Think about the oldest and most familiar principles of American law, property and proportional liability, in a new and surprising way, and learn to apply economic reasoning to an especially important and interesting aspect of life.
The Disappearing Trial
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Property and Liability: An Introduction to Law and Economics
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Criminal Procedure
Criminal liability means that crimes have prices, and how these prices are exacted in practice from people who take rights without compensation is the problem of criminal procedure. How do judges know who is guilty, and what prices guilty people should be made to pay for their crimes? Around the world, two major systems of adjudicating guilt and punishment, the adversarial and the inquisitorial, have evolved over centuries to answer these questions in individual cases, with very different procedures to assess guilt and punishment that express different commitments to truth and fairness. All these procedures are expensive, and governments everywhere must confront the problem of processing large caseloads with limited resources. This has led the inquisitorial systems of Europe and the adversarial systems of England and the United States to new procedures of adjudication that may be reducing the differences between them.
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Richard AdelsteinProfessor
Department of Economics
Hi everybody. Welcome back.
In this final segment of the course, I'd like to return to the problem of criminal
liability and in particular, to the problem of completing the second half of
the criminal transaction by adjudicating the offender's guilt.
And by determining the punishment price or liability price that will be imposed
upon that offender to compensate for the moral costs of the offense.
In the United States and indeed pretty much everywhere in the world, the default
means by which this second half of the transaction is undertaken is, at least in
principle, a criminal trial. In the United States, indeed, the Sixth
Amendment to the Constitution guarantees that every person that every person whose
accused of a, of a crime will receive a speedy and public trial by an impartial
jury. So not only the trial, in principle, the
default mode of completing the second half of the criminal transaction.
A trial is guaranteed to any defendant who's accused of a crime.
But, now, criminal trials in the United States are hugely expensive.
They take a great deal of time, they involve a great deal of resources,
lawyers. Many lawyers in some cases, have to be
engaged. Jurors have to be engaged.
Judges and legal facilities have to be engaged.
And all of the costs that are associated with gathering and producing and
processing the evidence that will form the basis of the trial.
All of these things cost a great deal of money.
Moreover, the outcomes of criminal trials are highly uncertain in large part
because there are so many rules constraining what kind of evidence can be
brought to bear in a trial, how that evidence can be used, and what weight
juries must or can't place on particular pieces of evidence.
As a result of the fact that trials are colossally expensive and that their
outcomes are highly uncertain, very few defendants actually get a trial in the
United States. So, although the Constitution guarantees
every accused a speedy and public trial, that promise is not actually fulfilled in
the doing and the vast majority of criminal defendants who are convicted are
not convicted as the result of a jury trial.
This wasn't always the case, however, and this was something that I first learned
about by reading a wonderful article by John Langbein, an extremely perceptive
and versatile legal scholar who teaches down the road from Wesleyan at the Yale
Law School. I came across an article entitled The
Criminal Trial Before the Lawyers, written by professor Langbein and
published in 1978. And before I read the article, I tried to
figure out what it might be about, and what my guess was, was that it was about
a time in American history when judges were scarce.
And that therefore, in order for trials to be held, local attorneys had to be
drafted to sit in as judges in particular cases because there weren't enough real
judges to go around. And I guessed that Professor Langbein's
article was going to be about what trials were like when they were conducted before
lawyers, rather than being conducted before judges.
But, to my surprise and delight, the article wasn't about that at all.
It was about what trials were like in the early days of the American Republic.
And the picture that Professor Langbein drew of trials before the lawyers.
That is, trials, generally speaking, before 1850 was a very striking picture.
That was a picture of a trial system that was extremely simple, extremely cheap to
operate. And that therefore, it was quite possible
to guarantee every defendant who was accused of a crime a cheap trial.
So, what did the trials look like? The first thing to note about them was
that there were no lawyers at the trial at all, with the exception of the judge
who is typically an attorney. This is what Professor Langbein meant by
calling his articles, Trials Before the Lawyers.
It was what trials were like before lawyers were brought into the trial to
represent the people as prosecutors on the one side and to represent the
defendant as defense counsel on the other side.
Back in the old days, I learned, policemen acted as prosecutors.
