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The Trial System on Trial

October 1995

Over the years, a number of Atlantic contributors have offered broad considerations of the American trial system. Some have questioned its efficacy as a vehicle for administering justice, while others have commended its efforts to seek truth in as fair and judicious a manner as possible.

In "Who Killed Harry Gleason?" (December, 1974) Andrew Hacker argued that the traditional "adversary system" is ill-suited for achieving justice because prosecutors and defense attorneys pitted against one another in the courtroom inevitably pursue victory before truth.

In "The Trial Judge's Freedom and Responsibility" (July, 1952) Charles Wyzanski explained that though the adversary system does pit two clearly self-interested parties against each other, the judge's careful observance of legal and procedural rules should guarantee each side a fair and equal chance to make its case, and to ensure that nobody has the opportunity to impose a private viewpoint or bias.

Charles C. Nott's "Coddling the Criminal" (February, 1911) contended that the framers of American criminal law, having made extravagant efforts to ensure that innocents brought to trial do not end up unjustly convicted, had actually pushed the law too far in the opposite direction, making it excessively difficult to obtain convictions for those who truly are guilty.

In "Crime, Confessions, and the Court" (September, 1966) Robert Cipes acknowledged the tension that exists between efforts to identify and punish all those who are guilty on the one hand, and efforts to prevent abuses of defendants' civil rights on the other. He explained that the then-newly-enacted Miranda rights (which render improperly obtained confessions inadmissible evidence in court) would mean fewer police abuses of power in the form of back-room "third-degree" questioning, but at the same time would ensure that a larger number of guilty defendants would escape conviction.

In "On the Jury" (June, 1979) Vivian Gornick described her experience as a jury member in the trial of two New York City youths. Her behind-the-scenes commentary on what took place in the deliberating room tells of bickering among jurors who had formed intractable judgments about the defendants' guilt or innocence before the evidence was even presented.

Copyright © 1995 by The Atlantic Monthly Company. All rights reserved.
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