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From Western Justice:

If we are truly concerned about the guilty being punished and the innocent being let free, then why encourage one side to hide the truth from the other side? Is the system about winning more than it is truth?

and (apropos of reciprocal discovery):

I know that defense attorneys are immediately concerned about such a reform, but if you are truly concerned about the guilty being punished and the innocent being let free (my concept of true “justice”), then I think this reform would allow a road to that path.

Um, no. There are preconditions to Justice (what WJ would call “true ‘justice'”, as opposed to what the criminal “justice” system provides) that aren’t met, and probably never can be.

Let’s say that Justice is “the guilty being punished and the innocent being let free”. What’s missing? We don’t want to execute non-violent first offenders, and we don’t want to let cold-blooded murderers off with a fine. So we’ll have to add appropriateness of punishment to WJ’s definition.

So now Justice is “the guilty being punished appropriately and the innocent being let free”. Simple enough, right?

Well, which guilty people should be punished? Those who hurt others? Those who hurt themselves? Those who behave antisocially? speak antisocially? think antisocially? Democracy is of no help in defining Justice, since the mass of people will define “guilt” based on their collective perceived self-interest.

There are original sources to which we could refer. We could punish those who violated the Ten Commandments, but whose interpretation? “kill” or “murder”? We could punish those who commit the Seven Deadly Sins, but don’t we commit the sin of pride by setting ourselves up to judge our fellow humans? We could follow Sharia — the Taliban is at least as certain of its definition of justice as WJ is of his.

Pretend that we could get over these hurdles and somehow agree on what conduct should justly be punished. Who then would decide what punishment is appropriate, and by what measure?

We might agree that punishment should be sufficient to deter the wrongdoer. But who among us has the omniscience to say what punishment is enough?

What should the other goals of punishment be? Incapacitation? Rehabilitation? Retribution? None of these penal goals is uncontroversial.

We can agree that, whatever the goals of punishment, punishment should not be greater than is necessary to accomplish those goals. But who among us has the wisdom to say what punishment is too much? What individual factors must we take into account before deciding what punishment is appropriate? Is it better to punish too much, or not at all?

In the criminal “justice” system we have to work with the laws that the legislature writes. Does anyone contend that our elected lawmakers, either individually or collectively, have the intelligence (to say nothing of wisdom) to answer the plenitude of questions that are necessary to even define Justice?

Set aside for a moment the problem that we’re not going to agree anytime soon on a question (“what is Justice?”) that people have been fighting over for 150,000 years. Pretend that your state legislature is suddenly touched by divine wisdom and omniscience, and revamps the penal code so that thinking people of conscience can feel secure in our belief that Law reflects Justice.

Even then, the result in the courtroom would be far-removed from this Justice. We lawyers work with the cases that the police present to the government, and with the evidence that human beings provide us. Human beings lie. Cops are not exempt. When cops lie to make a case, it is not an isolated incident; it’s business as usual (the cops who don’t lie are complicit in the other cops’ mendacity). In order for our hypothetical enlightened legislature’s just laws to be justly enforced, this has to change. Everyone providing evidence or testimony against a human being must unquestionably be a truth-teller.

So now let’s pretend that we can create a world in which all prosecution witnesses are truth-tellers. What obstacles are there to the quest for Justice in the criminal “justice” system?

The next obstacle is we lawyers. Our imaginary legislature can’t have accounted for every wrinkle in the human condition that might justify one sentence rather than another, and will have written the laws so that those of us closer to the facts can apply the law justly. So, even if our imaginary witnesses are truthful, each of us has to have the wisdom and omniscience to know what the just punishment is in the particular case. (If we have such wisdom we will, of course, always agree with each other about Justice.)

If one of us does not have those powers, or if one witness is not indubitably truthful, or if one legislator is not indisputably wise, then the system will fail to deliver Justice consistently. If we pretended in the real world that all of the legislators were honest, all of the witnesses truthful, and all of our adversaries wise, then a venal legislator, deceitful witness, or unfair prosecutor could singlehandedly wreak terrible injustice.

So we don’t naively pretend that this system of laws made by men is a magical instrument of Justice. We call it the best system, but it’s only best compared to all of the systems that rely on the wisdom of individual men to find Justice.

Instead of trusting any individual to be just, we trust the collective wisdom of groups. That is, we trust juries. We trust them (at least here in Texas) to decide the things that imperfect lawyers can’t agree on — “should he be on probation or in prison?”. We trust them to distinguish the untruthful witnesses from the truthful ones. We even trust them (though we don’t tell them this) not to follow unjust laws.

We don’t trust juries fully, though. Even in Texas, we don’t give them unfettered discretion to set punishment. Also, we give them only the information that we think they should consider in reaching their verdicts. The rules of evidence are about limiting the data that jurors may consider because, after hundreds of years of experimentation, we generally agree that some things must not contribute to the jury’s determination (for example, the promiscuity of the complainant or the unrelated criminal history of the accused).

Knowing what the jury must not consider, however, is different than knowing what the jury should consider or what weight the jury should give it. For that, we have advocates whose job it is to present the evidence in the light most favoring their clients, and to seek to counter the evidence favoring their adversaries’ clients.

Because we know that people are not omniscient and cannot be counted on to know what Justice is (or to act against their own self-interest in the cause of Justice), ours is an adversary system of justice. A perfect system? No. But a better system could only exist in a perfect world.


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