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Reconstructing the Truth about Justice Sandra Guerra* Reviewing: Franklin Strier, ReconstructingJustice:An Agendafor Trial Reform. Chicago: University of Chicago Press, 1996 (reissue with new preface), 327 pp.

s an excursion into the failings of the U.S. adversarial system of rial justice, ReconstructingJustice might have provided an impetus for beneficial changes. Franklin Strier ambitiously takes a global view of both civil and criminal trial justice, discussing rules of procedure, evidence and attorney ethics, the jury system, and the roles of judges and attorneys and comparing these to their counterparts in the continental (primarily French and German), "inquisitorial" system. Although others have taken a similar approach in exploring the perceived deficiencies of the adversarial system, as compared to the inquisitorial system, 1 the book

Associate Professor, University of Houston Law Center, Houston, Texas, United States; B.A., Yale University 1985; J.D., Yale Law School 1988. I owe a debt of gratitude to my colleagues Irene Merker Rosenberg and Yale Rosenberg for their thoughtful comments on earlier drafts of this book review. I also wish to thank Amy Prater and Gregory Center for their research assistance.

1 E.g., Gordon Van Kessel, Adversary Excesses in the American Criminal Tria~ 67 Notre Dame L. Rev. 403 (1992); Ernst C. Stiefel & James tL Maxeiner, Civil Justice R~fbrm in the United States: Opportuni~ for Learningfrom "Civifized" European Procedure Imtead of Continued Isolation?, 42 Am. J. Comp. L. 147 (1994); Myron Moskovitz, The

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offers some unique and important proposals for reform, some of which would not be difficult to implement. It is also thoroughly researched and clearly written. Unfortunately, ReconstructingJustice suffers from several fundamental problems that prevent it from being taken seriously by legal reformers. First, Strier demonstrates open hostility toward the legal profession by making attacks on attorneys, some fair, but many not. Although the book appears to be directed at the public at large, 2 not lawyers and judges, the tenor of Sttier's criticisms may turn even general readers off. Moreover, excluding legal professionals from his audience, whether by design or by offensiveness, reduces the possible impact of the book as an engine for reform. This is particularly unfortunate since the book offers some insightful suggestions for change that attorneys and judges might consider seriously if presented in an evenhanded manner. Second, the book lacks credibility because of Strier's tendency to draw sweeping and questionable conclusions from insufficient information. Third, ReconstructingJustice lacks cogency by not giving its presumed audience of lay readers enough background information to enable them to follow the rather technical discussion. Finally, the book's comprehensive approach may go too far: Strier addresses too many tough issues in too little space with the consequence that inadequate attention is paid to some of the most important questions. At the outset Strier stakes his claim that "the adversariness of the system is just as likely to hide or corrupt the truth" as to discover it, and

o.J. Inquisition: A United States Encounter with Continental Criminal Justice, 28 Vand. J. Transnat'l L. 1211 (1995). The classic debate on adversarial versus inquisitorial justice features Abraham S. Goldstein & Martin Marcus, The Myth of Judicial Supervision in Three "Inquisitorial" Systems: France, Italy, and Germany, 87 Yale L.J. 240 (1977); John H. Langbeirt & Lloyd Weinreb, Continental Criminal Procedure: "Myth"and Realit/, 87 Yale L.J. 1549 (1977); Abraham S. Goldstein & Martin Marcus, Comment on "Continental Criminal Procedure,"87 Yale L.J. 1570 (1978); see a/so John H. Langbein, Comparative Criminal Procedure( 1977); John H. Langbein, Land without Plea Bargaining: How the Germans Do It, 78 Mich. L. Rev. 204 (1979); Mirjan R. Damaska, The Faces ofJustice and State Authority (1986); Mirjan Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L. Rev. 506

(1973). 2

Franklin Strier, ReconstructingJustice 9 (1996).

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that it is "optimally suited . . . for fomenting hostility and rancor. ''3 Citing the O.J. Simpson case as an example of the failure of the adversary system, he blames this failure on the "untoward influence of attorneys over the courtroom search for truth. ''4 While Strier surely knows that the Simpson trial was not a fair representation of the U.S. system of justice in any respect, he nonetheless accurately taps into the frustration many Americans feel about criminal (and civil) justice. The growing public displeasure with the law profession means that attorneys cannot ignore Strier's criticisms out-of-hand but should squarely address them and forthrightly search for solutions. 5 Thus, Strier is ultimately right to suggest a reconsideration of the basic paradigm that we have traditionally embraced for dispensing justice and goes on to offer some thoughtful criticism of the adversary system. Unfortunately, his delivery does little to win converts to his message. Strier seems to feel profound disdain for the legal profession, accusing lawyers of dishonesty, corruption, and "abject greed. ''6 At many points he makes the valid argument that the role of attorneys as "zealous advocates," singlemindedly pushing their clients' interests, results in obscuring the truth. But rather than criticize specific rules of ethics or other aspects of the adversarial trial system that may encourage overreaching, he describes five instances of blatant attorney miscond u c t - w h i c h were punished--and suggests that these examples are representative of the conduct of the entire profession. ¢ Strier's attack on the legal profession is wrong on several levels. First and most obviously, one does not prove pervasive corruption in an entire profession by generalizing from few examples of misconduct. Second, he fails to give the legal profession any credit for having pro-

3

Ia( at vii.