Subsequently, I learned that this was an ancient English tradition and the
structure of the English criminal process reflects this ancient tradition even
today. Nonetheless, the prosecutor was the
police man. Almost always, the same police man who
had arrested the defendant in the first place, and therefore, a police man who
was familiar, as familiar as anybody else was likely to be, with the relevant
evidence about the crime. Moreover, the defendant had no attorney
either and typically represented himself, or in rare cases, herself, not with great
knowledge of the law. But one didn't need a great knowledge of
the law in order to plead a case on either side in these early days.
The law itself was relatively straightforward, not as detailed or
finely nuanced as it is now, and importantly rules of procedure and
evidence in the trial itself were very simple.
Pretty much any kind of evidence could be used as long as the court could be
reasonably sure that it was probative. That is to say that it was more likely to
be factual than not factual. And there were few rules that told one
side or the other what kinds of evidence they could introduce, what kinds of
arguments they could make about the evidence.
And few rules which told juries what they were supposed to conclude from all that
they were hearing. As a result, trials were very short,
because they weren't cluttered by defendants or prosecutors arguing
particular procedural motions based on complex procedural rules.
And because they were short and because they didn't involve professional
competence, they didn't involve attorneys on either side.
They were cheap so that indeed a trial, even of a serious offense, only very
rarely took more than several hours. And it was quite possible if there were,
in a particular place, three or four criminal cases to be tried at any one
time, they could all be tried in a day before the same jury.
At the same time, crime rates were low. There wasn't nearly as much crime then as
there came to be later in the United States.
So the confluence of all of these factors, that trials were short and
inexpensive and that crime rates were low meant that it was quite possible to
fulfill the Sixth Amendment promise and give everybody who'd been accused of a
crime, a full-scale criminal trial, because full-scale wasn't very full at
all. But after 1870, the country changed in
many ways, as urbanization and immigration increased to meet the demands
for labor and for output that were placed on the newly industrializing firms.
America underwent a second, as they say, Industrial Revolution, which transformed
the country. Within the 60 years, between 1850 and
1910, the per capita wealth of the people of the United States increased by more
than 300% and the population itself more than tripled.
As this happened, people flowed from the countryside and from foreign shores to
the cities in the United States where the factories were located.
And as this occurred, cities which were not prepared to house the influx of new
population that they were experiencing very rapidly after the Civil War.
Slums proliferated in the large American cities, and with these slums, crime rates
rose spectacularly over what they had been in a much less urbanized, much more
homogenous America before the Civil War. With these very, very great increases in
the levels of crime, cities and states responded to these increased crime rates
by creating the modern police and prosecutorial bureaucracies with which
we're still familiar to this day. Police forces were professionalized and
administered scientifically by people who were up on the latest developments of
criminology and management. And prosecutors now became the norm in
criminal cases. Well, before defendants were able to
counter that by bringing lawyers in on their own.
Because most defendants were impecunious and couldn't afford to have a lawyer.
As a result, prosecutors offices produced legions of professional prosecutors who
were all extremely good at what they did, and the office worked relative to the
defense of criminal cases extremely effectively and efficiently.
Defendants had nothing like the amount of resources available to the prosecution to
investigate crimes, to unearth evidence, to interview witnesses and to prepare for
the trial. In a word, the creation of these
prosecutorial and police bureaucracies tilted the playing field away from
defendants and toward prosecutors. That is to say, defendants were
increasingly perceived as being at a severe disadvantage in the intellectual
combat that was represented by the adversarial trials in the United States.
Later, in a later lecture, I'll distinguish between adversarial criminal
procedure and inquisitorial criminal procedure.
But now, it's enough to say that in the adversarial procedure, the one that
characterizes the criminal courts of Britain and the United States.
The idea is not necessarily to find the truth of the matter in the most
evidentiarily efficient way. So for example, one might say that the
only person on the planet who has the best knowledge of whether a defendant has
or has not committed a crime is that defendant him or herself.
And so, a procedure that was eveidentiarily efficient would make its
first witness in any criminal trail, the defendant, and the first question would
be to be answered under oath, presumably, now, did you commit this crime?
But of course, in American courts, prosecutors are not allowed to bring
defendants to the witness stand without the consent of the witness.
