Gamesmanship and Criminal Process

ARTICLES

GAMESMANSHIP AND CRIMINAL PROCESS

John D. King*

ABSTRACT

We f‌irst learn formal structures of rules, procedures, and norms of conduct

through games and sports. These lessons illuminate and inform human behav-

ior in other contexts, including the adversarial world of criminal litigation.

As critiques of the legitimacy and fairness of the criminal justice system

increase, the philosophy and jurisprudence of sport offer a comparative legal

system to examine criminal litigation. Allegations of gamesmanship—the

aggressive and strategic use of rules that violate some sense of decorum or

culture yet remain within the formal rules of engagement—cut across both

contexts. This Article examines what sports can teach us about gamesmanship

in criminal litigation.

After distinguishing gamesmanship from cheating, this Article compares several

examples of gamesmanship in sport and criminal litigation. These examples address

the Crawford right of confrontation, the Brady obligation to disclose favorable evi-

dence to the defendant, and the Batson prohibition against using race in jury selec-

tion. This Article uses the jurisprudence of sport to propose a framework within

which to view these claims in the criminal justice context. Recognizing the asym-

metrical nature of the adversarial criminal justice system and the dual role of pros-

ecutors as advocates and ministers of justice, this Article argues that prosecutorial

gamesmanship poses a different and more acute danger to the legitimacy of the

criminal adjudication system than does such behavior by defense lawyers.

This Article concludes that gamesmanship is not only an inevitable part of any

rule-based adversarial contest but also a positive and productive phenomenon

that forces those invested in a system to def‌ine which values and objectives are

fundamental to that system. Only when an instance of gamesmanship is inconsis-

tent with these broader values or objectives should it be regulated or eliminated.

* James P. Moref‌ield Professor of Law, Washington and Lee University School of Law. LL.M., Georgetown

University Law Center, 2005; J.D., University of Michigan Law School, 1996; B.A., Brown University, 1992. I

would like to thank Mitchell Berman, Stephanos Bibas, Johanna Bond, Youngjae Lee, Alice Ristroph, Jonathan

Shapiro, Kate Weisburd, and Ty Alper for their helpful comments and suggestions, as well as Kimberly Blasey

for her outstanding research assistance, and the Frances Lewis Law Center for its f‌inancial support. © 2021, John

