[I]t ought to make us self-conscious about our vulnerability.  And the fact that we are not on very solid ground also ought to make us ethically and politically sensitive when we write about other cultures.  In historical ethnography, it should alert us to several acute methodological problems when we deal with archival and documentary material written before modern ethnography even got off the ground.  …  “Any ontology we use to ground the human sciences must ultimately be based on ‘faith’ since any ontology of even minimal significance must derive from a variety of sources, including the scholar’s religious and cultural heritage; and any ontology that we employ can never be final since the very historicity of our being prevents that.”  (Gananath Obeyesekere,The Apotheosis of Captain Cook: European Mythmaking in the Pacific (1997) 200.)

Well, what’s that got to do with criminal law?

I know there are judges, prosecutors and the occasional literate law enforcement officer who read my blog, so let me see if I can put this another way.

Little Red Riding Hood is skipping thru the forest road when she sees the big bad wolf crouched down behind a log.

“My, what big eyes you have, Mr. Wolf.”

The wolf jumps up and runs away.

Further down the road Little Red Riding Hood sees the wolf again and this time he is crouched behind a bush.

“My what big ears you have, Mr. Wolf.”

Again the wolf jumps up and runs away.

About 1/4 mile down the road Little Red Riding Hood sees the wolf again and this time he is crouched down behind a rock.

“My what big teeth you have Mr. Wolf.”

With that the wolf jumps up and screams, “Will you knock it off, I’m trying to poop!”

Things aren’t always what they appear to be.

We who work in the criminal justice system have tasks and difficulties similar to those faced by anthropologists working in historical ethnography.  We depend upon reports of past events to make determinations about “what really happened.”  The individuals creating and providing, or finding and presenting, those reports, like the crew members of Captain Cook’s voyages about whom Obeyesekere was writing, differ in their respective abilities, background, training and biases.  This impacts the reliability of their reports.

The sadly significant difference between the work of those doing historical ethnography and judges, jurors, prosecutors and others involved in the criminal justice system is this:  What ethnographers decide may create controversies which will lead to the gainful employment of future researchers, writers and critics of historical ethnographies.  What we decide — particularly what judges and jurors decide — will significantly affect the liberty and property interests of living human beings.

As Obeyesekere states and Little Red Riding Hood demonstrates, an individual’s belief about “the way the world is” (one’s ontological beliefs) has an impact on that individual’s interpretation of the things that happen in the world.  (One’s ontological beliefs also impact what an individual thinks should happen in the world, but I’m not going to get into that here.)

Similar to the situation for the ethnographers about whom Obeyesekere is writing, this should make those who wield the power of the state “ethically and politically sensitive” when we consider the evidence.  “It should alert us to several acute methodological problems when we deal with” testimony in a court of law offered by people who not only have differing backgrounds that can skew their interpretation of allegedly-witnessed events, but testimony offered by people with differing motivations which skew their presentation of allegedly-witnessed events.

It should stop us, even if momentarily, and cause us to consider how our own prejudices — or, to use the expression favored by law enforcement officers because it makes it sound like something different and far more wonderful and reliable than prejudices, it should cause us to consider how our own “training and experience” — may cause us to read something into the overall picture that is not there.

As an obvious example of what I’m talking about, what law enforcement wants to see has far too often caused them to believe that it was actually seen.  Suddenly, an unarmed legless man in a wheelchair is a threat and needs to be forced out of the wheelchair with the use of a taser and left lying on the ground with his genitals hanging out for all to see.  An ordinary law-abiding citizen with his back to the officer is a threat and must be shot. (After which, the unnecessary and unprovoked act previously accurately described by the officer as “fucked up” becomes merely a mistake which must be covered up, or worse yet, is found to nicely fit within departmental policies!)

And everyone arrested, as well as a lot of people who aren’t, is —if for no other reason — guilty because police officers say so.  More often than you know, they will even lie in court to make it so.  This is why in some more advanced countries, they either already require actual evidence like tape recordings to back up what officers say, or are calling for such requirements. (Laws requiring this in California were vetoed by Governor Schwarzeneggar.  No doubt because of the realization these rules would result in fewer convictions since so many currently depend on the ability of police to get away with lying in court.)

