“It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.” So Judge Alex Kozinski recently hypothesized in his blockbuster article on the grim state of the American criminal justice system, “Criminal Law 2.0.”
None of the persons I’ve defended against rape has been a eunuch. But I have seen how badly the justice system often works. Kozinski does not overstate.
Kozinski’s article covers the whole range of crimes. Many of the hazards he identifies are particularly common, or particularly dangerous, in the special assault cases my firm most often defends: sexual assault, child abuse, and domestic violence.
Consider human memory. There is often no physical evidence in a special assault case. Testimony, and the memories behind it, are all the evidence jury gets. Witnesses describe events that they say happened—sometimes many years ago. Often there are no corroborating witnesses. That’s why these cases are called “he said, she said” cases. One or two witnesses’ memories are key.
Many people think the brain records what the eye sees, that memory works like a video recorder, and that the recording is preserved safely until the witness hits “playback” for her testimony at trial. But science does not support this analogy for memory acquisition and recall. Studies demonstrate that memories can be distorted or embellished based on extraneous factors.
Kozinksi suggests that questioning by law enforcement or prosecutors is one way this distortion can happen. An average criminal case, he says, presents “plenty of opportunity to shape and augment a witness’s memory to bring it into line with the prosecutor’s theory of what happened.” Even when no one intends to influence memories, the passage of time or the stress of a situation can do it.
In child abuse cases, the first questioner is often a parent or a teacher who has jumped to the conclusion the child has been abused. That adult can unintentionally ask questions that mislead the child and distort the child’s memory.
When a cop questions a suspect, a confession is usually the objective. The right to remain silent is rarely a barrier. Often a detective brings someone in under the guise of an informal chat. These chats sometimes happen after Miranda warnings are read, but sometimes not.
As Kozinski rightly observes, “Innocent people do confess with surprising regularity.” Police are really skilled at implying that the suspect’s cooperation inside the interrogation room will help him more than his confession hurts him.
Wrongful convictions are especially frequent when sex offenses are charged. According to the Innocence Project, sex offenses are by far the most common category of crimes of which the convicted are eventually exonerated. Wrongful convictions for any crime are a miscarriage of justice, but wrongful convictions for sex offenses are uniquely devastating. People react to sex criminals—and those they wrongly believe are sex criminals—with disgust that even murderers don’t provoke.
Judge Kozinski does some guesswork about the number of people wrongly serving time. He points out that a 1 percent error rate would mean that 22,000 innocent people are currently incarcerated in our nation’s jails and prisons.
What’s to be done? Judge Kozinski is full of ideas. Among them:
- Standardized, rigorous procedures for eyewitness identification
- Video recording all suspect interrogations
- Stringent evaluation of expert evidence by courts
Kozinski may have chosen a good time to write his condemnation and call to action. Influential people from all over the political spectrum have lately been criticizing the cost and the unfairness of the justice system. If the reforms suggested by Judge Kozinski were adopted, the result would be more justice for all.