Note: (h/t: Legal Ethics Forum. see post by John Steele on Nov. 20, 2015 at 10:01am)
Judge Alex Kozinski has written an interesting, provocative and worrisome law review article that raises serious doubts about the fundamental fairness of the criminal justice process.See Preface Criminal Law 2.0 44 GEO. L.J. ANN. REV. CRIM. PROC (2015). One can get a sense of what the article is about from its first sentence: “Although we pretend otherwise, much of what we do in the law is guesswork.” Judge Kozinski discusses and raises serious questions about some “facts” that are taken for granted in the criminal justice system, including:
- Eyewitnesses are highly reliable.
- Fingerprint evidence is foolproof.
- Other types of forensic evidence are scientifically proven and therefore infallible,.
- DNA evidence is infallible.
- Human memories are reliable.
- Confessions are infallible because innocent people never confess.
- Juries follow instructions.
- Prosecutors play fair.
- The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
- Police are objective in their investigations.
- Guilty pleas are conclusive proof of guilt.
- Long sentences deter crime.
Judge Kozinski also makes proposals intended to spark discussion and debate about the following topics:
- Give jurors a written copy of the jury instructions.
- Allow jurors to take notes during trial and provide them with a full trial transcript.
- Allow jurors to discuss the case while the trial is ongoing.
- Allow jurors to ask questions during the trial.
- Tell jurors up-front what’s at stake in the case.
- Give jurors a say in sentencing.
- Require open file discovery.
- Adopt standardized, rigorous procedures for dealing with the government’s
- Adopt standardized, rigorous procedures for eyewitness identification
- Video record all suspect interrogations
- Impose strict limits on the use of jailhouse informants.
- Adopt rigorous, uniform procedures for certifying expert witnesses and
preserving the integrity of the testing process.
- Keep adding conviction integrity units.
- Establish independent Prosecutorial Integrity Units.
- Enter Brady compliance orders in every criminal case.
- Engage in a Brady colloquy.
- Adopt local rules that require the government to comply with its discovery
obligations without the need for motions by the defense.
- Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
- When prosecutors misbehave, don’t keep it a secret.
- Abandon judicial elections
- Abrogate absolute prosecutorial immunity.
- Repeal AEDPA § 2254(d).
- Treat prosecutorial misconduct as a civil rights violation.
- Give criminal defendants the choice of a jury or bench trial.
- Conduct in depth studies of exonerations.
- Repeal three felonies a day for three years.
Because Judge Kozinski makes reference to cases in which the Department of Justice hid evidence – for example see United States v. Stevens,No. 08-cr-231 (EGS), 2009 WL 6525926 (D.D.C. Apr. 7, 2009) – the DOJ wrote a response to Judge Kozinski’s article. For a copy of the DOJ response, click here. (h/t: Above the Law)
For a chilling book about prosecutorial misconduct see “Not Guilty: The Unlawful Trial of U.S. Senator Ted Stevens,” by Rob Cary. Mr. Cary, along with Brendan Sullivan and others at William & Connolly, represented Senator Stevens.