In a recent decision the New Jersey State Supreme Court established rules that make it much more difficult for criminal trial jurors to hear eyewitness evidence. Their theory is that eyewitness testimony is frequently if not usually seriously flawed. The New York Times predictably wrote an enthusiastic editorial scolding the Roberts court to listen carefully and presumably follow suit.
What is disconcerting for those of us who are practitioners, those of us who stand before juries and submit witnesses and evidence for juries to evaluate, is that the defense bar and the media are telling jurors -- you -- that you can't trust eyewitnesses. That you, the juror, cannot reasonably evaluate whether a witness really saw what the witnesses says she saw. This despite a jury instruction - in Oregon and virtually every jurisdiction -- that jurors should evaluate the bias, interest and motive of each witness, what the witness might have to gain or lose, and whether the witness remembered correctly what she saw and then in fact accurately communicated it.
The "experts" -- usually law professors and defense attorneys -- are also telling jurors to be very suspicious of confessions -- even if they are video-taped. Expert witnesses for the defense, like the recently-released West Memphis Three, tell juries that police regularly coerce false confessions from innocent defendants, so even if a jury hears a defendant say "I did it!", the jury should view that confession with distrust. Again, jury instructions already tell jurors to view statements allegedly made by the defendant with caution and warn jurors that the person reporting the statement made have deliberately or inadvertently changed the meaning.
The media and defense attorneys are using a questionable "study" -- more of a suggested set of policies than an actual study -- that arose out of a National Academy of Sciences report. Jurors -- you -- are being told to be particularly suspicious of "flawed forensics." The same study cites a handful -- as in less than six cases -- of actual forensic misconduct, where people held themselves out as forensic scientists when they were not.
In a recent column for CNN, commentator Jeffrey Toobin explained why the prosecutors of Dominque Stauss-Kahn were not merely bound by what they thought was true, but by what they could prove. He went on to point out accurately that in our system we do not look towards criminal defense attorneys to tell us what really happened. Their sole job is to challenge prosecutors, whether the DA has the wrong person or, far more likely, when the accused did exactly what he is accused of doing.
But we seem to be moving towards a new urban mythology that says that the only party in the justice system that we can count on to look after the truth, to safeguard the rights of all -- not just the accused -- is the criminal defense attorney. Who would you call if a member of your family was savagely attacked? Some might say a good lawyer. But the natural instinct, with very good reason, is to call the police and hope you get a good prosecutor on the case.
After Casey Anthony was acquitted there was a wave of commentary that seemed to imply that the only way we can ever be sure the laws are really working is for a defendant to be found "not guilty," even more so if it appears from the outside that the defendant may in fact have beat a legitimate charge.
The Constitution works when it accords due process to the defendant and when it protects the community. That is why so many states have written victims' rights into their state constitutions, and why the only people speaking for the dead or maimed are likely to be the people sitting on the prosecutor's side of the table.