Virtual Justice: The Flawed Prosecution of Crime in America.

• Author: Liu, Jessie K.

By H. Richard Uviller.(*) New Haven: Yale University Press, 1996. Pp. xvii, 318. $30.00.

I

The acquittal of O.J. Simpson in 1995 for the murder of his former wife and her friend touched off a new spate of criticisms of the American criminal justice system.(1) Recently, anything short of conviction in high-profile cases has tended to spark vociferous insistence that the acquittal or hung jury was the result not of the defendant's factual innocence (or even reasonable doubt thereof), but of the internal flaws of our criminal justice system.(2) Meanwhile, a number of books by well-known trial lawyers have confirmed what devotees of television courtroom dramas and disgruntled observers of recent trials have long suspected: that the criminal trial is a battle between lawyers in which each side uses all the means at its disposal to attain victory, even at the cost of obfuscating the truth.(3) The frustration with our supposedly flawed criminal justice system can only be exacerbated by increasing concern over crime rates.(4)

The twin perceptions, accurate or not, that crime is on the rise while our ability to combat it through the legal system is declining give particular force to H. Richard Uviller's new book, Virtual Justice: The Flawed Prosecution of Crime in America. The book offers an admirably well-balanced critique of the criminal justice system, breaking away from the mold of antidefense diatribe by offering sophisticated arguments that our rules of evidence and procedure make it difficult to reach the truth.(5) The author also proposes creative ways to reconcile the demands of the Bill of Rights with the needs of police officers and potential victims. Often, these innovative solutions make use of modern technology, such as a radio hookup that would allow for speedy issuance of constitutionally required search warrants to police officers in the field (pp. 84-87). The organization of the book tracks the criminal process from the initial investigatory stages to arrest, jury selection, and final disposition. On a more microscopic level, Uviller begins each chapter--which can be read as an essay unto itself, although the substantive quality varies widely--with a fictional account that sharpens the issues that he discusses.

II

Uviller devotes substantial space to a critique of aspects of the adversarial system, which he asserts inhibits the discovery of truth during all the stages of a criminal investigation and trial.(6) For example, he reads Miranda v. Arizona(7) as an attempt to extend the principle of the adversary system that "a suspect is never regarded as a primary source of evidence" to the essentially inquisitorial procedure of stationhouse interrogation (p. 122). Recognizing that Miranda tends to equalize poor defendants with their wealthier and more educated counterparts, Uviller nevertheless warns that taking it too far will eliminate evidence necessary to prove factual guilt (pp. 130-31). Uviller also questions the wisdom of Massiah v. United States,(8) charging that its ban on deliberate elicitation of incriminating evidence from an accused in the absence of counsel was made by a Court "wedded to the adversary ideal" (pp. 299-300)

At trial, the ill effects of the adversary system are even more apparent. Uviller argues that the conception of law as sport is responsible for the stereotypical defense attorney excesses now familiar to the citizenry through media trial coverage (p. 156).(9) He finds the passivity of the adversary system's judge and jury even more troubling. He argues for simpler evidentiary rules that place more discretion in the hands of the trial judge (p. 240). He also contends that the adversary system makes it hard for jurors to discern the truth (pp. 251-65). Jurors' difficulty in evaluating the plausibility of testimonial evidence is exacerbated by the structured manner in which such testimony is presented in the adversary system. Uviller's solution to the problem of finding truth amid this confusion is revealed in the final chapter, where he suggests as alternative to the adversarial system a quasi-inquisitorial model allowing the judge to...