many of us would still entrust the determination of guilt to 12 fellow citizens rather than to one professional...
...That criticism goes too far...
...As I see it, this is a sea change that undercuts Uvil-ler's point...
...At the end of the day...
...He correctly suggests that setting a criminal free because the constable blundered is somewhat counterintuitive...
...And he is skeptical that other sanctions (the loss of pay or suspension, for instance) would deter police misconduct...
...Not only has crime itself long been one of the primary concerns in this country, but everyone appears to have a passionate opinion on how its prosecution works or ought to work...
...Uviller distrusts the ability of our adversarial approach to promote real rather than virtual justice...
...We must take some comfort in the common perception that the criminal justice system, with all its improvisation, its excesses and failures, adjudicates criminal charges in a manner that—by and large—seems to win public approval...
...Uviller correctly notes the fallacy behind the Supreme Court's decision allowing counsel to be present at postindictment lineups...
...in this incisive, provocative and elegantly written book, he comprehensively critiques the system...
...There remains much validity as well to John H. Wigmore's assertion, in his mul-tivolume Treatise on Evidence, that adversarial cross-examination "is beyond any doubt the greatest legal engine ever invented for the discovery of truth...
...For example, he sees scant social utility in most nonconstitutional privileges (e.g., doctor-patient, priest-penitent) that withhold relevant and often key facts from the jury...
...The lawyer cannot cross-examine the putative eyewitness at the lineup, thus he cannot prevent a mistaken identification...
...The criminal defense bar today is a dramatically different animal than it was 25 years ago...
...who] take seriously their obligations to a just result...
...Simpson trial, and the seemingly endless commentary by a mind-boggling variety of talking heads...
...After giving it a carefully nuanced mixed review, he observes: "Too much of what passes for criminal justice in this country is only a close approximation"- -what he terms "virtual justice...
...He acknowledges that the vast majority of people are content with what we have, and that his own informal polling indicates judges think juries get it right "more than 75 per cent of the time...
...he says, "that we probably must learn to live with our own brand of virtual justice, to find satisfaction, if not with the special talents and exceptional insights of juries, then in a society that empowers its ordinary members, in disparate array, to sit as judges, qualified only by their unbiased sense of plausibility...
...Facts are better found by an earnest investigator than by a randomly assembled group of spectators...
...He doubts a lay jury's ability to accurately sort out the truth after an adversarial presentation...
...He believes that under an "investigation-driven adjudication system...
...The author is similarly unhappy with the judge-made rule that excludes from the jury's consideration evidence obtained in violation of the defendant's constitutional rights...
...Especially strangers of a different race...
...The image of a magistrate ferreting out the truth without fear or favor, idealized long ago in the movie Z, is undeniably attractive...
...To me, serious fact-finding takes place through disinterested investigation, not in a clash of opposed interests...
...Closer analysis and study is needed before we jettison it...
...It now attracts some of the best and brightest, many of whom are distinguished former prosecutors...
...as Uviller stresses, they are notoriously unreliable: "The major problem is that people are not very good at recognizing other people...
...Moreover, he is particularly critical of the defense bar for all too often emphasizing appearances and perceptions to a jury, instead of underlying facts...
...But in my experience the ethics and morals of the defense bar are quite high and equal to those who carry the prosecutorial mantle...
...Uviller is irked by rules and procedures that detract from the accuracy of verdicts without providing substantially countervailing societal benefits...
Vol. 79 • August 1996 • No. 5
