2071) If a defendant is guilty, he should be convicted. If he is not guilty, he should be acquitted. An erroneous acquittal should be a source of dismay, not indifference.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2072) [B]y law I had to tell the jury [in the Lisa Steinberg murder case] it could draw no adverse inferences from a defendant's failure to testify, even though adverse inferences were perfectly logical and warranted under the circumstances.

There's a collapse of common sense here. Imagine this happening to you. Your husband goes into a room with your daughter, and when he comes out, she's unconscious. You ask, "What happened in there?" If he refuses to answer, wouldn't you draw an inference that he was behaving abnormally and that perhaps he had something to do with your daughter's condition? Of course you would! And so might any jury, except that I had to instruct them otherwise.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2073) We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don't know anything and can't read.

Mark Twain (Samuel Clemens)
speech in London (7/4/1873)
Sketches, New and Old (1875) [QMT]/[TQ]
quoted by Harold J. Rothwax in
Guilty: The Collapse of Criminal Justice (1996)

2074) Although commentators often assured the public that the [O.J. Simpson criminal] trial was an aberration whose bizarreness, pettiness, length, and disorganization were not common to "normal" courtrooms, I saw it another way. As the weeks and months progressed, the Simpson trial became for me a sterling example of everything that is wrong with our criminal justice system rolled into one spectacular event. We can't let ourselves off the hook by saying it was unusual - for it is precisely the same formalism and complexity of our criminal law that plague all trials that allowed in this one the most egregious behavior.

[...] What have we learned from the O.J. Simpson trial about the pursuit of justice in our society?

• That power and money have the effect of creating elaborate screens that hide the truth.



• That jury selection is hostage to peremptory challenges that, with the help of scientific jury experts, can mold a jury in the hope that it will be swayed by emotion and innuendo, not fact.



• That trial by media is a real specter in this age of unrestrained tabloid journalism.



• The clever defense attorneys, coupled with passive judges, can fashion "evidence" out of innuendo.



• That the only person who is protected from having to explain himself and his actions is the very person who is accused of the crime - and who may know the most about it.



• That juries are fragile bodies, subject to emotion, suggestion, and speculation, and that often juries are comprised of citizens who lack the capacity to intelligently evaluate evidence.



• That the American courtroom is dangerously out of control.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2075) If truth is the goal - and it is where discovery is concerned - there is no reason in law, morality, or common sense why a defendant's access to the People's case should not be conditioned on his willingness to give up any right to misuse that evidence. Therefore, from a public policy perspective, the argument against full reciprocal discovery is hard to understand. Surprise, from with the prosecution or the defense, supports the idea that justice is a game of chance and wit, not a search for the truth.

If we believe that truth is the goal, I suggest a very simple solution. It's so simple, so obvious, so full of common sense, it seems unthinkable that such a plan would ever be adopted in a system as cluttered as ours. But perhaps this idea will see the light of day in the future.

I called it the Sealed Envelope Proposal. The Sealed Envelope Proposal provides a method that would both preserve the defendant's right to discovery and at the same time prevent him from using discovery material to concoct a false story.

After a defendant is formally charged with a crime, if he wishes to obtain discovery of the People's case, he should be required to write down his version of what happened and place the account in a sealed envelope. The envelope would than be turned over to the judge. The contents of the envelope would not be seen by the prosecutor or anyone else unless the defendant took the stand and testified in his own defense. Only then could the envelope's contents be revealed to assure that the defendant's story is consistent with his trial testimony or, in the event it is not, it would be available to impeach him.

Since there is no constitutional right to discovery, that state is free to condition the terms under which discovery will be provided. Thus the Sealed Envelope Proposal.

We are not requiring or compelling the defendant to do anything. We are conditioning his access to the People's case on his assurance - in a sealed envelope - that he will not misuse the information for perjures purposes.

In my opinion, being asked to place his story in a sealed envelope does not violate a defendant's rights. It does not convict the innocent. It merely prevents the lie.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2076) There are no simple solutions to the disorder of our courts. But I believe that our courts would work better if we made the following ten basic changes:

1. The vast and unknowable search-and-seizure laws, based loosely on the Fourth Amendment, must be simplified and clarified to prevent a guessing game on the street and in the courtroom. As long as the law remains unknowable, there is no justification for the mandatory exclusion rule.



2. The Miranda ruling is an unnecessary overreaction to past abuses that videotapes and other technology can now preclude, and it should be abandoned.



3. Speedy trial statutes, based on a precise formula of days and weeks, only protect those who are most interested in getting away with crimes and manipulating the system. Reasonableness, not a ticking clock, should determine speed.



4. The right to an attorney should not be a factor in the investigative stage, but only in the pretrial and trial stages. Asking questions and receiving answers from suspects is a legitimate aspect of crime-solving.



5. If it appears from the evidence that the defendant could reasonably be expected to explain or deny evidence presented against him, the jury should be instructed that they may consider his failure to do so as tending to indicate the truth of such evidence.



6. If defendants seek pretrial discovery from the state, they should be asked to place a written version of their story in a sealed envelope before receiving that discovery to preclude manipulation and lying.



7. Peremptory challenges should be limited to three or fewer to avoid stacked juries.



8. Unanimous jury verdicts are less likely to speak the truth than majority verdicts, and should be replaced by ten-to-two or eleven-to-one verdicts in criminal trials.



9. American judges should be allowed a more active role in the courtroom to assure that the process is swift, sure, and according to the laws of evidence.



10. The fact that, in recent years, an ever-increasing number of major criminal cases have had decisions reversed on technical (and often irrational) grounds, unrelated to our core values, demands we reevaluate our fundamental philosophy and procedures.

Finally, we should return to the premise that the criminal justice system is engaged in a search for the truth. For without truth, what can be the point of lofty principles? Without truth, how can our society properly maintain the ideals, values, and principles upon which it was founded? If, as Disraeli said, justice is truth in action, it's time for us to act.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

[Note: See #1667-1670 and #2059-2070 for additional quotes from Guilty: The Collapse of Criminal Justice]