The Tilted Playing Field: Is Criminal Justice Unfair?

• Author: Hessler, Stephen E.
• Position: Review

THE TILTED PLAYING FIELD: IS CRIMINAL JUSTICE UNFAIR? By H. Richard Uviller. New Haven: Yale University Press. 1999. Pp. ix, 314. $30.

INTRODUCTION

Rules of criminal procedure, like all rules of legal procedure, exist to advance the goals of the corresponding substantive law. (1) To ask whether American criminal justice -- pursued through the operation of these procedural rules -- is fair is to engage in a debate that has persisted since the Founding. (2) More recently, the early twentieth century witnessed a revolution against the procedural formalism of preceding decades. (3) Whether justified or not, the perception flourished that the legal system's dogmatic adherence to process (4) allowed many criminals to escape punishment, and endangered society. The public statements of the era's most prominent jurists were marked by a common theme: the rules of criminal procedure were unjustifiably skewed in favor of the defendant.

This conventional wisdom was most famously advanced by Judge Learned Hand, who in 1923 wrote:

Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is at least fair doubt in the minds of any one of the twelve.... Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime. (5) Soon after, Judge (later Justice) Benjamin Cardozo wrote his legendary criticism of the exclusionary rule, decrying as absurd that "[t]he criminal is to go free because the constable has blundered." (6) A former president of the American Bar Association complained "society is too ready to intervene in behalf of the guilty, to shield him by unwritten law, or by sentimental nonsense to prevent adequate punishment." (7)

Furthermore, this harsh rhetoric was by no means limited to the leading lights of the bench and bar, as members of the academy likewise issued alarmist warnings. According to Robert Millar of Northwestern University Law School, "[m]ost of the faults of the existing system inure to the benefit of the defendant" (8) As a result, said University of Michigan Law School Professor Edson Sunderland, "[t]he criminal defendant is given so much protection that victims of crime -- those of us who are law-abiding and rely upon the state's assurance of protection, get almost none at all." (9) Echoing his colleagues, Charles Kellogg Burdick, Dean of Cornell University Law School, cautioned that "[a]t present time our danger is not that under the guise of criminal prosecution a tyrannical government will threaten the lives and liberties of its citizens, but that government will be a made a laughing stock by the increasing numbers of criminals who prey upon society and go unpunished." (10)

Today, alliances in the criminal procedure debate have shifted, as legal academics are generally more prone to believe that the accused are disadvantaged. The Warren Court may have incorporated nearly all of the criminal provisions in the Bill of Rights against the States, (11) significantly expanding defendants' protections under the Fourth, (12) Fifth, (13) Sixth, (14) and Eighth Amendments, (15) but contemporary scholars see ample cause for concern. Stated broadly, the "rights revolution" of the 1960s was followed by a movement in the Burger and Rehnquist Courts away from a criminal justice model focused on due process to one concerned primarily with crime control. (16) Coupled with omnipresent fears that America faces a "crime crisis," there is little popular sentiment for reforming the rules of criminal procedure in favor of defendants. (17) In other words, modern criminal defendants enjoy far greater rights than their forebears, but legal academics are generally convinced that our system is unfairly imbalanced against the accused. (18)

In his book The Tilted Playing Field: Is Criminal Justice Unfair?, Professor H. Richard Uviller (19) displays an independence among his colleagues by answering the question of his subtitle in the negative -- although his is a rather tentative no:

[A]Il in all, when day is done, I must say it seems to me that the American system for the delivery of criminal justice, while tilted in many respects, is not out of balance in that, in the main, it embodies a fair distribution of license and limits to the parties, an allocation that closely corresponds to their differing functions. It is, in other words, tolerably fair. [p. 307] As the multiple qualifiers of his conclusion indicate, Uviller's book is neither a ringing endorsement nor a damning critique of the American criminal justice system. Uviller does not deny that multiple disparities may be found in the respective positions of prosecutor and defendant in a criminal trial. But he rejects as an "unfortunate metaphorical transposition" the contention that the playing field must be level to be fair, instead arguing that examples of unequal distribution of power between adversaries are often "not only tolerable, but valued components of a fair system of adjudication." (20) In other words, rather than condemn the tilted playing field as unfair, Uviller recognizes the disparate allocation of advantages as crucial to protecting the integrity of the process.