As if lying in their own reports is not enough, law enforcement can also be counted on to try to intimidate others into lying for them. Or to prevent them from testifying at all if their story contradicts the police.  Increasingly, witnesses are being harassed simply for watching or recording police actions.

But I digress.  Somewhat.

To bring us back to the theme with which I started: there are multiple reasons for this despicable behavior on the part of law enforcement officers.  Partly, it has to do with the ontological beliefs of and concerning law enforcement.  They can be trusted to find the truth.  Their only motivation is to protect us and bring wrongdoers to justice.  They would not lie, because that would undermine everything they purport to stand for.

But officers have their own prejudices — their “training and experience” — which makes them prone to jump to conclusions.  Once having found solace in a particular conclusion, they are loathe to abandon it for the truth.  Any new incoming evidence morphs — or is forcibly morphed, if need be — to support their conclusion.  (Just as happened with the amateur ethnographers during and after the voyages of Captain Cook, but for details on that, I’ll refer interested parties to the book.)

I’ve “picked on” law enforcement here because they provide the most obvious and consistent examples of mistakes resulting from faulty ontological beliefs and their — and our — unwillingness to stop and question those beliefs.  But this problem is not limited to law enforcement.  Other kinds of witnesses, as well as judges, prosecutors, defense attorneys, jurors, newspaper reporters and others involved in the legal process harbor this same condition, because it’s part of the human condition.  (And, presumably, all the parties just named are human.)

This is one reason jurors are instructed to avoid coming to a conclusion before all the admissible evidence has been presented.  This is what jury deliberations are for.  Having twelve different people each with, hopefully, a different set of “training and experience” (i.e., prejudices) deliberately examining the evidence and arguments presented to them, mitigates the problem to some extent.  Unfortunately, when jurors refuse to consider the possibility that their own prejudices are unfairly influencing their decisions we lose the benefit of their deliberations.  Justice is lost.

Witnesses do lie.  And not just accused persons and their “supporters,” but even police officer witnesses.  Like Red Riding Hood, they can focus on the wrong things.  For us, the Red Riding Hood punchline worked because we expected something else.  Our collective ontology contains the “normal” Red Riding Hood story, and the joke worked because it didn’t fit our ontological beliefs about Red Riding Hood and the Big Bad Wolf.

When a witness testifies about someone’s big eyes, ears and teeth and tells us this proves their guilt, we need to take a closer look.  Particularly with law enforcement, which has repeated exposure to ontological beliefs that people who look a certain way (e.g., wearing red, or blue, or black, or tattoos) are part of the set of “criminals,” we should probe deeper.  We should also try to set aside whatever preconceived ideas we’ve brought with us, or have unwittingly adopted or developed while receiving evidence and argument.

We should remember that sometimes the wolf isn’t out to get anyone.  Sometimes witnesses’ claims to the contrary are just crap, inspired by prejudice, training and experience.

A theory can be proved by experiment; but no path leads from experiment to the birth of a theory.

Experiments help us find the answers to problems.  Experiments help us find the Truth, or the closest thing to it.  Without experiments, the world so many of us take for granted today would not exist.

But what does this mean?  What is an experiment?  And why am I, an attorney, writing about it on a legal blog?

Defining Our Terms

Before getting to the “why,” let’s talk a little more about the “what.”

Science is made up of two basic activities: theory and experiment.  Theories try to say how the world is; experiments verify theories, and the subsequent technology can change the world. … From the time of the Scientific Revolution a sort of collective methodology has given free rein to three basic human interests: speculation, calculation, and experimentation.  (Paolo Rossi and Cynthia de Nardi Ipsen, The Birth of Modern Science (2001) Wiley-Blackwell, p. 183.)

Webster’s Third New International Dictionary (2002) defines “theory” variously as “a belief…a judgment, conception, proposition…formed by speculation or deduction or by abstraction and generalization from facts.”  A theory is “a working hypothesis.”  And a “hypothesis” is “a proposition tentatively assumed in order to draw out its logical or empirical consequences and so test its accord with facts that are known or may be determined.”

In short, a hypothesis is a guess and a theory is something not yet proven.

