Why Judges and Prosecutors Don’t Care If They’re Right

By Matt Kaiser


Judge Alex Kozinski has written the preface for the latest edition of the Georgetown Law Journal’s Annual Review of Criminal Procedure.

Put simply, it’s a barn burner.

He lays out 12 views that are widely held by judges and lawyers to justify what happens in our criminal justice system — that forensic evidence is reliable, that juries follow jury instructions, that human memory is reliable, that the prosecution is at a disadvantage because of the burden of proof, that long sentences deter crime — and explains why there is substantial reason to doubt each of them based on what we know about the how the legal system actually works, what we’ve learned from empirical studies of how human brains function, and scientific literature casting doubt on much of what happens in the courtroom.

For example, on the reliability of forensic evidence, Kozinski quotes a piece in the journal Science that concludes that:

Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).

Another powerful Kozinski point is about jury instructions.

Judges often instruct juries on the law, explaining relatively nuanced legal doctrines, only one time. Orally. Many don’t give the juries a copy of the instructions. Appellate courts then presume, as a matter of law, that the juries understand what they’ve been told and are following it to the letter.

Seriously? Have these judges ever been to a conference and heard people receive an orientation? Most of the time people don’t follow directions to the bathroom without hearing them more than once. The only way you’d think juries actually know what they’re supposed to do from this process is if your only experience of actual humans came from reading appellate decisions.


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