Alex Kozinski is a judge on the U.S. Ninth Circuit. He has recently authored an article for the Georgetown Law Journal, which he simply titles “Criminal Law 2.0.” It is a comprehensive review and critique of the flaws and shortcomings of the current US justice system. My opinion is that this article is a masterpiece, a classic. Here is an experienced, seasoned, knowledgable justice system “insider” who has “figured it out.” And not only has he figured it out, but he also has some very good ideas about fixing the problems, or at least some of them. You can see the full text here: Kozinski, Criminal Law 2. I strongly encourage reading the full article.
Here is a topical summary: (Please see the full article for Judge Kozinski’s discussion of each point.)
A. The myths that cause us to think that the justice system is fair and just, when it’s really not.
- Eyewitnesses are highly reliable.
- Fingerprint evidence is foolproof.
- Other types of forensic evidence are scientifically proven and therefore infallible.
- DNA evidence is infallible.
- Human memories are reliable.
- Confessions are infallible because innocent people never confess.
- Juries follow instructions.
- Prosecutors play fair.
- The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
- Police are objective in their investigations.
- Guilty pleas are conclusive proof of guilt.
- Long sentences deter crime.
B. Recommendations for reform – Juries
- Give jurors a written copy of the jury instructions.
- Allow jurors to take notes during trial and provide them with a full trial transcript.
- Allow jurors to discuss the case while the trial is ongoing.
- Allow jurors to ask questions during the trial.
- Tell jurors up-front what’s at stake in the case.
- Give jurors a say in sentencing.
C. Recommendations for reform – Prosecutors
- Require open file discovery.
- Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations.
- Adopt standardized, rigorous procedures for eyewitness identification.
- Video record all suspect interrogations.
- Impose strict limits on the use of jailhouse informants.
- Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process.
- Keep adding conviction integrity units.
- Establish independent Prosecutorial Integrity Units.
D. Recommendations for reform – Judges
- Enter Brady compliance orders in every criminal case.
- Engage in a Brady colloquy.
- Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.
- Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
- When prosecutors misbehave, don’t keep it a secret.
E. Recommendations for reform – General
- Abandon judicial elections.
- Abrogate absolute prosecutorial immunity.
- Repeal AEDPA § 2254(d). (Antiterrorism and Effective Death Penalty Act)
- Treat prosecutorial misconduct as a civil rights violation.
- Give criminal defendants the choice of a jury or bench trial.
- Conduct in depth studies of exonerations.
- Repeal three felonies a day for three years. (Refers to the fact that there are too many vague, overlapping laws on the books.)
I would add two more to the General category:
• Have all trial counsel, prosecution and defense, sworn in at the beginning of every trial.
• Abandon political election of prosecutors.