We need a criminal justice 2.0 (the 1.0 is broken)

Summary: Here’s another post about our broken criminal justice system by someone who .understands its weaknesses –Hon. Alex Kozinski, a judge on the Ninth Circuit. His description has little resemblance to what we see on TV in CSI and NCIS, or to what our peers experience in Europe or Japan.  {1st of 2 posts today.}



Excerpt from “Criminal Law 2.0

by Hon. Alex Kozinski (Ninth Circuit judge)
Georgetown Law Journal, 2015

Preface to the 44th Annual Review of Criminal Procedure
Section I (footnotes omited)

… In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense. Here are just a few examples:

(1)  Eyewitnesses are highly reliable.

This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial.

In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

(2)  Fingerprint evidence is foolproof.

Not so. Identifying prints that are taken by police using fingerprinting equipment and proper technique may be a relatively simple process, but latent prints left in the field are often smudged and incomplete, and the identification process becomes more art than science. When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate. Perhaps the best-known example of such an error occurred in 2004 when the FBI announced that a latent print found on a plastic bag near a Madrid terrorist bombing was “a 100% match” to Oregon attorney Brandon Mayfield. The FBI eventually conceded error when Spanish investigators linked the print to someone else.

(3)   Other types of forensic evidence are scientifically proven and therefore infallible.

With the exception of DNA evidence (which has its own issues), what goes for fingerprints goes double and triple for other types of forensic evidence:

Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).

… Some fields of forensic expertise are built on nothing but guesswork and false common sense. Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. …

(4)  DNA evidence is infallible.

This is true to a point. DNA comparison, when properly conducted by an honest, trained professional will invariably reach the correct result. But the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest. …

(5)  Human memories are reliable.

Much of what we do in the courtroom relies on human memory. When a witness is asked to testify about past events, the accuracy of his account depends not only on his initial perception, but on the way the memories are recorded, stored and retrieved. For a very long time, it was believed that stored memories were much like video tape or film — an accurate copy of real-word experience that might fade with the passage of time or other factors, but could not be distorted or embellished.

Science now tells us that this view of human memory is fundamentally flawed. The mind not only distorts and embellishes memories, but a variety of external factors can affect how memories are retrieved and described. …

(6)  Confessions are infallible because innocent people never confess.

We now know that this is not true. Innocent people do confess with surprising regularity. Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect can result in remarkably detailed confessions that are later shown to be utterly false. …

(7)  Juries follow instructions.

This is a presumption — actually more of a guess— that we’ve elevated to a rule of law. It is, of course, necessary that we do so because it links the jury’s fact-finding process to the law. In fact, however, we know very little about what juries actually do when they decide cases. Do they consider the instructions at all? Do they consider all of the instructions or focus on only some? Do they understand the instructions or are they confused? We don’t really know. … But we have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases. …

(8)  Prosecutors play fair.

The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction. … There is reason to doubt that prosecutors comply with these obligations fully. …

(9)  The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.

Juries are routinely instructed that the defendant is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt, but we don’t really know whether either of these instructions has an effect on the average juror. Do jurors understand the concept of a presumption? … Nor do we know whether juries really draw a distinction between proof by a preponderance, proof by clear and convincing evidence and proof beyond a reasonable doubt. These levels of proof, which lawyers and judges assume to be hermetically sealed categories, may mean nothing at all in the jury room.

… {research suggests that} jurors are persuaded of whatever version of events is first presented to them and change their minds only if they are given very strong reasons to the contrary.

(10)  Police are objective in their investigations.

In many ways, this is the bedrock assumption of our criminal justice process. Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation. Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted.

And not just small-town police in Podunk or Timbuktu. Just the other day, “[t]he Justice Department and FBI [] formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all [of the 268] trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” …

(11)  Guilty pleas are conclusive proof of guilt.

Many people, including judges, take comfort in knowing that an overwhelming number of criminal cases are resolved by guilty plea rather than trial. Whatever imperfections there may be in the trial and criminal charging process, they believe, are washed away by the fact that the defendant ultimately consents to a conviction.

But this fails to take into account the trend of bringing multiple counts for a single incident — thereby vastly increasing the risk of a life-shattering sentence in case of conviction — as well as the creativity of prosecutors in hatching up criminal cases where no crime exists and the overcriminalization of virtually every aspect of American life.

… And, of course, if the trial process is perceived as highly uncertain, or even stacked in favor of the prosecution, the incentive to plead guilty to some charge that will allow the defendant to salvage a portion of his life, becomes immense. …

(12)  Long sentences deter crime.

{It is expensive and doesn’t work. Our sentences are far longer than those in our peers.}

Section II

What I have listed above are some of the reasons to doubt that our criminal justice system is fundamentally just.71 This is not meant to be an exhaustive list, nor is it clear that all of these uncertainties would, on closer examination, be resolved against the current system. But there are enough doubts on a broad range of subjects touching intimately on the integrity of the system that we should be concerned.