Theories come in varying strengths; that is, although a theory is always “theoretically” capable of being disproved, some theories are based on (or explain, or make sense of) so much evidence as to be considered true and only nutcases or fringe elements doubt them, while others are, as the definition suggests, “formed by speculation” so outrageous that only nutcases or fringe elements believe them.

How do we decide if a theory is believable, or doubtful?  The answer is with experiment, defined by Webster’s as “a test or trial…the process or practice of trying or testing.”

And now we arrive at Law.  The American legal system is “adversarial.”  Our “experiments” are performed in courtrooms, in front of witnesses.  (By that, I actually mean the jury and the public; not the witnesses who testify.)  The courts are where we test our hypotheses and theories concerning cases.

This system is premised on the well-tested principle that truth — as well as fairness — is ‘best discovered by powerful statements on both sides of the question.’”  (Commonwealth v. Rahim (Dock. #SJC-09031 Suffolk Co. Mass 2003) not paginated.)

Or, as the United States Supreme Court put it in 1975:

The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.  (Herring v. New York (1975) 422 U.S. 853, 862 [95 S.Ct. 2550, 45 L.Ed.2d 593].)

So far so good.  But why did I feel the need to start this article by talking about scientific theories and experiments?  How does that relate to the practice of law and the administration of justice?

The Search for Truth

The answer is partly that the development of the modern legal system and modern science grew out of the same primordial soup.  Descartes, Bacon, Hume and a whole host of other philosophers were all concerned with developing a foundation and procedures for the ascertainment of Truth (with a capital “T”).

And Truth is exactly what we seek — or at least it is what we should seek — before making monumental decisions affecting the lives of other people. Because in Science the development of hypotheses, experimentation and the pursuit of theories may lead to the creation of new gadgets, greater production of food and, in short, may add to the lives of many; but in Law (at least the Criminal Law with which I’m concerned), we are taking away.

A person charged with a crime often loses their liberty, at least for a period of time.  The more serious the crime, the larger the portion of their life is lost.  In the most serious crimes, we may actually take away the remainder of a person’s life, by life imprisonment or even by killing them.

When we’re going to take away from someone’s life, we should be sure that we are not taking away from the life of an innocent person.

Until we complete a trial — and unfortunately, because we don’t always follow the foundational principles of our legal system, sometimes even after we complete a trial — we can’t really have confidence in this.  Sure, some people will feel confident that the right person was suspected, investigated, arrested, charged and convicted even without a trial that comports with our well-thought-out, historically-based and time-tested principles.  But then, some people believe you can tell the future by reading palms, consulting the Zodiac, or sacrificing chickens.

Several hundred years of experimentation have taught us that our system requires more.

The Hypothesis Shall Not Set You Free

There is a close tie between the ascertainment of Truth in Science and Law — when a crime has been committed, the police do a little bit of looking around.  At some point — usually fairly quickly — they come up with a hypothesis as to what happened and who is responsible.  They pass this information along to the District Attorney’s office.  Someone there looks at it and decides if the hypothesis seems reasonable.  If it does — and, sadly, sometimes even if it doesn’t — charges are filed.  Perhaps a deeper look is taken; a more-targeted investigation uncovers additional evidence to support the hypothesis.

Somewhere in this process, the hypothesis develops into a theory.  The prosecution prepares for trial where the hypothesis, they hope, will be proved.

But because we’ve had hundreds of years of experimenting with the best way to ascertain the Truth, we’ve come to understand that the adoption of a theory is a complicated and tricky thing.  Way back when we’re coming up with hypotheses, the process begins to develop problems.  Ever heard the saying, “When the only tool you have is a hammer, everything begins to look like a nail?”  The same concept applies in developing hypotheses and theories.  The police find a suspect.  They develop a hypothesis.  As it grows into a theory, the search for evidence to support the theory almost always turns into a search for evidence to support the original hypothesis.