Ia~ 5 For a recent comparison of community views and legal doctrine, see Paul H. Robinson & John M. Darley, Justice, Liability, and Blame (1995).

6

E.g., Strier, supra note 2, at 272-73.

7 Ia~ at 150-51 (accusing prosecutors, defense lawyers, and civil lawyers of overzealousness).

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vided remedies in these cases of misconduct? As a practical matter, major reform of the adversary system does not occur without the support of the bar and the judiciary. Consider the explosive growth of the alternative dispute resolution (ADR) movement. 9 Strier explains that this salutary trend received important boosts from the American Bar Association, Chief Justice Warren Burger, the U.S. Congress, and state legislatures. 1° This discussion in effect concedes that lawyers, as well as judges and elected o~cials (often lawyers themselves), have recognized the need for alternatives to the adversary system and have taken the initiative to develop and implement them. Yet, at the same time, Strier steadfastly claims that lawyers resist change out o f "economic" self-interest alone, n Strier's discussion of the "abuse excuse ''n is similarly slipshod. H e begins by ca/ling 1993 "a year of infamy" for jury trials: Fueled by omnipresent media reports, four sensational criminal trials captured the public's attention. Each involved a serious charge: murder, attempted murder, or mayhem. Each defense attorney argued to the jury that the defendant was really a victim. Each defense worked) 3

s

Ia~ at 149-50.

9

Ia~ at 191-228.

l0

Ia~ at 193-95.

n Ia[ at 123. Another counterexample of what would appear to be disinterested judicial and legal activism is the enactment of federal and state sentencing guidelines. Federal Judge Marvin Frankel's elegant little book, Criminal Sentences (1973), criticized indeterminate sentencing and helped spur a national sentencing reform movement, Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1684 n.7 (1992). n In the tradition of Alan M. Dershowitz, The Abuse Excuse--And Other Copouts, Sob Stories, and Evasions of Responsibih'ty (1994). 13 Strier, supra note 2, at 105. The defendants were Lorena Bobbitt, inca note 15 and accompanying text; Eric and Lyle Menendez, inca note 16 and accompanying text; and Damion Williams, who was videotaped beating a truck driver, Reginald Denny, during the Los Angeles riots that followed the acquittals of the police officers who had b~ten Rodney King.

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Following a cursory sketch of each trial, summarizing the facts, charges, defense arguments, and jury verdicts, Strier concludes: Common to all these defenses--and perhaps a new Zeitgeist of jury trials--was a questionable thesis: Perpetrators of violent crimes are less culpable because they themselves were victims of some earlier abuse. The excusing abuse need not have come from the defendant's victim or even from any individual; general social or political conditions may be the source. There is another abuse here. Juries are abusing the judicial process and their role in it by swallowing wholesale the abuse excuse.14 Like the discussion of attorney misconduct, this attempt to illustrate jury "abuse" of the judicial process fails for several reasons. First, the short shrift given to the substance of these trials hardly provides sufficient information to persuade the reader of the correctness of the author's conclusions. Consider Strier's summary of the Lorena Bobbitt case: A second case involved Lorena Bobbitt, who cut off her husband's penis while he slept and tossed it out the window. Lorena's butchery was in retaliation for alleged prior physical and emotional abuse she suffered at the hands of her husband John. The jury acquitting her of mayhem believed that she too was a victim. 15 Second, not all of the cases involved acquittals based on such excuse defenses. For example, the first trials of Lyle and Eric Menendez, who killed their parents, resulted in hung juries, but Strier cites them as examples of jury abuse of the trial system. 16 A hung jury, however, simply means that the jurors could not reach a unanimous verdict on a particular charge.

14

Strier, supranote 2, at 106 (emphasisadded).

15

Ia[ at 105-06.

16

Ia( at

106.

