Judge Kozinski's Reflections on the Criminal Law System in the U.S. (7/17/15; 7/23/15)

The Volokh Conspiracy has a series of blog entries serializing a recent law review article by Judge Alex Kozinski in the Annual Georgetown Review of Criminal Procedure.  The article is a preface titled Criminal Law 2.0.  The article in all its splendor (meaning fully populated with footnotes) is here.  The serialization on The Volokh Conspiracy strips out the footnotes and makes some cosmetic changes, so I thought I would offer links here to both the serialization and to the fully footnoted version.

Here is The Volokh Conspiracy serialization (in chronological order):

• 12 reasons to worry about our criminal justice system, from a prominent conservative federal judge (The Volokh Conspiracy 7/17/15), here.  
• Judge Kozinski on wrongful convictions and excessively long sentences (The Volokh Conspiracy 7/15/15), here.
• Judge Kozinski on juries (The Volokh Conspiracy 7/16/15), here.
• Judge Kozinski on prosecutorial misconduct (The Volokh Conspiracy 7/17/15), here.
• Judge Kozinski on reforms that can help prevent prosecutorial misconduct (The Volokh Conspiracy 7/17/15), here.
• Judge Kozinski on what judges can do to improve the criminal justice system (The Volokh Conspiracy 7/20/15), here.
• Judge Kozinski offers two more ways to improve the criminal justice system (The Volokh Conspiracy 7/21/15), here.
• Judge Kozinski with four final ideas on improving the criminal justice system (The Volokh Conspiracy 7/21/15), here.

Judge Kozinski is an important contributor to the law general and to tax crimes law specifically.  I have discussed his offerings on this blog.  (You can search on his name in the upper corner and get all of the blog entries in which he is mentioned.)

I offer Judge Kozinski's opening to pique your interest:

Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial. 

Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape. 

The “ten guilty men” aphorism is just one of many tropes we assimilate long before we become lawyers. How many of us, the author included, were inspired to go to law school after watching Juror #8 turn his colleagues around by sheer force of reason and careful dissection of the evidence? “If that’s what the law’s about, then I want to be a lawyer!” I thought to myself. 

But is it? We know very little about this because very few judges, lawyers and law professors have spent significant time as jurors. In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense. Here are just a few examples:

Judge Kozinski then offers 12 myths that we have about our criminal justice system that may or may not be correct.  He discusses each of them.  I offer here the list, but not his discussion.  Click on the links and enjoy a great mind at work.

1. Eyewitnesses are highly reliable. 
2. Fingerprint evidence is foolproof.
3. Other types of forensic evidence are scientifically proven and therefore infallible. 
4. DNA evidence is infallible. 
5. Human memories are reliable.
6. Confessions are infallible because innocent people never confess. 
7. Juries follow instructions. 
8. Prosecutors play fair.
9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt. 
10. Police are objective in their investigations. 
11. Guilty pleas are conclusive proof of guilt.
12. Long sentences deter crime.