 | The thesis of this book is that the American criminal trial system is broken because it isn't aimed at determining the truth, but instead puts an overwhelming focus on procedure. The procedure is everything. Cases can be thrown out on technicalities, regardless of whether those technicalities were major or minor. And it isn't simply a matter of following the rules. It's impossible to predict ahead of time what exactly the rules are. He gives an example of "probable cause" or "reasonable suspicion". Police are allowed to act in cases of probable cause, but courts will often second guess how reasonable it actually is. Even judges are stymied by fear of being second guessed. Every decision they make during a trial can be second-guessed and the trial thrown out.
One example he gives is a defense attorney who demanded that the jury only be given the choice of second-degree murder, and not manslaughter, hoping that if they only had the one option, they might find the defendant not guilty. The jury convicted the defendant of second-degree murder. Even though the defense lawyer demanded this, and the prosecution tried to object, the higher courts said that the judge should have provided the manslaughter option.
It's said that taking a case to trial is like rolling the dice. You don't know which way things are going to go. And this is the problem. Instead of a system that emphasizes the truth and so should have pretty reliable outcomes, instead it turns into a kind of game where the truth is of secondary importance and each side aims to win at any cost.
The book contrasts the American system with European systems, showing that there is quite a variety of options available. He shows how the Supreme Court reads "rights" into its decisions, creating bad policy. Inferring a right in the Constitution, in order to fix a problem, is a very, very big hammer. You can't make trade-offs and rational policies.
He shows how plea-bargaining means most people are convicted of lesser offenses, but that it isn't a real victory for defendants. Since criminals are getting convicted of lesser offenses, the governments have been increases the penalties for the lesser offenses. So if every plea-bargainer gets one step down, they make all penalties one step up to compensate. And that means if an innocent person does try to defend themselves in a trial by jury, they've got inflated sentences looming over them.
There are a few places where people may have disagreements with the book. He makes a lengthy argument against jury nullification, for instance. But the value of this book is exceptional. His writing is clear, the organization is excellent, and the theme is not only important, but very well expressed. When the truth is not the primary focus in a trial system, we end up with all kinds of absurdities and unexpected results.
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