To lawyers, Kozinski needs no introduction. To the public, he is a Reagan appointee and widely regarded as one of the top appellate minds in the country.
His article attacks the convenient fictions of the criminal justice system and proposes specific measures that attorneys and judges can take to improve the system. If you’re a student of criminal justice in America, then it’s well worth your time (If you’re a potential client, feel free to skip this. I’m looking at it for you.).
- Eyewitnesses are highly reliable.
- Fingerprint evidence is foolproof.
- Other types of forensic evidence are scientifically proven and therefore infallible.
- DNA evidence is infallible.
- Human memories are reliable.
- Confessions are infallible because innocent people never confess.
- Juries follow instructions.
- Prosecutors play fair.
- The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
- Police are objective in their investigations.
- Guilty pleas are conclusive proof of guilt.
- Long sentences deter crime.
Suggestions for juries
- Give jurors a written copy of the jury instructions.
- Allow jurors to take notes during trial and provide them with a full trial transcript.
- Allow jurors to discuss the case while the trial is ongoing.
- Allow jurors to ask questions during the trial.
- Tell jurors up-front what’s at stake in the case.
- Give jurors a say in sentencing.
Suggestions for prosecutors
- Require open file discovery.
- Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations.
- Adopt standardized, rigorous procedures for eyewitness identification.
- Video record all suspect interrogations.
- Impose strict limits on the use of jailhouse informants.
- Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process.
- Keep adding conviction integrity units.
- Establish independent prosecutorial integrity units.
Suggestions for trial judges
- Enter Brady compliance orders in every criminal case.
- Engage in a Brady colloquy.
- Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.
- Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
- When prosecutors misbehave don’t keep it a secret.
- Abandon judicial elections.
- Abrogate absolute prosecutorial immunity.
- Repeal AEDPA section 2254(d).
- Treat prosecutorial misconduct as a civil rights violation.
- Give criminal defendants the choice of a jury or bench trial.
- Conduct in depth studies of exonerations.
- Repeal three felonies a day for three years.
Do I agree with every one of Judge Kozinski’s proposals? Probably, but I’d have to think about each idea more carefully. You should too. I do agree with the idea that we all need to use data and evidence to question our assumptions, and be open to the idea of change. As Kozinski concludes his article: ‘Nuff said.
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