Knowledge And Decisions

The interpretation and administration of rules of evidence also controls or restricts the flow of knowledge necessary to determine innocence or guilt. American law is unique in the extent to which it excludes evidence.¹⁹⁴ Evidence can be excluded either because it is considered qualitatively less certain than other evidence, or because of the procedures by which it was obtained. Information that is incrementally less certain is often treated as categorically nonexistent under “hearsay” exclusionary rules in Anglo-Saxon law, though the same quality of evidence could be heard in courts in other Western countries or in Japan.¹⁹⁵ “Hearsay” does not mean simply gossip, but includes many official documents whose authenticity and veracity are unchallenged.¹⁹⁶ In addition to directly reducing the flow of knowledge into the criminal justice system, Anglo-Saxon “hearsay” rules have been held “responsible for most of the procedural quibbling that takes up so much time in American and British courts.”¹⁹⁷ By adding to court congestion and trial delay, it indirectly reduces the flow of knowledge in other cases as well.

One of the most important ways in which knowledge is screened out of the criminal justice system is either by excluding it from trial or reversing the conviction in the appellate courts because it was not excluded. Evidence acquired without following minutely prescribed procedures can also be excluded, without regard to how accurate, verifiable, or relevant it may be. The great fear behind this initially was that police would beat confessions out of innocent people, reducing the reliability of the confession as well as being a crime in itself. But even after coerced confessions were ruled inadmissible, the Supreme Court went further to exclude independent evidence of guilt, if that evidence was found as a result of information obtained from a coerced confession. The meaning of “coercion” was also expanded from physical beatings to psychological pressures to “unnecessary” detention to police failure to describe all the suspect’s legal options.¹⁹⁸ There may be enough independent evidence to convict a murderer, if his confession leads police to the scene of the crime, where they find the corpse, and the murder weapon bearing the defendant’s fingerprints all over it — but all of this evidence must be discarded by the criminal justice system if the original confession was procedurally incorrect.¹⁹⁹ Even the British do not go nearly that far.

In short, the social costs of effective knowledge of guilt or innocence is multiplied by the restrictions placed on gathering the knowledge in the first place, and by the many ways of having the effectiveness of the knowledge cancelled by appellate courts. It is the same net result if costs of knowledge are directly tripled or if only one-third the knowledge gathered survives the screening processes involved in restrictive rules of evidence, procedural technicalities, and the exhaustion of witnesses through delays and retrials.

In criminal law, as in other social processes, there are inherent constraints of circumstances and human beings, and these constraints entail trade-offs. The repugnance and pain which a conscientious person feels at the thought of imprisoning or executing an innocent man, or letting a guilty sadistic murderer go scot-free back into society on a technicality, in no way removes the constraints or relieves the essentiality of trade-offs. The ideal of “a government of laws and not of men” implies an established process rather than ad hoc judgments of what is right in each case. Inherent in this are deviations between the particular consequences of a systemic process and the individual results most in accord with the principles that the process was meant to embody. The more effective the legal processes, the smaller are these deviations, but in any process conceived and carried out by human beings there will be deviations — and in some cases, extreme deviations. Legal systems try to reduce these extreme deviations by allowing appellate courts to review cases. But to some extent this recreates the original dilemmas of trial court systems at the appellate court level.