I’ll be the first to admit that there are some problems with the legal system in America. I’ll allow that some of those problems are inherent to any common law system. But it gets really tiring when people claim that the common law system is inherently “unethical,” or suggest that our system isn’t concerned with “finding the truth.”
Obviously, the American system is concerned with the truth. It’s just that our system acknowledges and understands that sometimes “truth” is in the eye of the beholder. Sometimes there are two truths. Sometimes people lie or allow their personal agendas to cloud the truth. And thus the American system focuses on a process, instead of flapping about like Tom Cruise in A Few Good Men arguing about what its entitled to.
Essentially, the American system is for adults, not children like award-winning Australian journalist Evan Whitton who wrote a silly piece on The Atlantic, supposedly about the history and the weakness of the common law system of jurisprudence….
You’ve heard most of Whitton’s criticisms before. If I may paraphrase his Atlantic piece, most of it is “Waaahh, adversarial lawyering ruins everything, waaahh.” Whitton, like so many before him, seems to think that zealously advocating for clients obscures the truth, instead of aiding its discovery.
Whitton seems to think that an “inquisition” system, as they have in continental Europe, would be better. Yes. Because inquisitions have really worked out so well throughout history.
The real issue between Whitton and the American system is that he casts as weaknesses many of the things we think of as strengths. From his closing argument:
Concealing evidence. Over the last 200 years, judges have invented myriad truth-defeating devices, including a few that conceal important evidence. Here are a few:
* The “right” of silence. The rule against self-incrimination is based on a lie by the first legal academic, a charlatan named William Blackstone. It’s estimated to get off about a quarter of guilty defendants.
* Concealing context. Serial sex criminals are largely protected by a rule that conceals evidence of a pattern of criminal behavior.
* Cross-examination. Lawyers are allowed to use sophistry to make honest witnesses look unreliable.
* Juries. Juries let off about 25 percent of guilty defendants, according to some estimates, because jurors are confused by concepts such as “beyond a reasonable doubt.”
Let me address each of these ridiculous points in turn:
1. “The ‘right’ of silence [is] estimated to get off about a quarter of guilty defendants.”
The right against self-incrimination is there to prevent the state from bullying innocent people into confessions. We still have that problem even with the right that Whitton derisively mentions. Basing guilty decisions on whether or not the state can get, trick, or beat a confession out of somebody is a terrible idea. Or should I just call Evan Whitton a “witch” and then play our game?
2. “Concealing context. Serial sex criminals are largely protected by a rule that conceals evidence of a pattern of criminal behavior.”
I know non-lawyers seem to have trouble with this concept, so I will go really slowly and use small words. Evidence of prior bad acts is NOT evidence of current guilt. It’s just not. I know a lot of people want it to be. I know that there’s this kind of nascent, human emotion that tells us a man’s past is highly predictive of his future. But every man deserves to be judged on what he’s done, not what he did.
3. “Cross-examination. Lawyers are allowed to use sophistry to make honest witnesses look unreliable.”
Yes, and sometimes lawyers are allowed to use sophistry to make lying ass witnesses look like liars. This, by the way, is something you see consistently with people who hate on lawyers — they act like lawyers are the only people who have ever tried to trick somebody. Whitton seems like the kind of guy who thinks that eyewitness testimony is reliable. What a freaking noob.
4. “Juries. Juries let off about 25 percent of guilty defendants, according to some estimates, because jurors are confused by concepts such as “beyond a reasonable doubt.”
Sure, juries aren’t the best. You know what’s worse than juries? Inquisitors! Star Chambers! Pretty much everything else that anybody has ever tried. Obviously, we’d love truly impartial and highly intelligent people to be the true arbiters of our guilt or innocence. But unfortunately those people don’t exist. Everybody has an agenda. Over time, 12 dumbasses have proven to be more fair than any system based on a few select judgmental assholes.
Whitton goes on to throw out some more cliches about truth-finding and how to do it. But it’s pretty clear that Whitton doesn’t actually care about learning the truth about the American legal system.