Trials Without Truth.

AuthorBracey, Christopher A.
PositionReview

William Pizzi, TRIALS WITHOUT TRUTH (New York University Press, 1999) 254 pp.

Modern constitutional criminal procedure--specifically, the elaborate regime of rights and procedural safeguards for criminal suspects and defendants--has received a great deal of attention and scrutiny over the past decade. A new perspective on the criminal process, premised on the belief that the social and political conditions that necessitated liberal reform of the criminal process no longer exist, or that the normative structure that protects these reformist measures from erosion has been drained of its vitality, is quickly gaining currency in both the theoretical halls of academe and the pragmatic realm of municipal governments. This new perspective threatens to render serious talk about the need to protect the rights of the accused politically and culturally passe. If the reforms of the 1960s and 1970s constituted a revolution in criminal procedure, the current climate reflects a powerful and sustained counterinsurgency.

The touchstone of this new perspective is an abiding belief that "[t]he days of needing close judicial supervision to guard against use of the criminal process to discriminate against the politically powerless are over."(1) The leading proponents of this view--University of Chicago law professors Tracey Meares and Dan Kahan--contend that close judicial scrutiny of police discretion and related aspects of the criminal process is no longer necessary because minorities now possess sufficient political status to protect themselves from the ill-effects of pernicious police practices.(2) Similarly, Harvard University law professor Randall Kennedy, in an effort to "free [himself] of reflexive obedience to familiar signals,"(3) has argued that criminal law enforcement policy that disproportionately affects African-American suspects and defendants may be justified as a "public good" from the perspective of law-abiding African-Americans, who are statistically more often victims of crimes committed by African-Americans.(4) Other scholars have offered similar critiques of the modern criminal process that build on this immediate theme.(5)

The message sent by proponents of this new perspective is unmistakably clear: the criminal process in its present form, and especially the regime of procedural safeguards intended to protect the interests of minority and indigent defendants, is tragically out-moded--a procedural relic reflective of and tailored to social circumstances of a by-gone era. The legal doctrines underlying the "modern" regime that once served a noble purpose have simply outlived their usefulness. The image of the criminal process advanced is that of a regime rendered anachronistic by the passage of time--one that is now failing us.

William Pizzi's Trials Without Truth provides an interesting variation on this increasingly familiar theme. A comparative criminal proceduralist by trade, Professor Pizzi demonstrates the extent to which our criminal process purportedly fails us by comparing our trial system with the trial systems of other Western, industrialized countries. According to Professor Pizzi, the American trial system is fundamentally "weak" in contrast to the "strong" trial systems of the Netherlands, Germany, Norway, and to a lesser extent England (p. 4). Professor Pizzi asserts that the dominant criterion of "strength" in a trial system is the ability of the system to make reliable determinations about the "true" guilt or innocence of any given defendant (pp. 69, 222-23). The American trial system is fundamentally "weak," according to Professor Pizzi, because it privileges fairness norms at the expense of "truth" (pp. 71-72). Professor Pizzi maintains that legal institutions--primarily courts--are far too concerned about the rights of suspects and defendants. He claims that the strong emphasis on the rights of suspects and defendants and other fairness considerations has resulted in the establishment and elaboration of rules and procedural safeguards that function as barriers to "truth" (pp. 71-72).

Professor Pizzi also argues that the truth crisis in the criminal process is further exacerbated by our stubborn adherence to a hyper-adversarial model of adjudication (p. 118-31). According to Professor Pizzi, rules designed to promote fairness and safeguard defendants' rights conspire with the adversarial model of adjudication to severely undermine the truth-seeking function of the trial process (pp. 131-33). Equally significant, in Professor Pizzi's opinion, is the way in which such reforms have turned the American trial system into a regime of "excess"--a system that is zealously confrontational, overly proceduralized, and far too concerned with "winning" and "losing" as opposed to determining the "truth" (p. 139).