D. King.

47

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

I. WHY LOOK AT SPORTS RULES?. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

A. Comparing “Legal” Regimes. . . . . . . . . . . . . . . . . . . . . . . . . 52

B. The Long History of Comparing Law to Sport . . . . . . . . . . . . . 53

C. Limitations of the Analogy Between Law and Sport . . . . . . . . . 57

II. CHARGES OF GAMESMANSHIP IN CRIMINAL LITIGATION AND IN SPORT. . . . 60

A. Charges of Gamesmanship in Sport . . . . . . . . . . . . . . . . . . . . 60

1. Violating a Core Rule of the Game . . . . . . . . . . . . . . . . . 60

2. Losing on Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

3. “Over-Enforcing” an Obscure Rule Against an Opponent . 65

B. Allegations of Gamesmanship in Criminal Litigation . . . . . . . 67

1. Confrontation and Discovery Rights . . . . . . . . . . . . . . . . 68

2. Disclosure of Favorable Evidence . . . . . . . . . . . . . . . . . . 72

3. Jury Selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

III. GAMESMANSHIP, CHEATING, AND HOW TO RESPOND . . . . . . . . . . . . . . . 77

A. Gamesmanship Def‌ined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

B. Gamesmanship Distinguished from Cheating . . . . . . . . . . . . . 79

C. Regulatory Responses to Gamesmanship in Sport . . . . . . . . . . 87

IV. WHAT CRIMINAL PROCEDURE CAN LEARN FROM SPORTS . . . . . . . . . . . . 90

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

INTRODUCTION

We f‌irst learn formal structures of rules and norms of conduct through games

and sports. Notions of fair play, sportsmanship, and cheating are developed

from an early age on basketball courts, playgrounds, and soccer f‌ields. Today,

as many critique the legitimacy of the American criminal justice system in sev-

eral different respects, those who care about the integrity of the criminal jus-

tice system can learn from ideas and philosophies of fairness and cheating in

the sports context. Specif‌ically, the idea of “gamesmanship” in criminal proce-

dure has fruitful analogies in the world of sport. In the adversarial world of

American criminal adjudication, prosecutors and defense attorneys occasion-

ally accuse each other of “playing games” instead of playing fair. But what

one person would characterize as gamesmanship, another would characterize

as zealously using the rules to the advantage of one’s client or cause. And

whereas “cheating” (in the sense of violating the constitutional or statutory

rules that govern criminal practice) provides relatively clear lines of accept-

ability, the more interesting and diff‌icult questions instead involve the aggres-

sive use of rules that might violate some sense of decorum or culture, but stay

within the formal rules of engagement.

The concept of gamesmanship is notoriously tricky to def‌ine, but one useful def-

inition from the Journal of the Philosophy of Sport is “a strategy designed for

48 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:47

winning regardless of athletic excellence.”

1

Translated to the criminal litigation

context, this idea might imperfectly be expressed as “a strategy designed for win-

ning regardless of the factual and legal merits of the case.” Such a def‌inition reso-

nates with the negative connotations of the term in litigation: one side may use it to

accuse the other side of engaging in tactics that have nothing to do with the true

goal or ultimate systemic objective of the litigation. Others looking at the concept

of gamesmanship from a philosophical angle have found a meaningful distinction

between “the rules of the game” and “the code of fair play.”

2

The code of fair play,

which is an unwritten set of shared expectations among the participants about the

range of acceptable behavior, overlaps but is not co-extensive with the off‌icial

rules of the game.

3

Some actions do not violate the rules but would offend notions

of fair play, while other actions that violate the rules would not be seen as outside

of the code of fair play.

4

One such example is the intentional foul in basketball,

which is against the rules of the game but is in no way seen as violating notions of

fair play. Conversely, some litigators take the position that objecting during an

opponent’s opening statement or closing argument to a jury violates some shared

expectation or norm of conduct, although doing so is certainly within the off‌icial

rules of engagement and in fact might be necessary to enforce those formal rules.

Although usually invoked in a pejorative sense in sport and in criminal practice,

gamesmanship can serve an important and productive purpose. By clarifying the

boundaries of acceptable practice and by bringing into stark relief the limitations

of existing rules, gamesmanship forces us to establish and defend which objectives

are essential and which values are central to a system. Only where a practice of

gamesmanship subverts or undermines an overarching goal is it problematic.

5

The

overall professed goals of the criminal justice system are familiar: the ascertain-

ment of truth and application of just verdicts within a system that protects individ-

ual rights and human dignity.

6

If gamesmanship subverts these ends, it should be

discouraged in criminal litigation. But the prescription depends entirely on how

one def‌ines the goals of the system within which gamesmanship is deployed.

Often, what appears to be gamesmanship may be perfectly aligned with a broader

goal and so should not only be tolerated but also encouraged.

7

1. Leslie A. Howe, Gamesmanship, 31 J. PHIL. SPORT 212, 212 (2004).

2. DAVID PAPINEAU, KNOWING THE SCORE: WHAT SPORTS CAN TEACH US ABOUT PHILOSOPHY (AND WHAT

PHILOSOPHY CAN TEACH US ABOUT SPORTS) 54 (2017).

3. See id. at 54 (def‌ining the code of fair play as “the expectations that the athletes have of each other, their

sense of what is and is not acceptable behaviour” and noting that fair play is “often consistent with breaking a

game’s rules”).

4. See generally FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-

BASED DECISION-MAKING IN LAW AND IN LIFE (1991) (discussing the difference between norms and rules).

5. See Howe, supra note 1, at 216, 218.

6. See, e.g., Tehan v. United States ex rel. Shott, 382 U.S. 406, 415 (1966) (“The basic purpose of a trial is the

determination of truth . . . .”).

7. Howe, supra note 1, at 221 (arguing that not using certain types of gamesmanship is “disrespectful of the

opponent—it implies that the other competitor is not signif‌icant enough to warrant one’s full attention”).

2020] GAMESMANSHIP AND CRIMINAL PROCESS 49