Criminal Law 2.0

Alex Kozinski, a federal appellate judge on the Ninth Circuit, has just published a powerful critique of the American criminal justice system in the Georgetown Law Journal (titled “Criminal Law 2.0”).  He begins, “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 the common myths that he goes on to persuasively debunk:

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

Judge Kozinski continues: Because the items listed above are untrue, there are “reasons to doubt that our criminal justice system is fundamentally just….I think it’s fair to assume–though there is no way of knowing–that the number of exculpations in recent years understates the actual number of innocent prisoners by an order, and probably two orders, of magnitude.”

He skillfully pulls back the curtain on our criminal system and spares no one – the police, the prosecutors, and the judges (when wrongful convictions are exposed, “the trial judge is usually given a pass, as if he were merely a bystander who watched helplessly while an innocent man had his life ripped away from him.  I don’t buy it.”)  

The article is not just a recitation of problems.  He offers many excellent suggestions for improving our legal system.  Read the whole thing

Check out Judge Kozinski’s remarks here last summer at a book forum on prosecutorial abuse.  And if you want still more, check out the article he co-authored for my book In the Name of Justice, titled “You’re (Probably) a Federal Criminal.”