Hi everybody. Welcome back. In this final segment of the course, I'd like to return to the problem of criminal liability and in particular, to the problem of completing the second half of the criminal transaction by adjudicating the offender's guilt. And by determining the punishment price or liability price that will be imposed upon that offender to compensate for the moral costs of the offense. In the United States and indeed pretty much everywhere in the world, the default means by which this second half of the transaction is undertaken is, at least in principle, a criminal trial. In the United States, indeed, the Sixth Amendment to the Constitution guarantees that every person that every person whose accused of a, of a crime will receive a speedy and public trial by an impartial jury. So not only the trial, in principle, the default mode of completing the second half of the criminal transaction. A trial is guaranteed to any defendant who's accused of a crime. But, now, criminal trials in the United States are hugely expensive. They take a great deal of time, they involve a great deal of resources, lawyers. Many lawyers in some cases, have to be engaged. Jurors have to be engaged. Judges and legal facilities have to be engaged. And all of the costs that are associated with gathering and producing and processing the evidence that will form the basis of the trial. All of these things cost a great deal of money. Moreover, the outcomes of criminal trials are highly uncertain in large part because there are so many rules constraining what kind of evidence can be brought to bear in a trial, how that evidence can be used, and what weight juries must or can't place on particular pieces of evidence. As a result of the fact that trials are colossally expensive and that their outcomes are highly uncertain, very few defendants actually get a trial in the United States. So, although the Constitution guarantees every accused a speedy and public trial, that promise is not actually fulfilled in the doing and the vast majority of criminal defendants who are convicted are not convicted as the result of a jury trial. This wasn't always the case, however, and this was something that I first learned about by reading a wonderful article by John Langbein, an extremely perceptive and versatile legal scholar who teaches down the road from Wesleyan at the Yale Law School. I came across an article entitled The Criminal Trial Before the Lawyers, written by professor Langbein and published in 1978. And before I read the article, I tried to figure out what it might be about, and what my guess was, was that it was about a time in American history when judges were scarce. And that therefore, in order for trials to be held, local attorneys had to be drafted to sit in as judges in particular cases because there weren't enough real judges to go around. And I guessed that Professor Langbein's article was going to be about what trials were like when they were conducted before lawyers, rather than being conducted before judges. But, to my surprise and delight, the article wasn't about that at all. It was about what trials were like in the early days of the American Republic. And the picture that Professor Langbein drew of trials before the lawyers. That is, trials, generally speaking, before 1850 was a very striking picture. That was a picture of a trial system that was extremely simple, extremely cheap to operate. And that therefore, it was quite possible to guarantee every defendant who was accused of a crime a cheap trial. So, what did the trials look like? The first thing to note about them was that there were no lawyers at the trial at all, with the exception of the judge who is typically an attorney. This is what Professor Langbein meant by calling his articles, Trials Before the Lawyers. It was what trials were like before lawyers were brought into the trial to represent the people as prosecutors on the one side and to represent the defendant as defense counsel on the other side. Back in the old days, I learned, policemen acted as prosecutors. Subsequently, I learned that this was an ancient English tradition and the structure of the English criminal process reflects this ancient tradition even today. Nonetheless, the prosecutor was the police man. Almost always, the same police man who had arrested the defendant in the first place, and therefore, a police man who was familiar, as familiar as anybody else was likely to be, with the relevant evidence about the crime. Moreover, the defendant had no attorney either and typically represented himself, or in rare cases, herself, not with great knowledge of the law. But one didn't need a great knowledge of the law in order to plead a case on either side in these early days. The law itself was relatively straightforward, not as detailed or finely nuanced as it is now, and importantly rules of procedure and evidence in the trial itself were very simple. Pretty much any kind of evidence could be used as long as the court could be reasonably sure that it was probative. That is to say that it was more likely to be factual than not factual. And there were few rules that told one side or the other what kinds of evidence they could introduce, what kinds of arguments they could make about the evidence. And few rules which told juries what they were supposed to conclude from all that they were hearing. As a result, trials were very short, because they weren't cluttered by defendants or prosecutors arguing particular procedural motions based on complex procedural rules. And because they were short and because they didn't involve professional competence, they didn't involve attorneys on either side. They were cheap so that indeed a trial, even of a serious offense, only very rarely took more than several hours. And it was quite possible if there were, in a particular place, three or four criminal cases to be tried at any one time, they could all be tried in a day before the same jury. At the same time, crime rates were low. There wasn't nearly as much crime then as there came to be later in the United States. So the confluence of all of these factors, that trials were short and inexpensive and that crime rates were low meant that it was quite possible to fulfill the Sixth Amendment promise and give everybody who'd been accused of a crime, a full-scale criminal trial, because full-scale wasn't very full at all. But after 1870, the country changed in many ways, as urbanization and immigration increased to meet the demands for labor and for output that were placed on the newly industrializing firms. America underwent a second, as they say, Industrial Revolution, which transformed the country. Within the 60 years, between 1850 and 1910, the per capita wealth of the people of the United States increased by more than 300% and the population itself more than tripled. As this happened, people flowed from the countryside and from foreign shores to the cities in the United States where the factories were located. And as this occurred, cities which were not prepared to house the influx of new population that they were experiencing very rapidly after the Civil War. Slums proliferated in the large American cities, and with these slums, crime rates rose spectacularly over what they had been in a much less urbanized, much more homogenous America before the Civil War. With these very, very great increases in the levels of crime, cities and states responded to these increased crime rates by creating the modern police and