A New Day In Criminal Court

The reforms I suggested in Criminal Justice Reformed offer the possibilities of more effective and fiscally prudent law enforcement practices and clearly defined areas of responsibility for investigating and prosecuting criminal behavior. Those reforms, while worthwhile in and of themselves, are not enough to reduce the criminal element in society. To better the chances of success in the protection of the citizenry, it is imperative that our system for trying suspects is based upon relevant and factual information acquired through scientific examination, complete investigations, and with the guiding hand of common sense.

With the establishment of the three-tiered enforcement system, we will have created three different levels of offenses. As such, it is appropriate for each level (Federal, State, and Local) to maintain it’s own judicial system. That does not mean that each level needs to operate by different procedures or be bound by different basic principles, but rather that each tier be responsible for trying those offenders who fall within its jurisdiction. As with the combined Justice buildings, Federal and State criminal courts could operate out of a single court complex, while the local courts could preside in multiple local locations. Again, this consolidation of physical locations combined with a central resource and depository center would result in lower costs and improved efficiency.

The Constitution describes many protections for us, as citizens, if we are suspected of having committed a crime. We are protected from police searches without a legal warrant; we are protected from prosecution without a legal indictment; we can not be tried twice for the same crime if we are found not guilty in the initial trial; we can not be compelled to testify against ourselves; we have the right to a speedy trial; and we can not be fined excessive fines or bail, or be subjected to cruel and unusual punishments. The Constitution provides for the protection of the accused and convicted, yet it remains curiously silent about the rights of society in relation to the rights of the convicted. The right of society to be safe from criminal individuals should be greater than the rights of a convicted offender. This is where the system begins to break down.

Rather than be the final stop in the search for truth, our courts are often anything but. Instead, they have become a place of obfuscation, where the truth often runs second fiddle to the games and guiles of the attorneys and judges who seek to increase their reputations rather than protect the public and who engorge their wallets through endless litigation. Evidence that is relevant to a case if often excluded, while inconceivable defense theories are thrown about as facts. Defendants are portrayed as victims of society rather than as individuals responsible for their own actions and procedural errors can convict an innocent man or set a guilty man free. Too often, trials turn on twists of emotion instead of factual evidence.

Prior to taking any case to trial, defendants should be given an opportunity to view the evidence against them and to present their side of the story in what would amount to a short mini-trial. Many suspects, once confronted with an abundance of actual evidence, will admit to their guilt. These individuals should be immediately taken into court for sentencing procedures. Designated courts at each level would have this as their primary task. This would allow for other cases to move more quickly through the system. For those cases where the suspect denies guilt, certain rules and procedures could allow for trials to move more quickly and factually through the courts.

First, juries should be seated randomly, with the least amount of pre-examination possible, so that attorneys on either side can’t “stack the deck” in their favor. To achieve this, jury service should be nearly impossible to shirk, with illness of a juror or their family member, unavoidable, verifiable travel commitments, or severe financial hardship being among the only reasons for postponing a juror’s service. Jurors should not be asked questions about moral beliefs or leanings, because like it or not, we all have them to one degree or another, and if a jury is to made up of common citizens, then pretty much anyone can do the job. Finally, juries should be required to determine only the guilt or innocence of a defendant. The punishments for most crimes should be posted with the laws themselves, and again when the charges are brought forth. This would allow for jurors to focus more on the evidence at hand without having to worry about how to sentence a person they may find guilty.

With recent leaps in forensic technology, there are many more tools available today for determining probable guilt or innocence of a defendant. Based on sound scientific principles, prosecutors are now able to identify DNA evidence at many of the most violent crime scenes. They have the ability to reconstruct crimes to determine what took place. The prevalence of surveillance cameras catch many criminals in the act of committing a crime. Financial trails can be traced, fingerprints can be identified, and weapons can be tested and matched to violent acts. All of these techniques, when used properly, can help to confirm a defendant’s innocence or guilt. Our reorganization of the investigative arm of criminal justice would help to ensure that these tools would be used in a consistent manner and that their findings would be accurate. If prosecutors can provide several examples of forensic evidence that can be verified and irrefutably bind a defendant to a crime, then this evidence should be accepted as factual and not be rebutted as voodoo science. This acceptance would end the need for “expert witnesses” who appear at a high cost to both the defendant and the public, but who serve to confuse juries by challenging accepted science.