… What we have is faith that our system works very well and the errors, when they are revealed, are rare exceptions. Much hinges on retaining this belief: our self image as Americans; the pride of countless judges and lawyers; the idea that we live in a just society; confidence in the power of reason and logic; the certainty that none of us or our loved ones will face the unimaginable nightmare of unjust imprisonment or execution; belief in the incomparable integrity and accuracy of our system of justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane and proportionate. …

But what do we really know?

———————–  End excerpt. The rest is worth-while reading.   ———————–

For More Information

Click here to see articles about prosecutorial misconduct and our broken system of criminal forensic laboratories.

If you liked this post, like us on Facebook and follow us on Twitter. Also see all posts about America’s system of justice, about our prisons, and especially these…

  1. Being a third world nation is a state of mind, as we will learn (about prison rape).
  2. Our prisons are a mirror showing the soul of America.  It’s not a pretty picture.
  3. The Collapse of American Criminal Justice System — Excerpts from The Collapse of American Criminal Justice by William J. Stuntz
  4. The Disgrace of Our Criminal {in}Justice System, and hints of reform in the air.
  5. Can We Fix Our Shameful Prisons? Why they should be, and why we might not do so.



6 thoughts on “We need a criminal justice 2.0 (the 1.0 is broken)

  1. Criminal Justice is a very complex problem and it is both local and national. I like your 2.0 analogy as this is not a binary problem, a better system will require the cooperation of and communication among a variety of constituencies that have been trained/incentivized to be adversaries. For those interested in digging deeper there are some great resources available at the following links. The links are examples of what is available. I would encourage you to work through the sites and explore in depth.


  2. Fabius Maximus,

    I wonder if it’s really necessary to approach this as 2.0 situation. Criminal justice will always have flaws and the ones that were currently experiencing worse seem directly related to the fact that there was a crisis that no longer exists in America.
    Violent gangs are not going to take over our cities, we are not in a situation where murder rates are rise and violent crime is ever present.
    Why not try to reform by ending the practices brought on by crisis instead of trying a larger reform process?
    If mandatory minimums and the decriminalization of large number of non violent crimes were undone, then the effects would reverberate throughout the system. We have too many people in jail and headed to jail for our system to cope well and so we cope poorly throughout.
    If we can see the world as it is, with lower violence than ever, and accept that we still need the bodies to do good police, prosecution and oter tasks then I think that we can reform the criminal justice system out of crisis and towards a place where reasonable expectations from forensic investigators are more likely and police can focus on more important things.

    We don’t really need a whole new system, we just to pull the current one out of a crisis that doesn’t exist.

    PF Khans

    1. PF Khan,

      Perhaps you are correct. This is an essay from someone with long experience in the system, far more than mine. Certainly he documented his views thoroughly (see the original), and the daily news provides ample additional evidence.

      Everyone must draw their own conclusions.

      Anyway, does how you conceptualize it matter? These things are significant only to the extent you act upon them. Rephrased, these are only worth reading about to the extent that they motivate you to join the movements to reform America.

  3. PF,

    The points you make about the criminalization of civil infractions and what would have been addressed as non-criminal delinquency in another era are very insightful.

    The reason I agree with the 2.0 characterization is somewhat different from Judge Kozinski’s observations, though I think they are on point. The system we have today is based primarily on two views of the purpose of criminal justice:

    1. Retribution (eye for an eye), and
    2. Public safety.

    Destroying a teenager’s life because he is found with a few ounces of marijuana hardly qualifies as just retribution in most American’s eyes, but it happens every day.

    As for public safety, we have so overloaded the system with responsibility for civil matters such as the collection of child support and documentation of minor traffic accidents that there is not enough time for police officers to protect the public from the violent elements of society, who, though diminished in number, are very real and very dangerous.

    It seems that we might start from a new premise. The goal of a better system should be to return/divert the highest number of “offenders” possible to society better equipped to deal with a complex world without a criminal record that will make it impossible to get a job or otherwise serve as as productive citizens. Where that is not possible, the system should provide an efficient method for protecting society from harm, though incarceration or otherwise. In such a system success would be measured by how few, not how many, of our citizens are behind bars, while reducing the impact of crime on the lives of the majority of the population. To accomplish such a goal, the system would no longer be focused just on “criminal justice”, but would incorporate all the resources available (educational, economic, psychological, etc.) to equip the maximum number of our citizens to participate fully in the opportunities for achievement presented by the society at large.