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Third, the author claims that the jury's "abuse" of the system stems from its acceptance of the "questionable thesis" that "[p]erpetrators of violent crimes are less culpable became they themselves were victims of some earlier abuse. ''17 Presumably, Strier sees the Bobbitt case as an exercise of jury nullification that reflects the jury's incorrect assessment of the defendant's true "culpability" and the demands of "justice." However, later in the chapter, Strier acknowledges that there is no agreement on the propriety of jury nullification, is One person's courageous nullification is another person's anarchy. Thus, the discussion of these highly publicized trials fails to acknowledge that the juries may have been doing exactly what some people believe they should do: refuse to apply the law in cases in which its enforcement would not serve the ends of justice. These are not clear examples of "jury abuse" in the same way that knowingly convicting an innocent person would be, or even acquitting someone for a reason like racial bias against the victim. Moreover, Strier's discussion of these cases is not illustrative of any of the legitimate concerns about the jury system that he identifes in his chapter on juries or in the final chapter, "A Blueprint for Reform." Strier's principal concerns focus on the practices that limit the quantity and quality of the evidence that jurors review and their practical ability to retain and evaluate the evidence. In this regard, he recommends that courts should provide jury instructions on the applicable law before the presentation of evidence. He also suggests that jurors be allowed to take notes, ask questions, and review transcripts or videos of witness testimony. 19 These sensible proposals are some of the most important recommendations that he makes, but they have nothing to do with jury nullification. Indeed, Strier does not address jury nullification at all in his "Blueprint for Reform. "2° In short, the discussion of sensational trials and jury nullification makes for a shaky foundation on which to rest an otherwise thoughtful assessment of the jury system.

~7

I~

18

Ia[ at 1 2 8 - 3 1 .

19

I d at 1 1 7 - 2 1 .

zo

Ia~ at 2 2 9 - 3 0 1 .

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Later in the book Strier makes the controversial suggestion that jurors in "complex" cases, both civil and criminal, should be college graduates. 21 Arguing that college students learn the same cognitive skills required of jurors in complex cases, Strier concludes that a minimum education requirement would "render better informed and thus more just verdicts. "~a He dismisses the effect such a rule would have in disqualifying most lower-income people, a disproportionate number of whom would be minorities: "This is not elitism; it is merely functionalism. ''23 Aside from the unfairness of excluding large segments of the community and the unconstitutionality of not making available a jury of the defendant's peers, the loss of diversity would bring with it an increased risk of error on the part of a jury that would not be able to draw on different cultural, racial, and socioeconomic backgrounds. Strier's proposal also ignores the fact that the single most important task a jury performs is to assess witness credibility, a skill that is not necessarily honed by formal education. Assuming a case could be made for educational requirements in highly complex litigation, Strier fails to make it. The book's ambitious scope is at once its greatest strength and its greatest weakness. On the one hand, the author's holistic and comparative approach makes it possible for readers to see the relationships between elements like the rules of evidence and the roles of judge, counsel, and jury in adversarial trials. On the other hand, the book tries to critique every aspect of the adversarial process. While policymakers should have the ability both to "see the big picture" and to scrutinize the finest details, a book can rarely do both well. The treatment of the "exclusionary" rules of evidence provides a perfect example. Strier identifies several types of rules that result in keeping "relevant" evidence from juries: (I) rules that exclude evidence that may "unfairly bias litigants";24 (2) hearsay rules;25 (3) constitutional

zl

Id. at 245-47.

22

I~Lat 247.

23

la~

a4

Ia( at 122, 242.

zs

Ia( at 123, 157-58, 242-43.

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exclusionary rules; 26 (4) character evidence rules;z7 (5) evidentiary privileges;2s and (6) rules that require witnesses to answer only leading questions which call for "yes" or "no" answers, z9 He argues that these rules should be relaxed or eliminated in order to provide juries with all the relevant evidence and to encourage testimony by the accused in criminal cases. ~° Most of these grounds for exclusion could themselves fdl an entire book. Strier's approach, instead, is to touch upon each of them briefly and tie them together with a unifying t h e m e - - their adverse effect on the search for truth. In a book of over three hundred pages, however, he devotes a mere ten pages or so to a radical critique of this area. 31 And he does so by ignoring, or giving only passing attention to, the important values protected by each type of "exclusionary" rule. For example, he criticizes those Federal Rules of Evidence that exclude evidence considered to have the potential for unfair prejudice that substantially outweighs its probative value. 3z Consider one such rule,

z6

Ia~ at 157, 243.

z7

Ia~ at 243.

z8

Ia~ at 159.

z9 Ia[ at 219, 268. Of course, Strier is plainly wrong in suggesting that witnesses are not allowed to provide narratives of events they have witnessed and must answer only "yes" or "no." This practice applies only to cross-examination. On direct examination, witnesses are expected to provide narratives with minimal guidance from the questioning attorney. Fed. R. Evid. 611(a) ("The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth . . . . "); Fed. tL Evid. 611(O ("Leading questions should not be used on the direct examination of a witness . . . . Ordinarily leading questions should be permitted on cross-examination."). 30

Strier, supra note 2, at 242-43.

