Crime and Punishment in American History - Lawrence M. Friedman [246]
In trials themselves, there have been some technical changes. I will mention one, which is symptomatic of broader streams of change. In a famous speech made in 1906, the legal scholar Roscoe Pound castigated the “sporting theory” of trial—a battle of wits between two lawyers who treat the “rules of law and procedure exactly as the professional foot ball coach [treats] ... the rules of the sport.”7 This was before the appearance of a device called “discovery.” The root idea of discovery is simple. Each side, in a civil case, is forced to tip its hand before the trial begins—through depositions and the exchange of documents and other information. The theory is to discourage surprise, save time for judges, litigants, and lawyers, and encourage settlements. From the 1930s on, the states and the federal government radically extended pretrial discovery.
But what about criminal cases? Nobody seriously suggested giving the right of discovery to the prosecution. Should defendants and their lawyers have the right? Learned Hand, in 1923, expressed a conventional view: the defendant already had enough, or too much, “advantage.” He already is “immune from question or comment on his silence” and could not be convicted “where there is the least fair doubt in the minds of any one of the twelve [jurors].” Procedure had always been “haunted by the ghost of the innocent man convicted. It is an unreal dream.” The real enemy of justice, according to Hand, was “watery sentiment” and “archaic formalism” that defeats “the prosecution of crime.”8
Not surprisingly, then, discovery made its way into criminal trials rather slowly. The right was embodied in Rule 16 of the Federal Rules of Criminal Procedure (1940): defendants had substantial rights to discover and inspect “books, papers, documents or tangible objects,” gotten from the defendant or from others, if the items were “material to the preparation” of a defense. (The present Rule 16 is more comprehensive and elaborate.) Over time, other states joined the parade. The main push came in the 1950s, in the era of the Warren Court, a high point of sensitivity to the rights of defendants.dh
Discovery was, in theory, a step away from “archaic formalism” and the extremes of the adversary system. It was also a symptom of the long-term, secular shift in power away from the lay jury and the trial itself toward an administered, bureaucratic, professional system of justice. In this sense, discovery was, to a degree, a blood brother of plea bargaining and the decline of trial by jury.
On the surface, other changes in trials themselves seem more, rather than less, formalistic. As we will see, criminal appeals became more common. Because of this fact, lawyers may have become more prone to shout out “Objection!” at point after point in the trial, and to preserve “exceptions” to rulings of the judge, so as to register grounds for appeal. Systematic evidence, however, is hard to come by. But fear of appeals lay behind curbs on the judge’s power to make sensible (or nonsensible) comments on the evidence, which most states did not allow.10 Judges themselves probably had a horror of committing “error” and getting themselves reversed by higher courts. In the sixties, most of the states permitted the judge neither to summarize nor to comment on the evidence; a fair number, seventeen, allowed summary without comment; eleven states, and the federal courts, allowed both summary and comment. Kalven and Zeisel, who studied jury trials, have figures showing that even in states that allowed comment, not all judges did so. In Pennsylvania and New Jersey, judges used their right to comment in the bulk of their cases. But in Vermont, it was the practice in only about half of all trials; in California and