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Q: Why Is Criminal Procedure Such a Mess?


A:  Because there's too much of it and it's too complex.

The purpose of criminal procedure is to allow the tribunal to discover the truth about the defendant's charged conduct.  In the huge majority of cases, the basic question is simple:  Did he do it or not? 

Of course it's not quite that simple.  The court's factual determination has to offer the accused essential fair play.  Thus, as everyone agrees, he needs to be apprised of the charges against him, be given the opportunity to select an unbiased jury and confront and cross-examine his accuser, and be allowed to call witnesses in his defense.  He has the right to a lawyer and to obtain exculpatory information in the government's possession.  He has the right to a public trial.  He can't be forced to testify against himself (even though he's virtually always the person who knows the most about the crime).  His guilt must be determined beyond a reasonable doubt.  If he probably did it, that's not good enough.  If there's an erroneous acquittal, tough luck for the government.

That is not an inconsiderable list, and it's not a complete one either  --  I'm sure I've missed more than a few things.  But you get the point.  The basics of fair play are not that hard to figure out or put down on a piece of paper.

So why is my book of the Federal Rules of Criminal Procedure two inches thick with over 1000 pages of fine print?  Why does it take months or (more commonly) years to litigate a felony indictment?  Why have the burdens of litigation come to the point that ninety percent of cases are disposed of by the dumbed-down charges that find their way into plea bargains?

Principally because, in the quest for unerring justice, we have devised a system so larded with complexity that it's increasingly incapable of delivering basic justice. 

Professor Richard Epstein explains it better than I could in his book, Simple Rules for a Complex World, Harvard University Press, 1995:

The desire for justice in the individual case is one of the strongest forces shaping the operation of legal systems. A great deal of law is made or applied in the context of individual cases, before both judges and administrators. Within that framework, the stated function, as well as sworn duty, of the judge or administrator is to apply the general law to the facts of a dispute in order to
reach the correct result. An error in outcome is a miscarriage of justice which undercuts the moral authority of the law and reduces its effectiveness in the control of human behavior. It is therefore understandable that to avoid these injustices considerable resources are devoted to developing procedures that allow for the orderly presentation and evaluation of the relevant evidence.

The demand for justice is often regarded as sacred, as a good beyond price. Unfortunately, in one critical respect the thirst for justice is similar to the demand for any other desirable commodity. The demand for justice is subject to the law of diminishing returns. The initial improvements in the legal system come easily: the law can give all persons notice of the charges that are brought against them; it can give both sides an opportunity to present evidence and to cross-examine the witnesses for the other side. Implementing these common rules of natural justice will lead to major improvements in the legal system, relative to one that contains no procedural safeguards.

But perfect justice demands more than incremental improvements in the operation of the system. It aspires to rooting out error in every individual case. Simple rules do not meet that exacting standard. At best they are only tests; and tests are rules of thumb that work most of the time, but
are known and expected to fail some of the time. To adopt a simple rule therefore is to make an open acknowledgement that the rule cannot be perfect because it will generate an unjust outcome in at least one case, and doubtless in more. Even if we cannot identify which case that is, we know that the simple rule decisively thwarts the goal of perfection.

Complex rules avoid so gross and impolitic an admission up front. If the law can identify enough factors, can indicate the ways in which they should be taken into account, can specify the appropriate burden of proof, and can provide for the exhaustive collection of evidence, then maybe, just maybe, the legal system will reach the heady level of perfection to which it aspires. The upper potential of performance in a complex system is always higher than it is in a simpler system that confesses its weaknesses at the outset, and accepts not merely the possibility, but also the certainty, of bad outcomes and compelling counterexamples.

Yet the gains from seeking perfection are an illusion, for with complexity come the opportunities for gamesmanship that will be part and parcel of social life so long as resources are scarce and individuals are motivated by
self-interest. The relevant comparison between simple and complex rules should be conducted not in the language of aspiration, but in the language of realizable achievement. It is that more humble task which simple rules best discharge, for their relative cost-effectiveness and certainty forestall the vast amounts of intrigue brought into the legal system by the relentless, if naïve, pursuit of perfection. The only question for the legal system is how it will make its errors, not whether it will make them. Simple rules are adopted by people who acknowledge that possibility of error up front, and then seek to minimize it in practice. Complex rules are for those who have an unattainable vision of perfection.


[N]o set of rules will be perfect in its application; indeed, knowing when to quit is one of the driving forces behind a set of simple rules. Nonetheless, even though there are some daunting exceptions, [simple] rules do have the virtue of offering solutions for 90 to 95 percent of all possible situations. Never ask for more from a legal system. The effort to clean up the last 5 percent of cases leads to an unraveling of the legal system insofar as it governs the previous 95 percent. 

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