It is sometimes said that the trial– in a courtroom, perhaps with a jury but definitely with lawyers arguing the case from either side– is the greatest engine of factual discovery ever devised.
Despite the grandiosity, there is something to this. All of the rules, the procedures, whole professions that come into play, especially in a criminal trial, are there to tease some truth out of a welter of testimony and evidence. Of course it can go wrong– no trial is any fairer than the judge or jury that decides the case– but this elaborately formalized adversarial ritual truly is well-designed as a fact-seeking process.
However, trials are awesomely resource-intensive. The number of prosecutions taking place at any given time in this country dwarfs the number of trials we can conduct with the courts and the personnel we have. This is not a new development; for decades, our criminal justice system in practice has been based on plea bargains. The system (state or federal) can afford an actual trial in less than one case in ten, so the normal way to get the accused off the street is to get them to plead guilty to something– presumably something less serious than whatever crime they would be tried for if they were actually tried.
So, our vaunted right to a free and fair trial before a jury of our peers is mostly hollow. Criminal defendants are told in no uncertain terms that if they refuse a plea deal and make the government go to all the bother of conducting a trial, they’re taking a huge risk. The system is not embarrassed about its need to avoid trials; people who insist on them need to be taught a lesson! The conceit is that it was princely of the government to offer a deal.
That’s our system. Alternatively, we could spend ten times as much as we do on the trial-related parts of our criminal justice system in order to be able to try people routinely. Or, we could simply free the suspects we can’t be bothered to try. Neither of these is politically realistic; it will continue to be a plea-bargain system.
Working around the U.S. constitution isn’t always a great idea, though. What we have worked around here- the trial- is the part that was designed to get at the truth. The plea-deal system is designed to maximize throughput while keeping spending under control. These are legitimate goals in themselves, but they are being pursued at the expense of the truth-seeking function.
Unfortunately, the economizing goes deeper. Best practices in a plea-bargain world would include marshalling sufficient evidence to convince the suspect that they would be convicted at trial– but marshalling evidence is also expensive. It takes person-hours! There’s the chain of custody to worry about. There may be lab testing involved. You may need to prepare affidavits for people to sign, and then they may not sign them. Meantime, new cases are piling up… In a system that has already resolved itself to economizing on fact-finding, mightn’t there be a way to skip this evidence-marshalling stuff?
There is. Let’s say that Mutt and Jeff are suspected of a burglary. Or maybe there simply has been a burglary, and you have no clue who did it, but you know Mutt and Jeff. You pick them both up and interrogate them separately. You tell Mutt that Jeff already confessed for both of them, or that Jeff already blamed Mutt. Tell Mutt about the evidence you have, too, even though you have none, and then start talking about a deal. Your buddy ratted you out, Mutt; we have you dead to rights, but if you’ll plead guilty to x now it’ll be so much better for you than if you don’t!
And so we come full circle, or something, from being unwilling or unable to pay for the truth-seeking procedure (trial) to regularly deploying untruth instead. The practice is so widespread and notorious in Connecticut that there was recently a move in the state legislature to ban it. Senate bill 306, if passed, would have made it against the law here to use lies and threats instead of evidence and trials to put people in prison.
It didn’t make it through our state legislature. I guess that would be pretty controversial stuff these days, telling public servants that they can’t lie in order to gain advantage. At this point in our cultural devolution, curbing anyone’s right to lie is going to be fraught. If we disallow it in the interrogation room, what’s next? Disallow it on the campaign trail? On cable news? This will threaten our whole way of life!
Maybe we’re not looking at this right. Maybe our police detectives don’t actually lie to suspects while browbeating them into confessions; they just present some alternative facts. We’re not about to outlaw that, are we?
Eric Kuhn lives in Middletown.