At The Atlantic, "America's English-Style Legal System Evolved to Conceal Truth, Not Reveal It," has a skeptical take on even the most sacred elements of the Anglo-American system of justice. Evan Whitten, an Australian journalist, thinks that the European civil justice system has some innate advantages when it comes to justice, providing you define justice as the percentage of defendants you convict:
Over the last 200 years, judges have invented myriad truth-defeating devices, including a few that conceal important evidence. Here are a few:
- The "right" of silence. The rule against self-incrimination is based on a lie by the first legal academic, a charlatan named William Blackstone. It's estimated to get off about a quarter of guilty defendants.
- Concealing context. Serial sex criminals are largely protected by a rule that conceals evidence of a pattern of criminal behavior.
- Cross-examination. Lawyers are allowed to use sophistry to make honest witnesses look unreliable.
- Juries. Juries let off about 25 percent of guilty defendants, according to some estimates, because jurors are confused by concepts such as "beyond a reasonable doubt."
In France, evidence is not concealed and lawyers are not allowed to use artful lies to pollute the truth. The innocent are rarely charged; 95 percent of guilty defendants are convicted. Public confidence in the system is high.
In the Anglo-American common law system, lawyers are encouraged to obfuscate the truth and use sophistry to besmirch the integrity of honest witnesses. In the U.S., it is estimated that upwards of four percent of the prison population is innocent (a staggering 80,000 people, more than double the prison population of Canada) -- with some on death row -- but more than half of guilty defendants get off.
Anybody out there want to defend our system? How about the first commenter:
Among the many bone-headed things I've read about the legal profession, this one takes the prize.
You have been watching too much TV: lawyers do not trick witnesses, witnesses make themselves look like idiots when they can't answer straightforward questions. Is the opposing attorney out to get you? Yes, of course. But you don't leave law school with a bag of word tricks ("When was the last time you beat your wife?"). Law schools mostly serve to funnel smart people into corporate jobs where they will never see the inside of a courtroom and never ask any questions of any witnesses.
Holding up the French legal system as one we should emulate is like trying to say that lion should really be a bit more like a killer whale. The two systems are incredibly different: they come from very different legal traditions; they fit into incredibly different political structures. Have you read a French opinion? They are essentially one-sentence syllogisms that sweep all the legal reasoning under the rug (to be sure, scholars play a different role there than here, serving to explain legal rulings). My point is just this: extracting elements of the French system absent context as if we could just patch them to our system and everything would be hunky-dory doesn't work.
Also, do you have a freaking fact-checker?
Other commenters were more succinct: "This was a profoundly stupid article." And, "This is really a ghastly article that misses nearly every point apparent to someone with even a cursory knowledge of the US legal system."
Art: Vanity Fair, Frederick Albert Bosanquet, K.C. (The Common Serjeant.) Spy. November 21, 1901.