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The Tilted Playing Field

The Tilted Playing Field: Is Criminal Justice Unfair?

H. Richard Uviller
Copyright Date: 1999
Published by: Yale University Press
Pages: 326
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  • Book Info
    The Tilted Playing Field
    Book Description:

    Although evenly matched adversaries make for a more exciting athletic contest, and a level playing field is essential to a fair game, is the same true in a criminal trial? In this compelling new book, H. Richard Uviller argues that a criminal trial is not analogous to a sporting event. Prosecutors and defense attorneys are, in critical respects, different from each other, and the allocation of advantages to each must be uneven in order to be fair.In a lively exploration of the powers of the prosecutor and the prerogatives of the defense, Uviller asks where our criminal justice system is fair though unequal and where its inequalities may subvert fair results. On the one hand, he points out, the prosecutor has unmatched and virtually unreviewable discretion to choose the target of a prosecution, the charge, and to a large extent the timing of an indictment. The prosecution also is first on the scene to develop evidence and is entitled to compel the production of evidence from reluctant custodians. The lawyer for the defendant, on the other hand, enjoys virtually unrestricted license to argue contrary to his or her own sincere belief, as well as broad powers to discover evidence from the prosecutor's file. Are these unequal advantages necessary? Are they fair? Uviller concludes that although the overall criminal justice system reflects a fair distribution of advantages and disadvantages, in certain areas the imbalance is so severe as to undermine justice. He offers realistic, carefully considered recommendations for reform in these problem areas.

    eISBN: 978-0-300-14724-7
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xii)
  4. INTRODUCTION: Metaphorically Speaking
    (pp. 1-6)

    The process we have devised for accusing and trying our suspected criminals attracts enormous public attention. Why this rather dull, sordid business has become daily top-story newsfare and an inexhaustible resource for print and pixel fiction is not immediately apparent. When I first heard that a television channel planned to broadcast continuous live coverage of trials “gavel to gavel,” I saw boredom rolling in like a San Francisco fog. Having had some firsthand experience with the tedium of criminal trials in real time, I couldn’t imagine a rapt audience. “Like watching paint dry,” is the way a trial judge I...

    (pp. 7-31)

    The chief grievance harbored by most folk, I suspect, is that somehow they did not get their due. Even among my friends and colleagues—privileged by any standard—many feel underappreciated, perhaps ignored, by the fates and their peers. And so many people from all classes of society describe themselves, in one way or another, as victims of “the system,” a system that rewards the insider, the hustler, and the charlatan (always somebody else, of course) while it rejects—if, indeed, it does not actually oppress—the worthy, the diligent, and the virtuous. The attitude is, we hear, the bitter...

  6. 2 DISCRETION AND THE ADVANTAGE OF INITIATION: Choosing a Target, Bringing a Charge
    (pp. 32-72)

    There is very likely some real advantage to being cast in the responsive role. It is often easier to parry than to thrust. Once the decision is made to do legal battle on a particular field over a chosen set of issues, the defender may find himself in a good position to deflect the charge. A variety of tactics offer defensive zing, including self-righteous scorn (“This whole trumped up charge is nothing but a cheap political shot”), the security of a presumption-fortified position (“YousayI did it, but you’ll never be able toproveit”), counterattack by accusation of...

    (pp. 73-112)

    Information is what trials are about. Trials are not about law. Disputes may arise on questions of law, trial judges may be called upon to make some dicey initial calls on legal issues, but the heart of the trial is the determination of who did what to whom and in what frame of mind. Appeals are about law; trials deal with facts.

    So, understandably, at the trial stage, the parties are vitally interested in the raw factual data that can be produced in court. Of course, skill counts. The lawyers are not cold, dispassionate fact packers. They are in the...

    (pp. 113-140)

    An axiom of deep gravity in the trial of criminal cases is that the prosecutors, and the victims they speak for, are the good guys; the defendant and his lawyers are the bad. Among the jurors, exerting a pull you can almost feel, is a disposition brought into the jury box from real life, a disposition to identify with the victim, to regard law enforcement forces as the vindicators, and to suspect that all defendants are probably guilty (or else they wouldn’t be there, would they?). And their lawyers are not to be trusted when they try to persuade you...