If forensic evidence should be accepted as fact, as described above, then eye-witness testimony, unrecorded conversations, individual perceptions, and investigative suppositions should be introduced not as fact, but as helpful, though not necessarily accurate information that helps to build motive and means. Such circumstantial evidence is the common sense that explains the existence of the forensic evidence. It is with this evidence that defense arguments can and should be directed. It is in this area of testimony that a defense lawyer can foment the most uncertainty in the minds of jurors. Reasonable alternative explanations should be given whatever value they deserve when compared to the life experiences of the jurors and any relevant information about the defendant’s normal activities.

The trial system could be further streamlined by reducing the amount of backroom sparring that occurs and often prolongs a trial. While often done by the defense, prosecutors are known to engage in these tactics as well. Much of these arguments concern the admissibility of evidence. By adopting the rules of factual evidence and subjective evidence outlined above, such discussions could be greatly reduced. Further, adoption of these rules could also lead to a decrease in appealable issues after conviction, again reducing the workload in our courts and reducing the costs associated with criminal trials.

Finally, judges serving on criminal courts should be the ones who introduce the charges to the jury, explaining in advance the penalty for the crime, as well as advising the jury on the different kinds of evidence they will be hearing. During the trial, a judge should act as both referee and team captain, making sure each side adheres to the rules of evidence while moving things along at a manageable pace. Once a verdict has been reached, a judge should then pronounce sentence immediately and the defendant should begin their rehabilitation or other punishment.

From this point on, appeals should be limited and based upon new factual evidence or the discovery of wrongdoing on the part of the prosecution. (Prosecutors and police investigators, as well as witnesses in a trial should face serious sanctions if it is later to be found that they knowingly fabricated evidence to convict an innocent person.) Semantic irregularities or procedural errors should not negate hard, solid evidence of guilt or free guilty criminals.

These initial changes to our criminal court system could improve the fairness and consistency of trials. The streamlined evidence process, intended to bring forth the facts and separate the subjective evidence would mean quicker trials and lower overall costs on all sides, something only the lawyers will be saddened by. And the use of pre-arranged sentencing guidelines and limited appeals would increase the likelihood that criminals would be made to answer for their digressions.

I have offered two pieces of the reformed criminal justice system: the restructuring of jurisdiction and establishment of a three-tiered enforcement and investigative hierarchy, and a streamlined criminal court program. Both elements eliminate waste and offer society more security by focusing on prosecuting criminal behavior. Next up…reforming our system of punishment.

Criminal Justice Reformed

In my last essay, I talked about the restructuring of our Criminal Justice system by changing the jurisdiction of criminal acts from the current system that is based primarily upon location to one based primarily upon the criminal act itself. I briefly outlined a three-tiered division of jurisdiction that assigns the most serious crimes to a Federal agency, less serious crimes to the state agencies, and misdemeanor offenses to the local enforcement agencies. I propose that in making such a change, our criminal justice system could begin to do a better job in meeting its purpose of keeping society safer. Further, by consolidating resources, tax dollars would be more wisely used by eliminating the duplication of equipment and time. But what steps would we need to take to make these changes a reality?

Currently, the federal government has several enforcement and investigative agencies operating in the country. They range from the U.S. Marshal’s to the FBI to the Secret Service to the BATF. The list could go on, I’m sure, but I think you see what I mean. Clearly, the federal government has, and has had, the constitutional mandate to provide domestic security for the citizens of the nation. In fact, the Constitution provides, in several of its Articles, that Congress retain the ability to establish courts inferior to the Supreme Court (Article I, Section 8.9 & Article III, Section 1) and to create law and punishment for several specific crimes, including counterfeiting, piracy, and treason. (Article I, Section 8) The Constitution also provides that Congress shall guarantee every state in the Union, upon the application of the legislature, protection against domestic violence. (Article IV, Section 4) These first two provisions that I mention establish the foundation by which the federal government has the right and the duty to legislate and prosecute criminal acts. The last provision is the more important one though. It is this provision that could provide the states the opportunity to enact the changes I have proposed. Therefore, by virtue of the Constitution, if the various state legislatures were to vote to cede the power of enforcement and prosecution of the worst crimes to the federal government, the Constitution requires that the federal government assume those tasks.