Although the confrontational setting of the courtroom naturally promotes the metaphor of criminal trials as sporting events, Uviller argues the comparison is inapt. Fairness in a sporting contest, after all, requires opponents who are evenly matched. Fairness in a criminal trial, on the other hand, should not be understood to mandate literal parity of resources and prerogative among parties. Rather, Uviller asserts, "what we must mean is balanced empowerment," or a commitment to assigning privileges to the prosecution and defense on the basis of their dissimilar roles in the criminal trial (p. 16). Whether the respective entitlements promote or inhibit fairness depends on the "rationality of the connection between the supposed advantage and the principle it serves" (p. 19).

Thus, Uviller writes, it is "inescapable" that fairness is related to function (p. 19). And this premise, once accepted, forms the logical basis for Uviller's arguments. Unlike two parties to a civil proceeding, prosecutor and defender have little in common. Accordingly, "it should be obvious that to talk about a `balance of advantage' as though it were a simple comparison of armament, without taking account of the differing functions of the parties, is foolish" (p. 21). The prosecutor is a government agent representing the public, possessed with the duty to assess evidence of criminal activity unearthed by investigation, the discretion to initiate charges where appropriate, and the obligation to prove these facts at trial. Defense counsel, on the other hand, is a private advocate for an individual client, responsible only for discrediting the prosecution's presentation of the case. Therefore, "[t]he best way to assess fairness in these circumstances is to .. consider the implements accorded by law for the accomplishment of these differing objectives" (p. 21). A disadvantage is unfair if it is a "disabling impediment inappropriate to the task of the party suffering it" (p. 21).

With this distinction -- that prosecutor and defender differ in both role and objective -- in mind, Uviller sets out to examine several areas of comparative disadvantage, and to measure disparities "to determine their congruence with a communal sense of fairness in public law" (p. 6). In performing this task, Uviller writes, it would be far easier to "flee to the illusory safety" of "process-enhancing alternative[s]," i.e., to promote fairness by "maintaining a smooth and level playing field with no concern for the outcome of the games played upon it" (p. 31). This would, however, avoid hard questions of substantive fairness, questions which Uviller has no intention of ducking.

That said, the ultimate impact of Uviller's project may be seen as somewhat modest. Because his intent is more informative than prescriptive, Uviller has not offered a blueprint for systemic reform. Rather, he has developed a model for gauging fairness in an area of law perceived to be manifestly unfair. To the extent that Uviller debunks reflexive notions that justice requires a level playing field, his efforts are undeniably valuable. But the inherent subjectivity of Uviller's analytical method limits its utility, and in the end, any conclusions about the fairness of the criminal justice system will turn on the values of the individual asking the hard questions.

Uviller, to his credit, makes no attempt to gloss over this feature of his inquiry. When ascertaining which tenets of fairness are fundamental, "[s]omebody's preferences are going to have a big part in drawing up that list of the essential basics" (p. 18). Although controversial, relying on personal biases is an unavoidable element of Uviller's task. "I have no choice. I am ill-equipped to propose any set of incontrovertible first principles and then to develop a just criminal system from them" (pp. 21-22). Unlike other "intrepid jurisprudents [who] have made attempts at such grand schemes," (21) Uviller is "not optimistic that a unified, value-free field theory will emerge" (p. 22). Thus, "to talk about the subject of fairness at all, I must risk the distortion of personal perspective" (p. 22).

The product of Uviller's efforts is a provocative and engaging book. Uviller's pro-prosecutorial leanings (he spent fourteen years as a District Attorney in New York County earlier in his career (22)) occasionally emerge, but he forthrightly acknowledges them and avoids any...