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Virtual Justice

Virtual Justice: The Flawed Prosecution of Crime in America

H. Richard Uviller
Copyright Date: 1996
Published by: Yale University Press
Pages: 336
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  • Book Info
    Virtual Justice
    Book Description:

    Sensational trials obsessively televised and reported by news media have led many Americans to question the effectiveness of their criminal justice system. Do police have the laws they need-or the competence-to do their job? Can juries recognize the truth in the tangle of evidence presented to them? What do lawyers actually contribute to the quest for justice in the criminal court? In this fascinating book a distinguished legal authority examines the flaws, contradictions, and weaknesses in our American justice system. The gripping stories he tells about the investigation and trial of criminal cases reveal what's really going on and demonstrate how the system often fails to deliver true justice.H. Richard Uviller deftly covers major aspects of the criminal justice process, from the gathering of evidence, capture and custody, and eyewitness identification to plea bargaining, selecting the jury, and the role of the judge. He illuminates each aspect of the process by creating and then analyzing a scenario drawn from the daily business of the courtrooms of the nation, a scenario in which police or judges may find themselves frustrated or immobilized, often by the law itself. Uviller explains the legal quandaries that often bedevil the process and shows how decisions by the Supreme Court have relieved or aggravated perplexity. He concludes that the prohibitions limiting investigation, the pervasive combat mentality between defense and prosecution lawyers, and, in particular, the power vested in a random collection of ordinary people gathered together as a jury all contribute to a criminal justice system that produces virtual-rather than actual-justice.

    eISBN: 978-0-300-14613-4
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. xi-xviii)

    Americans, who are avid consumers of criminal justice—in news and entertainment, if not by firsthand experience—sometimes have the uneasy feeling that it’s not working. Do police have the laws they need to do the job? Or are the laws—and especially the courts’ constitutional interpretations—actually making things needlessly difficult, leading to the release of dangerous felons for no discernible good reason? Are juries really competent for the critical task assigned to them? Can they recognize the truth in the tangle of evidence? How well are they served by the rules that filter the data provided to them?...

  5. Overview of the American Criminal Justice System
    (pp. 1-12)

    Before addressing some particular (and peculiar) aspects of the American criminal justice process, it might be helpful to sketch a map of the system as a whole. This description is probably the closest semblance of asystemof justice to be found in the book—avirtualmap, at best—and it should be regarded with appropriate caution. To those familiar with the contours of the territory, this sketch may be superfluous; I won’t be insulted if you skip it.

    In the United States, crime comes in two brands: state crime and federal crime. One action may violate both state...

  6. 1 Virtual Legality in the Field: Fact Gathering at the Scene of the Crime
    (pp. 13-27)

    Lawyers talk a lot aboutthe facts. Good lawyers can be found who will tell you that facts are the whole story. All the rest is rationalization, window dressing to make the fact-driven outcome seem like the product of reasoned, principled choice. But what are “facts”? To courtroom lawyers, facts are the relics of past events, things that actually happened out there in the real world. Today the events are gone, vanished into the elusive, misty realms of memory and cause. Now, in court, we must produce someevidenceof those vanished events. Only a moment’s reflection brings any thoughtful...

  7. 2 The Magical Moment of Arrest: Capture and Custody
    (pp. 28-39)

    The first contact between a law enforcement agent and a suspect is a moment alive with possibilities. Experienced cops know. Their customary cool and casual manner masks quivering antennae. Unexpected things happen and they happen fast. Why do cops draw their guns as they walk up to a strange doorway, why do they approach a stopped car from both sides, the cop on the right hanging back just behind the occupant’s line of sight? Because the lore of the station house, in the cities, at least, is that most folks do not think of a conversation with a police officer...

  8. 3 The Marvelous Faculty of Recognition: Eyewitness Identification of a Suspect
    (pp. 40-62)

    Mona Parker, 57, was on her way to the grocery store one evening, fifty dollars in her handbag from a recent stop at the local bank cash machine. Two men who had been standing on the corner as she passed followed her as she walked down the darkening street between the bank and the market. In the middle of the block, one of the men grabs Parker from behind in a choke hold. The other circles in front of her and pulls her handbag from her. As she wriggles and tries to hold onto the bag, the man in front...

  9. 4 The Exclusionary Rule: The Fabled Doctrine, Its Baleful Side Effects, and a Generally Ignored Technological Remedy
    (pp. 63-87)

    The proposition that the criminal is to go free because the constable blundered is by no means self-evident. Yet in peculiarly American jurisprudence, it is now immutably established—established as firmly as though the words had been written by the hand of James Madison himself—that evidence, no matter how convincing, will be excluded from the view of the jury if that evidence was acquired by law enforcement officers in violation of the constitutional rights of the defendant.The Exclusionary Rule. Is there anything anywhere in the law of crimes and criminal law enforcement, even today, that stirs the passions,...

  10. 5 Stops of People and Vehicles: Some Radical Proposals to Get the Guns Off the Streets
    (pp. 88-109)

    As the millennium draws to a close, murder has become one of the most grievous afflictions of the great American city culture. Freud was right: the chief impediment to civilization is the human instinct for aggression. Aided, in no small measure, by the pervasive handgun.

    The statistics are grim. According to the fbi, the murder rate in the United States increased 62 percent between 1987 and 1992, when 13,220 Americans were murdered with handguns. That number compares with a total of 367 in Great Britain, Sweden, Switzerland, Japan, Australia, and Canada combined, countries whose aggregate population of 239 million is...