prosecutorial bureaucracies with which we're still familiar to this day. Police forces were professionalized and administered scientifically by people who were up on the latest developments of criminology and management. And prosecutors now became the norm in criminal cases. Well, before defendants were able to counter that by bringing lawyers in on their own. Because most defendants were impecunious and couldn't afford to have a lawyer. As a result, prosecutors offices produced legions of professional prosecutors who were all extremely good at what they did, and the office worked relative to the defense of criminal cases extremely effectively and efficiently. Defendants had nothing like the amount of resources available to the prosecution to investigate crimes, to unearth evidence, to interview witnesses and to prepare for the trial. In a word, the creation of these prosecutorial and police bureaucracies tilted the playing field away from defendants and toward prosecutors. That is to say, defendants were increasingly perceived as being at a severe disadvantage in the intellectual combat that was represented by the adversarial trials in the United States. Later, in a later lecture, I'll distinguish between adversarial criminal procedure and inquisitorial criminal procedure. But now, it's enough to say that in the adversarial procedure, the one that characterizes the criminal courts of Britain and the United States. The idea is not necessarily to find the truth of the matter in the most evidentiarily efficient way. So for example, one might say that the only person on the planet who has the best knowledge of whether a defendant has or has not committed a crime is that defendant him or herself. And so, a procedure that was eveidentiarily efficient would make its first witness in any criminal trail, the defendant, and the first question would be to be answered under oath, presumably, now, did you commit this crime? But of course, in American courts, prosecutors are not allowed to bring defendants to the witness stand without the consent of the witness. And this suggest, as do many other rights, this suggests that the purpose of the adversarial trial is not necessarily to produce the best facts that it is possible to produce and to place those facts before the jury. That is, the goal of the criminal trial is not necessarily to find out the actual truth about what happened. Rather, the adversarial system is built on the assumption that the best way to get the truth in the minds of the jury is to have the prosecution present evidence that the crime was committed by this defendant nd to organize that evidence and interpret it from the prosecutions' point of view, for the jury. And then, to have the defendant do exactly the same, to organize the evidence, to tell a story about the evidence that coincides in the interest in the defendant, and to put that version before the jury as well. With few exceptions, the prosecution is not required to tell the same story that the defense is telling and vice versa. And, indeed, they can both put very different spins on factual evidence in a court proceeding. The idea, instead, is that the jury, hearing the biased view of the prosecution and the biased view of the defense will then be able to mediate between these views and to determine for themselves in a useful way what actually happened. Whether this is a good system or a bad system, it's not for us to discuss at the moment. What it does suggest is that the adversarial trial works best when the combat is fair. That is, when the prosecution and the defense are both able to tell a story with similar effectiveness. We can't have the prosecution always being able to tell a more detailed, more nuanced, more heavily investigated story, because that would tend to bias the trials against defendants. And so, in response to the perception that the establishment of prosecutorial bureaucracy was tilting the field against defendants through the 19th and early 20th century, courts slowly granted defendants procedural rights that made conviction more difficult and that, that did indeed level the field. But it's useful, as I've noted on the slide, to think of these procedural rights as rights against the truth. The way in which the field is leveled is not by giving the defendant the same investigative and expository resources that the prosecutor has. It's by keeping out of the trial evidence that might tend to convict the defendant, but if it, which if it were introduced, would tend to give the prosecution too great an advantage. One right against the truth is one I've already mentioned and that's the right against self-incrimination. Defendants are evidentially the most efficient witnesses, they know the most about the question that needs to be decided at trial. Did they commit this crime? So, the truth would seem to suggest that they be asked. But they're not asked, and hence, their right not to be asked is a right against the truth. Similarly, American courts are governed by what is called an exclusionary rule for evidence. And this means,[COUGH] that if evidence has been gathered illegally by the police, that evidence can't be introduced into a criminal trial even if the evidence is perfectly reliable and there's no reason for anybody to question the evidence itself. So, for example, if I'm accused of possession of heroin, and the evidence against me is a bag of heroin that a policeman found in my pocket. If it turns out that the policeman sees that bag of heroin as evidence illegally, the exclusionary rule will keep a trial jury from ever seeing the evidence or hearing about it. And as a result, I can't be convicted of possession of heroin, even though, by hypothesis, that's what I did. The exclusionary rule has kept a valuable piece of evidence that would've gotten to truth that I, in fact, was carrying that bag of heroin in my pocket. But the exclusionary rule, in order to discipline the police and keep the sides fair, has in fact kept that probative evidence out of the jury's sight. All of these rights against the truth all of the evidentiary complications that were intended to level the playing field did their job well. But they made trials infinitely more elaborate proceedings than they have ever been. Because trials were now so closely circumscribed in terms of rules and rights, it simply wasn't possible any longer for defendants to effectively represent themselves. They needed to have attorneys representing them, so that arguments over the many rules and the many rights could be conducted on relatively even terms. But lawyers are very, very expensive, and now, both sides had to have them and they had to have them doing a lot of work. Moreover, the rights against the truth made trials a much less certain way of realizing convictions for prosecutors and defense alike. Because, things like the exclusionary rule could have such a decisive effect on cases, often, evidentiary hearings on whether a piece of evidence could or could not be admitted, would, as in my heroin example, determine the outcome of the trial. Solely apart from the actual facts that might have been brought into the trial without those exclusionary rules. So, because trials are so expensive for both sides, and because their outcomes are so chancy for both sides, both sides have an interest in avoiding them. And as a result, this interest in avoiding criminal trials by both prosecutors and defense has led to the almost universal practice in the United States of plea bargaining.