2105) The criminal justice system of the United States is, in many ways, our proudest boast, incorporating the best of post-Enlightenment society and daily demonstrating the free and final authority of the ordinary people, sitting as juries, to rule the state's awful power to punish. Yet the system often seems to defeat the very principles it purports to serve: the fair and efficient separation of guilty from innocent, according to law, in a dignified and rational proceeding, with appropriate respect for the sovereignty of the individual. Too often the burnished ideals are borne on the back of a stumbling creature, lost in a fog of uncertainty. Common sense finds itself groping through a legal maze, common practice has an aura of questionable legality, and many common assumptions - of law enforcement people as well as spectators - turn out to be contrary to the requirements of the law. Occasional public exposure of these failures contributes to a general belief that the law is indeed an ass (at best) - inept, pretentious, and misguided.

To perceive that a prized national institution is failing in some important aspect is a bitter and demoralizing discovery. For the ends of justice are a vital social interest. [...] [T]he criminal justice system [...] affects the social peace and confidence of the nation. And our faith in our criminal justice system contributes heavily to the belief that we live in a civilized society.

Of the many ways we strive to make sense of the chaos the surrounds us, the quest for justice is one of the most urgent. The moral imperative - the need to have things come out right - is a major driving force in the way we seek to order our world. [...] [I]t is [...] terribly important to us personally and to our pride in the society we inhabit to believe that rewards and punishments are distributed in accord with what the collective ethic deems just deserts. [...]

Sadly most of us are resigned to he injustice of "life." We don't really expect nature to bless the virtuous or plague the evildoers. But we demand more of our government. And government's most visible agency for dispensing justice is, of course, the court system and especially the very-newsworthy criminal court. In an unjust world, we expect - we demand - recognizable justice from our courts.

H. Richard Uviller
Virtual Justice (1996)

2106) [W]e lawyers make it up as we go along. [...] [W]e "do justice" by taking a set of inexact legal metrics, consulting our various fragments of moral ethics, appealing reverentially to common sense, and hoping the outcome accords with some shared notion of the appropriate response of a civilized people to a cruel affliction.

H. Richard Uviller
Virtual Justice (1996)

2107) [O]ur courts must sort the guilty from the innocent with the highest possible factual accuracy within a process that accords due deference to basic principles of human dignity.

H. Richard Uviller
Virtual Justice (1996)

2108) Lawyers talk a lot about the facts. [...] But what are "facts"? To courtroom lawyers, facts are the relics of past events, things that actually happened out there in the real world. Today the events are gone, vanished into the elusive, misty realms of memory and cause. Now, in court, we must produce some evidence of these vanished events. Only a moment's reflection brings any thoughtful observer up against the Great Evidentiary Riddle - a basic, inescapable, and deeply perplexing uncertainty in the relation between present fragmentary and subjective data and the objective past. To what extent is the knowable, transmissible fact the reality it purports to represent? How well do the fragments of the past that come to us by the selective process of memory or the happenstance of preservation represent the complex reality of the former present?

Fortunately, the law ignores these troubling philosophical issues [...]

H. Richard Uviller
Virtual Justice (1996)

2109) In criminal cases, the burden of persuasion is always on the prosecution. And to a high degree of certainty: "beyond a reasonable doubt." That allocation of burden - and only that - is what we mean by the presumption of innocence.

H. Richard Uviller
Virtual Justice (1996)

2110) I rank high among our basic drives a need to make sense of things. The human brain is wired, I am convinced, to abstract principles from perceptions, to form theoretical constructs around experience. It is important, then to keep the faith in these constructs once they have been articulated. And the discontinuities in legal doctrine are disturbing for that reason. They suggest either weakness in the construct or lack of rigor in its application. This may be too hard a judgment on the flawed human endeavor to keep the governing principles of the law clear and straight. But it suggests that the interpretation of law is a sincere and useful enterprise of articulation and clarification.

H. Richard Uviller
Virtual Justice (1996)

2111) According to the FBI, the murder rate in the United States increased 62 percent between 1987 and 1992, when 13,220 Americans were murdered with handguns. That number compares with a total of 367 in Great Britain, Sweden, Switzerland, Japan Australia, and Canada combined, countries whose aggregate population of 239 million is comparable to the 249 million in the United States.

H. Richard Uviller
Virtual Justice (1996)

2112) Aggressive police patrol carries an unmistakable whiff of fascism. We can't let civic fear put basic liberties at risk. At the same time, I deeply believe that before we can call ourselves civilized, the government must do what is can to secure the physical safety of its citizens; in today's urban world, that means first and foremost: get the guns off the street.

H. Richard Uviller
Virtual Justice (1996)

2113) My thinking self, I say (mangling Descartes), is the essence of me. And what it means to live in a liberal democracy is that my sovereignty over myself is respected by the government.

H. Richard Uviller
Virtual Justice (1996)