  9. 5 BURDENS AND PRESUMPTIONS: Rescue from the Quandary of Perhaps
    (pp. 141-161)

    Some people appear to be clear and certain about everything they know and believe. They seem to have the unerring faculty of separating truth from falsehood and mistake in whatever people tell them. It is a wonder and a mystery to me. I am suspended in perpetual perplexity about what really happened. Especially when I must rely on the reports of others—which covers just about everything—I find it very difficult to reach a confident conclusion about a past event. And things have gotten worse since I learned to discount my own gullibility. I know from experience that I...

  10. 6 THE BLESSING OF BANKROLL: Financial Disparity and the Riddle of Bail
    (pp. 162-188)

    Some people, i know, believe that the entire American criminal justice system is just another institutional example of the grievous economic disparities that afflict us. We’ve all heard the refrain: the quality of justice you get depends upon the heft of your wallet. The argument is often voiced to compare the rich and the poor defendants—one well armed for the conflict and therefore likely to triumph, the other mustering only a few, weak, and hungry troops and therefore doomed to defeat. And the unequal protection point is frequently coupled with the ugly cry of racism, a claim that differential...

  11. 7 EXCLUDING ADVERSE EVIDENCE: Truth or Justice?
    (pp. 189-215)

    Would it not be amusing if the exclusionary rule of evidence cut both ways? Truly to vindicate the core rights of personal privacy and individual autonomy, courts should reject evidence obtained by intrusive search and seizure or by cognitive coercion whether the oppressive acquisition was by the government or by some private agent. A private detective, doing the private defendant’s bidding, forcing his way into someone’s personal space or sneaking through boundaries of civility to snatch a document of interest to the defense, is offending notions of individual integrity to the same extent as a public officer on a government...

    (pp. 216-235)

    Nobody is perfect. People make mistakes. When those people are in a courtroom, conducting a trial in the trappings of lawyers and judges, we say they commit error, as though it were some sort of crime. And they do it pretty persistently—with nary an apology or excuse. Like old sinners, they stumble through the complex tangle of trial rules, inadvertently snapping one here, breaking another there with only a fleeting backward glance, and deliberately bending a third out of their way. Nothing to be too concerned about; it’s not like a surgeon’s mistake, after all, or even a violinist’s....

  13. 9 TRUTH TELLING AND THE LIMITS OF ETHICAL LICENSE: Counselʹs Tolerable Deceptions
    (pp. 236-254)

    As defense counsel in a criminal case, I enjoy two options that no prosecutor has: tag them concealment and dissimulation. The first is to decide that some witness is not going to help our case so we just won’t call him. I’ll deep-six my notes on what he has told me and hope the prosecutor doesn’t find him. I won’t go so far as to tell him to get lost—that might be obstruction of justice, a crime—but I am surely not about to serve up his name and address to the prosecutor on the proverbial silver platter.


  14. 10 JURY IRRATIONALITY AND ITS INSULATION: Arousing the Unimpeachable Impulse
    (pp. 255-278)

    Everyone has stories about juries that went haywire. Most of them are cases where the jury—in apparent disregard of powerful evidence of guilt, off on some frolic and detour of their own—returned a verdict of acquittal. Many of these travesties are high-visibility trials, dramatized into pop culture by the ever-prurient media. Engraved on the public mind is a passion murderer with some sort of contrived rough-sex story, a killer cop with a transparently phony resisting-arrest defense; a celebrity ex-husband with a variable defense and a stacked jury, the public assassin of an incendiary Jewish leader, a major racketeer...

  15. 11 SUMMARY: The Fair Tilt
    (pp. 279-304)

    If all goes well in the complex and chancy business of bringing a criminal case from suspicion to verdict, the adversaries will not be evenly endowed. If the defendant is guilty, the prosecution should have an overwhelmingly powerful case. If the charge is brought in error, the defense should have full and convincing means of showing the fallacies in the government’s thesis. Since we do not know in any given case which paradigm applies, the trick is to devise a system where advantages are so distributed that the inequalities will inure to the benefit of the deserving party. It’s a...

    (pp. 305-308)

    As we conclude this trek through some of the exotic regions—along with the mundane—in the land of criminal law enforcement, we might wonder whether we have fully addressed the question with which we set out: Is the brand of justice we deliver fair to both sides? Fair enough to support pride? It is, I realize, rather late in these pages to ask, but have we at least settled on a working definition of what we mean byfair?At least, are we agreed that we do not mean what sports fans would consider fair—that is, an evenly...

  17. INDEX
    (pp. 309-314)