Ceding this jurisdiction to a federal agency would result in a national criminal code. This code would establish uniformity across the various states with regards to the crimes under the federal jurisdiction. Prohibited behaviors would be unlawful in all fifty states, to the same degrees, and with the same punishments. Investigative techniques for these crimes would be consistent nation wide with access to the finest crime solving technology available. Prosecution for these crimes would be fairly applied and not dependent upon social status or education. This would require a more consistently trained and highly skilled group of workers, but would also result in more uniformity in the way these crimes were investigated and prosecuted. This uniformity would provide greater over-all security to all citizens by removing the barriers and incentives that currently allow serious criminals to avoid detection and prosecution simply by changing their location. The federal agency would also be responsible for conducting trials and for administering the punishment to those offenders who committed national crimes.

Once the states have transferred jurisdiction of the worst crimes to the Federal Criminal Justice Agency, the rest becomes a matter of reorganization. At the federal level, we would need to eliminate the current cadre of agencies and create a single entity responsible for enforcing, investigating, and prosecuting said crimes. The consolidation of forensic laboratories and the sharing of information would streamline the costs associated with enforcing and prosecuting the law. This would also reduce the margin of error in the collection and evaluation of evidence by applying a common standard of practice. Such activities would also have the added benefit of providing a consistent method by which crimes were investigated and tried and help reduce the instances of unjust prosecution or the allegations of unjust prosecutions. Consistent standards would thereby help assure that guilty offenders would be less likely to be released by a jury or judge based on technical problems, thus ensuring that they serve their sentence for their crime.

State agencies, once unburdened with the costs and manpower requirements of investigating major crimes, would be better able to prevent and prosecute those crimes of a lesser nature. Major crimes are usually more costly to investigate and prosecute, and due to the nature of the crimes themselves, those convicted often remain incarcerated for a longer period of time. These costs are growing more every year, making it difficult for states to find the resources to combat the more common, less serious crimes. Since it is often these “mid-level” crimes that are most rampant in society, allowing a state criminal justice agency to focus only on this level of crime would mean that better enforcement could be available. With greater financial resources available for law enforcement, prosecution, rehabilitation or incarceration, states would be better able to punish offenders as they should be punished, rather than giving a slap on the wrists. This would end the revolving door mentality of our correction system because the resources would be available to retrain or retain those offenders. In addition to these tasks, the state agencies would contribute to the federal agency’s information database for certain crimes as well as assist federal agents in detaining or locating suspects.

Our local governments would benefit the most from this restructuring, at least financially. The burden for enforcement, prosecution, and incarceration of criminals would be largely taken out of their domain. Local law enforcement would consist mainly of ensuring that local ordinances were being observed, but would also assist both state and federal agents as needed in detaining or locating suspects. The need for a large local force to protect the citizenry from heinous crime would disappear and the cities and counties could reallocate their budgets accordingly, allowing for more local tax dollars to be used for the community.

Getting back to the Constitution for a minute, Article 6 of the Bill of Rights provides that criminal prosecutions be afforded a speedy and public trial in the district where the crime was committed. This provision was included as a protection to the accused individual to prevent their being convicted by people whose social norms were vastly different or by judges and prosecutors hell bent of some kind of back room retaliation. It may seem that by changing the current system from one of jurisdiction by location to one of jurisdiction by act would run contrary to this concept. Where would federal criminals be prosecuted? What about state offenders? Would there be some centralized national or state crime courts? Applying some old-fashioned Common Sense easily solves this problem.

In order to satisfy the requirements of the Constitution and still remain fiscally prudent while at the same time restructuring our criminal justice system, each community would be home to a combined Criminal Justice Center. This building would house all three agencies, as well as their investigative laboratories and information databases. By combining these agencies into a central location, the use of tax dollars to maintain multiple facilities would be reduced, as would the associated support staff. These savings could be used to increase the number of investigators or upgrade the forensic technologies or better rehabilitate those who can be rehabilitated. The community becomes better protected in a fiscally responsible way and the offender is still provided their constitutional rights of being tried in the district where the offense occurred.

My case for reforming the criminal justice system is based on the notion that some crimes are equally anti-social regardless of location and should thus be categorized as national offenses in order to ensure equal protection for all citizens. It is also based on the idea that our current criminal system is too expensive because of the multitude of similar agencies doing similar jobs while maintaining their independence from each other. This restructuring is only the first step in creating a system that truly works to protect all citizens equally. My next essay will discuss reforms for the prosecution and punishment phase of our criminal system. We can change the way we fight crime, but we also have to change the way we punish or rehabilitate the offender.