We know that pursuing one particular theory can make it hard to find the Truth.  (Max Planck once remarked that “a new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.” (Thomas Kuhn, The Structure of Scientific Revolutions (1964) University of Chicago Press, p. 151.))  Pursuit of the Ptolemaic theory that the Universe rotated around the Earth lead to an incredibly complicated astronomical theory between the second through the sixteenth century.  Eventually, beginning about the sixteenth century, when the observations (evidence) became too difficult to fit into the theory, the Copernican Revolution — part of the Scientific Revolution — began to take over.

The desire to maintain belief in the original Ptolemaic theory was so strong (especially among Christians) that some people were put to death, burned at the stake.  Challenging treasured theories isn’t easy.  Arriving at the Truth sometimes comes at a heavy cost.

Ours is Meant to be an Adversarial System

What we should have learned by now — what our legal system purports to believe — is that the best way to find out the Truth is to have some people explore one theory and some people explore another.  Then we compare the theories to see which seems to better fit the facts, or evidence.

This is the best way to find the Truth in Science; it is the best way to find the Truth in Law.

Someone cue the defense attorney.

[T]he adversarial process protected by the Sixth Amendment requires that the accused have counsel acting in the role of an advocate. The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.  (United States v. Cronic (1984) 466 U.S. 648, 656 [104 S.Ct. 2039, 80 L.Ed.2d 657] (internal citations and internal quotations removed).)

I hear — often enough that I decided to write this article — people asking why I would want to be a defense attorney.  The reason is found in the second phrase of Einstein’s quote with which I started this article.

[N]o path leads from experiment to the birth of a theory.

By the time we get to the level of the experiment, we’re already working off of a particular hypothesis; we already have “a working theory.”  But it’s too easy for us to forget that if what we really seek is the Truth, then trying to disprove a theory is as important as trying to prove it.

And so our criminal justice system, which purportedly aims at finding the Truth, is based on an interesting idea:  Why not assign someone the job of trying to disprove the theory?

The Constitution of the United States, where it addresses criminal prosecutions, was meant to implement this idea.  Our Founders believed in it even more strongly we do.  As the United States Supreme Court noted in 1984:

When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred.  (United States v. Cronic, supra, 466 U.S. at 656.)

Without good defense attorneys (and courts even-handedly enforcing the Law!), however, this cannot happen.  Instead, our trials become show trials, shams, kangaroo courts.

[I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.  As Judge Wyzanski has written: “While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.”  (United States v. Cronic, supra, 466 U.S. at 656.)

Why I Do What I Do

The reason I do what I do and the reason we need good defense attorneys is to ensure that we sacrifice neither the Truth, nor unarmed prisoners, to the State’s trained gladiators.

My hope is not that I “help put murderers and rapists back out on the streets,” but that because I do what I do — in the words of Chief Judge Irving R. Kaufman of the United States Court of Appeals for the Second Circuit — “justice will emerge from the forensic duel in the courtroom.”  (Irving R. Kaufman, “Does the Judge Have a Right to Qualified Counsel?” (May 1975) 61 A.B.A. J. 569, vol. 61, p. 570.  [How ironic that Judge Kaufman's main claim to fame is the unjust sentencing of Julius and Ethel Rosenberg to death.])

Final Note

Not infrequently, people reading my articles, or talking to me, get the impression that I “hate” police officers, district attorneys and anyone who tries to take criminals off the streets.  This is not true.  I dislike dishonest officers and prosecutors who lie, distort the Truth, or hide evidence that would help arrive at the Truth, in order to convict my clients.  I don’t hate — or even dislike —the honest police officers and decent prosecutors who serve as necessary a purpose to the system as do I.

I believe in the adversarial system.  And remember that I said that the adversarial system requires able adversaries on both sides, pursuing different theories, and opposing one another.  But being “adversarial” does not require hating the other.  It doesn’t require underhandedness.  It doesn’t require refusing to turn over evidence as required by law.  It doesn’t even necessarily mean not cooperating with the other, when cooperation is appropriate.  (Fleshing this out will have to be left for another article.)

Ideally, I strive to meet Shakespeare’s description as presented in The Taming of the Shrew:

And do as adversaries do in law,
Strive mightily, but eat and drink as friends.

My job, our system of Justice, and the quest for the Truth in criminal cases requires me to be the best and most determined adversary I can be.  It doesn’t require me to “hate” anyone.