The salvation of the American trial process, according to Professor Pizzi, lies in the placement of "truth-seeking" at the center of the criminal process. To accomplish this, Pizzi proposes the incorporation of discrete features of Western European inquisitorial trial processes into the American trial process. Among other things, Pizzi advocates a bestowal of greater discretion to police officers to ensure thorough and complete investigations (pp. 67-68, 222-23), and to trial judges to develop and manage cases (p. 222).(6) Along with the aggregation of authority within law enforcement and courts, Professor Pizzi recommends a corresponding relaxation of rules, procedures, and protections enjoyed by modern criminal suspects and defendants, which in Professor Pizzi's opinion, have only served as structural impediments to accurate and reliable determinations of guilt (pp. 223-26).

Professor Pizzi has written for nearly a decade about the relative strengths and weaknesses of the American trial process vis-fi-vis its Western European counterparts. Not surprisingly, Trials Without Truth borrows heavily from his earlier work.(7) Yet, in some of that earlier work, Professor Pizzi's praise for inquisitorial processes employed in continental legal systems was tempered by reservations about the ability to seamlessly incorporate structural elements from those regimes into the American trial system.(8) Moreover, Professor Pizzi has, on occasion, defended certain aspects of the American adversarial system--prosecutorial discretion and plea-bargaining, for example--as legitimate within the American context.(9) In this earlier work, Professor Pizzi seemed to endorse comparative approaches to criminal procedure primarily as an effective means of opening one's mind to reformist possibilities, yet Professor Pizzi also appeared to understand that problems associated with practical implementation were both real and substantial. As Professor Pizzi himself once observed:

[A] legal system is much more than a set of procedures for determining guilt and deciding on sentences. It is tied to important cultural, historical, and political values, making it unlikely that any reform incorporated from a system that does not share those values will be adopted or, even if adopted, will ever accomplish what it was intended to do.(10) In Trials Without Truth, Professor Pizzi's tone is far less measured, and far more confrontational. What prompted this shift in position? The answer is not at all clear, but one might suspect that the acquittal of O.J. Simpson for the murders of his ex-wife, Nicole Brown Simpson, and Marc Goldman is at least partly responsible. As Professor Pizzi notes in the introduction to his book, "[t]he Simpson case stunned the system out of its complacency.... [and] showed very little of which we could be proud" (p. 2). Professor Pizzi too must have been stunned, for he seems to have abandoned all his fears and reservations about mixing elements of the American and continental trial processes. Prior to the Simpson case, the American criminal trial process was in need of tweaking to streamline the proceedings. Following Simpson's acquittal, America has a system of "trials without truth" that can only be salvaged by getting rid of the great majority of procedural and structural impediments that hinder the discovery of "truth" by the police, judges, and jurors. This review essay examines and critiques the descriptive and prescriptive claims regarding the trial process advanced in Professor Pizzi's book.

  1. THREE PRELIMINARY CRITIQUES

    Trials Without Truth proves to be a provocative work that accents interesting reformist possibilities within the criminal process. Yet the book is not without flaws. What follows is a brief discussion of three small criticisms that I believe point to larger, more problematic features of the book. The first of these criticisms relates to the type of support Professor Pizzi relies upon to drive his arguments. That Professor Pizzi uses aberrational and sensational cases--the Simpson case, the Louise Woodward case, and the tragicomic episode of Colin Ferguson's self-representation--as the basis for making broad claims about the overall nature of the American criminal process might cause some readers to question from the outset the sincerity of Pizzi's critique. Indeed, in response to an earlier work in which Pizzi employed a similar approach, Professor Ronald Allen appropriately warned that "drawing lessons from the Simpson case about the criminal justice system, or designing solutions to the problems of that case that are to be applied to the system as a whole are dubious undertakings."(11)

    Professor Allen made a second criticism of that earlier work that applies with equal force here--namely, that Professor Pizzi does not properly distinguish between criminal processes that are "built," such as those developed in many Western European countries following a civil code tradition, and those that are "grown," such as the regimes in England, the United States, and other common law countries.(12) The conceptual and practical differences between these two legal orders are quite...

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