In an article published in 2015 in the Georgetown Law Journal, United States Ninth Circuit Court of Appeals Judge Alex Kozinski addressed twelve common misconceptions people have about the law.  Judge Kozinski states in his article, “Criminal Law 2.0,” that “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.”  In the article, he presents twelve common misconceptions, examines problems with juries, prosecutors and judges, and provides multiple recommendations to improve the system.  The Department of Justice provided a response to the Judge’s article; a link to the response is below.

The twelve common misconceptions, followed by select excerpts from the article, are:

1. Eyewitnesses are highly reliable.  “This belief is so much part of our culture that one often hears talk of a ‘mere’ circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races.”

2. Fingerprint evidence is foolproof.  “Not so.”

3. Other types of forensic evidence are scientifically proven and therefore infallible. “Some fields of forensic expertise are built on nothing but guesswork and false common sense.”

4. DNA evidence is infallible.  “This is true to a point … the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest.”

5. Human memories are reliable.  “Given the malleability of human memory, it should come as no surprise that many wrongful convictions have been the result of faulty witness memories, often manipulated by the police or the prosecution.”

6. Confessions are infallible because innocent people never confess.  “We now know that this is not true. Innocent people do confess with surprising regularity.”

7. Juries follow instructions.  “This is a presumption—actually more of a guess—that we’ve elevated to a rule of law.”

8. Prosecutors play fair.  “The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction … [however] [t]here is reason to doubt that prosecutors comply with these obligations fully.”

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.  “Juries are routinely instructed that the defendant is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt, but we don’t really know whether either of these instructions has an effect on the average juror.”

10. Police are objective in their investigations.  “Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation … [and have] a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted.”

11. Guilty pleas are conclusive proof of guilt.  “Whatever imperfections there may be in the trial and criminal charging process [may be] washed away by the fact that the defendant ultimately consents to a conviction. But this fails to take into account the trend of bringing multiple counts for a single incident—thereby vastly increasing the risk of a life-shattering sentence in case of conviction—as well as the creativity of prosecutors in hatching up criminal cases where no crime exists and the overcriminalization of virtually every aspect of American life.”

12. Long sentences deter crime. “Our intuition about harsh sentences deterring crime may … be misguided.  We may be spending scarce taxpayer dollars maintaining the largest prison population in the industrialized world, shattering countless lives and families, for no good reason.”

Among Judge Kozinski’s recommendations to improve the justice system are:

1. Abandon judicial elections.  “[M]ost judges resist the pressure and remain impartial, the fact that they may have to face the voters with the combined might of the prosecution and police groups aligned against them no doubt causes some judges to rule for the prosecution in cases where they would otherwise have ruled for the defense.”

2. Abrogate absolute prosecutorial immunity.  “[P]rosecutors cannot be held liable, no matter how badly they misbehave, for actions such as withholding exculpatory evidence, introducing fabricated evidence, knowingly presenting perjured testimony and bringing charges for which there is no credible evidence. All are immune from liability. A defense lawyer who did any such things (or their equivalents) would soon find himself disbarred and playing house with Bubba.”

3. Repeal AEDPA § 2254(d). “AEDPA is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice.”

4. Treat prosecutorial misconduct as a civil rights violation. “The U.S. Justice Department seems ready enough to pursue charges of civil rights violations in cases where police have engaged in physical violence, but far more reluctant to pursue misbehaving prosecutors.  But prosecutors can wreck and take lives just like police, and their actions are often far more premeditated than those of officers who may over-react to a belligerent suspect.”

5. Give criminal defendants the choice of a jury or bench trial. “I would think it fair to let the defendant get the choice of judge or jury. Because the government has no constitutional right to a jury, but the defendant does, there should be no constitutional impediment to such a rule.”

6. Conduct in depth studies of exonerations. “The recent spate of exonerations, especially those obtained by DNA evidence, gives us a window as to what can go wrong in our criminal justice system … This should not be a matter left to academia, although much good work is done there now.  Far better, though, if the federal government devoted, say, the cost of one aircraft carrier to analyze and dissect these cases and try to figure out what went wrong and what we can do better in the future.”

7. Repeal three felonies a day for three years. “A big reason prosecutors have so much leverage in plea negotiations is that there are many laws written in vague and sweeping language, inviting prosecutorial adventurism.”

Sources:  44 GEO. L.J. ANN. REV. CRIM. PROC (2015):  http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf.  The DOJ response letter is online at: http://georgetownlawjournal.org/files/2015/11/DOJ-Response-to-Kozinski.pdf.  Related:  Judge Kozinski’s article was referenced in a Spotlight interview with attorney Michael A. Faraone in the July-August, 2015, Criminal Defense Newsletter, Vol. 38, Issues 10 & 11

by Neil Leithauser
Associate Editor

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