And this suggest, as do many other rights, this suggests that the purpose of
the adversarial trial is not necessarily to produce the best facts that it is
possible to produce and to place those facts before the jury.
That is, the goal of the criminal trial is not necessarily to find out the actual
truth about what happened. Rather, the adversarial system is built
on the assumption that the best way to get the truth in the minds of the jury is
to have the prosecution present evidence that the crime was committed by this
defendant nd to organize that evidence and interpret it from the prosecutions'
point of view, for the jury. And then, to have the defendant do
exactly the same, to organize the evidence, to tell a story about the
evidence that coincides in the interest in the defendant, and to put that version
before the jury as well. With few exceptions, the prosecution is
not required to tell the same story that the defense is telling and vice versa.
And, indeed, they can both put very different spins on factual evidence in a
court proceeding. The idea, instead, is that the jury,
hearing the biased view of the prosecution and the biased view of the
defense will then be able to mediate between these views and to determine for
themselves in a useful way what actually happened.
Whether this is a good system or a bad system, it's not for us to discuss at the
moment. What it does suggest is that the
adversarial trial works best when the combat is fair.
That is, when the prosecution and the defense are both able to tell a story
with similar effectiveness. We can't have the prosecution always
being able to tell a more detailed, more nuanced, more heavily investigated story,
because that would tend to bias the trials against defendants.
And so, in response to the perception that the establishment of prosecutorial
bureaucracy was tilting the field against defendants through the 19th and early
20th century, courts slowly granted defendants procedural rights that made
conviction more difficult and that, that did indeed level the field.
But it's useful, as I've noted on the slide, to think of these procedural
rights as rights against the truth. The way in which the field is leveled is
not by giving the defendant the same investigative and expository resources
that the prosecutor has. It's by keeping out of the trial evidence
that might tend to convict the defendant, but if it, which if it were introduced,
would tend to give the prosecution too great an advantage.
One right against the truth is one I've already mentioned and that's the right
against self-incrimination. Defendants are evidentially the most
efficient witnesses, they know the most about the question that needs to be
decided at trial. Did they commit this crime?
So, the truth would seem to suggest that they be asked.
But they're not asked, and hence, their right not to be asked is a right against
the truth. Similarly, American courts are governed
by what is called an exclusionary rule for evidence.
And this means,[COUGH] that if evidence has been gathered illegally by the
police, that evidence can't be introduced into a criminal trial even if the
evidence is perfectly reliable and there's no reason for anybody to question
the evidence itself. So, for example, if I'm accused of
possession of heroin, and the evidence against me is a bag of heroin that a
policeman found in my pocket. If it turns out that the policeman sees
that bag of heroin as evidence illegally, the exclusionary rule will keep a trial
jury from ever seeing the evidence or hearing about it.
And as a result, I can't be convicted of possession of heroin, even though, by
hypothesis, that's what I did. The exclusionary rule has kept a valuable
piece of evidence that would've gotten to truth that I, in fact, was carrying that
bag of heroin in my pocket. But the exclusionary rule, in order to
discipline the police and keep the sides fair, has in fact kept that probative
evidence out of the jury's sight. All of these rights against the truth all
of the evidentiary complications that were intended to level the playing field
did their job well. But they made trials infinitely more
elaborate proceedings than they have ever been.
Because trials were now so closely circumscribed in terms of rules and
rights, it simply wasn't possible any longer for defendants to effectively
represent themselves. They needed to have attorneys
representing them, so that arguments over the many rules and the many rights could
be conducted on relatively even terms. But lawyers are very, very expensive, and
now, both sides had to have them and they had to have them doing a lot of work.
Moreover, the rights against the truth made trials a much less certain way of
realizing convictions for prosecutors and defense alike.
Because, things like the exclusionary rule could have such a decisive effect on
cases, often, evidentiary hearings on whether a piece of evidence could or
could not be admitted, would, as in my heroin example, determine the outcome of
the trial. Solely apart from the actual facts that
might have been brought into the trial without those exclusionary rules.
So, because trials are so expensive for both sides, and because their outcomes
are so chancy for both sides, both sides have an interest in avoiding them.
And as a result, this interest in avoiding criminal trials by both
prosecutors and defense has led to the almost universal practice in the United
States of plea bargaining.
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