  4. Many of these are issues I’ve complained about for many years. Some amplifications and additional points:

    [1] Full fingerprints are generally reliable if compared with sufficient detail to the reference print. The problem is most crime scenes don’t have fully perfectly formed and accurately preserved fingerprints with a complete set of loops and whorls. Most crime scenes contain what are known as “partials,” meaning part of a fingerprint. The process of transferring or reading the fingerprint also tends to create some gaps. The problem arises here because fingerprint identification uses a “point” system — Galton settled on 12 points in the late 19th century. But the reality of accurate fingerprint identification is different than Galton’s details:

    There are as many as 150 ridge characteristics (points) in the average fingerprint. So how many points must a fingerprint examiner match in order to safely say the prints are indeed those of a particular suspect? The answer is surprising. There is no standard number required. In fact, the decision as to whether or not there is a match is left entirely to the individual examiner.

    This problem of fingerprint matching becomes acute as the amount of the ridging left in a fingerprint becomes smaller and smaller (as the fingerprint partial becomes increasingly fragmentary). Beyond a certain point, it becomes effectively impossible to accurate match a very small and fragmentary partial print to anything. There is simply too little to work with. In this respect, fingerprint evidence is very unlike DNA evidence. Given even the tiniest amount of blood in a crime scene, investigators can use PCR (polymerase chain reaction) to amplify the amount of DNA found and produce a DNA match. The same is not true for partial fingerprints.

    [2] Most members of the public naively believe that any forensic evidence presented to the jury is scientific and highly reliable. But this is not the case. Some forensic evidence is collected and analyzed with scientific rigor and is highly reliable. DNA matches offer one example, another example comes from spectrographic analysis of chemicals or mass spectrometer analysis of a poison found in someone’s blood.
    But much forensic evidence is not collected or analyzed scientifically. This “evidence” has been debunked and is not considered valid by most scientists. Example of this junk science include: bite mark “evidence” (human skin stretches too much to provide accurate matches to a set of teeth), fiber “evidence” (the analysis can only prove that a similar type of fiber was found in two different places, not that the fibers are the same, or even that the accused on trial was in a place where the fibers could be found). See “Bitemark Identification Debunked: People are still teaching dentists unreliable forensics,” 20 May 2014.
    Other examples of junk science include most arson investigations. Arson investigators are not scientists and need not go through any coursework or qualify in any exams before being accepted as ‘experts.’ The typical arson investigator is an ex-firefighter who “learns” about arson by absorbing a bunch of old wives’ tales — “accelerants always leave trails” — from other arson investigators. These old wives’ tales have now been thoroughly debunked by practicing scientists with actual expertise in combustion and explosives. See “Trial by Fire, 7 September 2009, The New Yorker.
    Hair evidence is not scientific because hair (unless it has a follicle) has no DNA and thus cannot be matched reliably to an individual. A hair ‘match’ merely means that the victim was blonde and the accused had a blonde hair on his clothing, a hair which could have come from anywhere and which cannot be reliably identified as belonging to the victim. See “FBI admits flaws in hair analysis over decades,” The Washington Post, 18 April 2015.

    [3] Judges instructions to juries have always seemed extremely problematic to me. Judges in America have a habit of lying to juries. Example: judges routinely inform juries that “You are required to take [such-and-such] evidence into account, but you must not place any weight on [thus-and-so].” With such instructions, judged can so distort the outcome of a trial that they effectively force the jury to reach a predetermined conclusion.
    But the entire history of English common law tells us that juries are judges of the law as well as of the facts. And juries can arrive at a verdict based on any reasoning they like, taking into account or disregarding any evidence they choose. In the 1735 trial of John Peter Zenger, who was charged with printing seditious libels of the Governor of the Colony of New York, William Cosby, the jury acquitted — despite the fact that Zenger clearly printed the alleged libels. The judge in that case instructed the jury that the only issue the jury was free to decide, as the court deemed the truth or falsity of the statements to be irrelevant, was whether Zenger had in fact printed the material. The jury nonetheless returned a verdict of “Not Guilty.”
    Clearly, in the real world, there is a centuries-long tradition of juries being free to reach verdicts by any means they choose. Judges keep trying to prevent this by instructing juries. As far as I can, most judges’ instructions are unconstitutional and blatantly illegal insofar as they stray outside basic details like the meaning of the term “reasonable doubt.” Certainly instructing a jury as to what evidence they may or may not take into account seems entirely unconstitutional to me, by any reasonable reading of English common law.

    [4] Jurors aware of jury nullification are typically dismissed. This also seems illegal and unconstitutional to me. Jury nullifcation is a long tradition and represents the basis of a democratic system, for it allows juries to strike down unjust laws. The ongoing efforts of judges and prosecutors to purge jury pools of anyone with a knowledge of jury nullification represents yet another example of judges and prosecutors trying to cook the books and predetermine a verdict.

    [5] Prosecutorial misconduct in America has grown into an epidemic. While most crimes are way down over the last 30 years, prosecutorial misconduct has skyrocketed. See “Chief Judge For 9th Circuit Cites ‘Epidemic’ Of Prosecutor Misconduct,” 12 November 2013.

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