  11. 6 Privacy and Privilege: Defeating Truth in the Name of Justice
    (pp. 110-131)

    There are lots of things we know that we would rather not tell the government, especially the government’s prosecution corps. When the fbi, the local cops, or the prosecuting attorney (perhaps with a grim-faced grand jury arrayed behind him) starts asking questions, our wariness level rises rapidly. Unless we are in a singularly vindictive mode, heedless, or supremely confident, we are gripped by reluctance. Even those whose consciences are clear—if any such can be found—feel a certain foretaste of trouble. Trouble is what the criminal law enforcement branch is all about. The cerebral neurons are firing in volleys....

  12. 7 The Right to Counsel: Dramatic, Deceitful, and Dilatory Assistance
    (pp. 132-156)

    Popular contempt for lawyers is nothing new. In the seventeenth century the practice of law was prohibited in several colonies, Massachusetts Bay, Virginia, and Connecticut among them. “A base and vile thing to plead for money or reward,” proclaimed the Fundamental Constitutions of the Carolinas. Nonetheless, in the late eighteenth century, a criminal defendant’s entitlement to “the assistance of counsel for his defense” was included in the basic catalogue of trial rights that is the Sixth Amendment to the Constitution. The meaning of this provision has been the subject of heated debate since.

    Let’s take a case:

    As expected, Senator...

  13. 8 Executive Discretion: Hard Choices and the Role of the Prosecutor
    (pp. 157-176)

    Prosecutors have no clients. This is a liberating, even exhilarating, position for a lawyer to be in. Professional decisions are not dictated by the personal, parochial preferences of the client. And prosecutors are rarely shackled by fidelity to objectives they find morally repugnant. Unlike defense attorneys, who are ethically bound to seek the earliest release of even the most dangerous and reprehensible criminals they represent, the prosecutor is enjoined never to prosecute those he believes to be innocent. Here and there, a prosecutor may find herself constrained to prosecute capital cases despite her personal opposition to capital punishment, another to...

  14. 9 Plea Bargaining: Cheap Crimes, Costly Trials
    (pp. 177-199)

    To hear people talk about it, you would think the practice of plea bargaining had consumed the whole system of deliberative justice, substituting for it either the moral imperatives of a Moroccan bazaar or the social ethics of a Las Vegas casino. Due process, jury trial, presumptive innocence, equal justice, just deserts, and the rest of the treasures of the temple of adjudication are forgotten in the crass commerce of the marketplace, or (if you prefer the image) the bluff and risk of the gaming tables. Here the innocent are induced to sell themselves into prison while the deeply guilty...

  15. 10 Picking the Jury: Stacking the Randomly Drawn Panel
    (pp. 200-216)

    All trial lawyers will agree: choosing the jurors to sit on your case is half the battle. And most will confide that they have an uncanny knack, nurtured into a crucial skill, of recognizing favorably disposed fellow citizens when they are called to the jury box, and of decoding the extrasensory signals of unconscious hostility. The novice or chastened trial lawyer (if any can be found) can readily acquire from seasoned colleagues field-tested guides and surefire charts of juror propensity essential to produce a sympathetic jury on the minimal cues afforded by the selection process. And the defendant who really...

  16. 11 Character as a Guide to Conduct and Credibility: A Grotesque Structure Adorns the Legal Landscape
    (pp. 217-240)

    We courtroom lawyers are all in the proof business one way or another. Most of the time, we are busily engaged in trying to establish that some fact is true or false, that some event really happened or really did not. As we assemble our evidence, we usually adopt the footprint theory of how to show who passed by. This theory holds that the past is preserved in the present by altered surfaces of matter and mind. It’s a good theory. Passing events generally do leave some durable marks on the physical world and imprints on the minds of witnesses....

  17. 12 Of Witnesses and Jurors: A Tale of Confidence and Error
    (pp. 241-265)

    What’s the story here? What happened? How did it happen? Who did it? In what state of mind did he do it? These are usually the questions in a criminal trial, and at least some of them are likely to be stone-hard nuts to crack. In most cases, however, these questions will be answered by a verdict agreed to by the jurors who have been selected partly because they don’t have the slightest idea what the answers are. The jurors will form their conclusions (if they do the job right) from the evidence in the case, meaning primarily from the...

  18. 13 Jury Nullification: The Insanity Defense and Other Avoidances
    (pp. 266-278)

    It is probably inevitable, even in the most liberal, participatory democracy, that occasionally laws will seem unduly harsh or the application of a good law to a particular case will seem unjust. One of the virtues of the jury system—rarely celebrated—is that the jury has the power to take the law into its own hands and do justice despite the law.

    Not since the earliest years of the republic has this power of the lay jury been officially recognized—and then only for the briefest period. In 1798, Congress passed a law, which remained on the books for...

  19. 14 The Judge: Promoting the Quest for Truth in the Adversary Mode
    (pp. 279-306)

    Seated at the center of the American criminal process is the trial judge. Robed on a raised bench, attentive but detached, severe but compassionate, involved but disinterested, the judge is the central figure of authority—and mystery—in the mysterious and authoritarian morality play we call criminal justice.

    It is important to believe in our scientists, teachers, our journalists, and (God help us) even our elected politicians. But if we do not believe in the integrity, the wisdom, the good judgment, and the fairness of our judges, we will be utterly lost. Few of us will ever stand before a...

  20. Conclusion
    (pp. 307-312)

    Having come with me so far along this bumpy road, you are entitled to a conclusion. Still, I approach the task of concluding with great trepidation. I hate conclusions—I love introductions, but I hate conclusions. Partly, it is because nothing ever really concludes. Not only does this story—like all stories—continue, but my thinking about the things I have already described goes on changing. I am always uneasy when asked—by students, for example—“So? Where does that leave us? What do you recommend?” And when I read the conclusions of others, I am usually disappointed. Following a...

  21. Index
    (pp. 313-318)