3t

Ia[ at 121-24, 157-60, 219, 242-43.

32 Fed. IL Evid. 403 (excluding evidence when unfair prejudice substantially outweighs probative value); Fed. R. Evid. 407 (excluding evidence of subsequent remedial measures); Fed. tL Evid. 408 (excluding evidence of compromise and offers to compromise); Fed. tL Evid. 409 (excluding evidence of payment of medical and similar expenses); Fed. tL Evid. 410 (inadmissibility of pleas, offers of pleas, plea discussions, and related statements); Fed. IL Evid. 411 (excluding evidence of liability insurance).

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which bars evidence on a civil defendant's insurance coverage. 33 Strier argues that since jurors often wrongly believe that the defendant carries insurance and may impose excessive damage awards on the assumption that the insurer, not the defendant, will pay, courts should admit evidence on coverage. ~ This argument fails to consider that jurors are called u p o n to determine fault without regard to ability to pay damages. While such evidence m a y arguably be "relevant, "35 it is generally considered inappropriate to disclose insurance coverage for fear that the jury might award damages even if the defendant were not actually at fault. A rule admitting evidence on insurance does not follow logically from Strier's concern; the system would be better served by instructions on the irrelevance o f insurance coverage to a finding o f fault and on the impermissibility o f making the assumption that the defendant is insured. Strier also argues rather vaguely that we should "severely" limit the hearsay exclusion. 36 Although he emphasizes the ability o f lawyers to obscure the truth by excluding relevant evidence based on ostensibly ill-conceived hearsay rules, 37 he fails to provide a single example o f important hearsay evidence that has been excluded improperly. 3s

33

Fed. tL Evid. 411.

34

Strier, supra note 2, at 242.

3~ Strier insists that this evidence is "relevant." Ia( The Federal Rules, however, define "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The issue before the jury in a personal injury suit, for example, is whether the defendant was at fault. The fact that the defendant is insured (or not) does not tend to make "any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Strier, supra note 2, at 243. 37 Ia( at 219 ("The hearsay rule and other evidence exclusions enable the attorneys to effectuate this information blockade."); ia~ at 157 ("Decisive information may be withheld [because of the hearsay rules], vitiating the search for truth and any semblance of an informed verdict."). 38 Instead, he argues that the behavioral assumptions underlying the "spontaneous exclamation" exception to the hearsay rule are untested and, thus, these statements may be erroneously admissible under the exceptions to the hearsay rule. Id. at 123.

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Evidence scholars universally recognize that the myriad "exceptions" to the hearsay rule virtually swallow it up. 39 Indeed, the Federal Rules of Evidence provide two "catch-all" exceptions that give courts the discretion to admit other hearsay evidence not covered by the exceptions. 4° In the end, Strier fails to persuade. Nevertheless, Reconstructing Justice succeeds in some respects. Strier offers a global perspective often missing from legal commentary and identifies fundamental problems in the justice system that deserve the full attention o f the bar, the judiciary, and the public. The uneven distribution of resources between attorneys representing poor criminal defendants and prosecuting attorneys should not be tolerated in a free nation. 41 This basic problem alone lends strong support to Strier's suggestion that we should empower judges to play a more active role in trials, thus minimizing the impact o f attorneys (and resource disparities) on outcomes. His suggestions for improving jury factfinding also further the goal o f reaching accurate and just results. Strier's account would be far more compelling, however, if he did not indulge in attorney bashing or hang his arguments on sensational cases.

39 Fed. IL Evid. 801(d) (admitting prior statements of witnesses and admissions by parry-opponents);Fed. R. Evid. 803 (listing 23 types of exceptions and a "catch-all" exception); Fed. R. Evid. 804 (admitting 4 types of statements for unavailabledeclarants and including a "catch-all" exception); see aho Mason Ladd, The Hearsay We Admit, 5 Okla. L. Rev. 271,280 (1952) ("The multifold exceptions to the hearsayrule bring into almost everytrial hearsayevidencewhich performs the direct function of providing proof of the fact asserted in the statement."). 40 Fed. tL Evid. 803(24); Fed. tL Evid. 804(5) (admitting statements not covered by any of the rules in 803 or 804 but having "equivalent circumstantial guarantees of trustworthiness"). 41 Strier makes a convincingcase for decreasingthe importance of counsel in the trial process precisely because the "mismatch" in resources can result in inaccurate decisions. This is true, he argues, whether the defendant has greater resources,as in the Simpson case, or whether, as is more common, the prosecutor has. Strier, supra note 2, at 75-82.