Trafficking in Formalism

The Talk of the Town section of this week's New Yorker magazine carries a story about a lawyer who specializes in fighting traffic tickets for drivers of limos and taxis. The story relates, among other things, a case in which a police officer testified that he pulled over the defendant after he (the officer) "observed the vehicle go through a marked stop sign . . . ." The defense attorney moved to dismiss the case against her client on the ground that the officer had not given a sufficiently detailed description of the stop sign. The judge granted the motion. "A stop sign's an eight-sided red sign with the word 'STOP' on it, has to face oncoming traffic, has to be posted near the corner," the savvy defense attorney explained to the New Yorker writer.

Anybody with an ounce of common sense will recognize this case as either a travesty or a farce. It is reminiscent of medieval trial by ordeal or at least of what Roscoe Pound termed with appropriate derision, "the sporting theory of justice." Let us indulge the remarkable assumption that there was some doubt about what the officer meant by a stop sign. Perhaps it was not only his first day on the job but his first day in the country, and where he came from, the word "stop sign" means what we call "fire hydrant." Or perhaps just before writing the ticket he had suffered a blow to the head, thus causing him to mistake a man wearing a large red hat for a stop sign. If so, a rational legal system would permit the defense to challenge the officer's testimony on cross-examination or to offer independent evidence about the limits of his perception, memory or veracity. But it is simply ludicrous to dismiss a case because the officer used the phrase "stop sign" to describe a stop sign.

Nor does it make matters better that in this instance hyper-formalism was being used to serve the interests of a criminal defendant. For one thing, running a stop sign is a "violation," an offense deemed less serious than a misdemeanor. The maximum penalty is a fine and therefore, no one's liberty is at stake. But even if the case were much more serious, that would hardly be a reason to dismiss it on the ground that the chief prosecution witness failed to utter the requisite magic words. Suppose the defendant had committed involuntary vehicular manslaughter as a result of running a stop sign. Would that somehow make it MORE justifiable to dismiss the prosecution because of the officer's failure to mention the stop sign's octagonal shape? On the contrary, it would convert farce into tragedy.

The New Yorker article suggests that the court's hyper-formalism in the stop sign case is actually typical, and my own admittedly limited experience suggests that this is true in other places as well. When I was a third-year law student in 1990, I externed for a semester in the Somerville, MA district attorney's office, prosecuting relatively low-level offenses, including drunk driving cases. I distinctly remember my supervisor explaining to me the importance of offering evidence of every element of the charged offense, lest the judge dismiss the case for failure of proof. She gave the following example: Drunk driving means operating a motor vehicle under the influence of alcohol on a public way. Suppose your chief witness testifies that the defendant was weaving in and out of traffic on Middlesex Avenue and that a breathalyzer test showed he had a blood-alcohol level of twice the legal limit. The judge will dismiss the case if your witness does not also testify that Middlesex Avenue is a public way. She made clear that this was an actual example. And the courthouse was located just off Middlesex Avenue!

Are there any broad lessons to be drawn from the idiocy of the rules of proof employed in at least some local courts? Perhaps just one. Formalism in law was thought to have been discredited by the middle of the twentieth century but it has lately made a comeback among some judges and academics. They argue that adherence to rules that do not appear to do justice in particular cases will often lead to better results over the long run, because of various distortions that occur when judges are free to make all-things-considered judgments. That's true as far as it goes, but the traffic examples may show a distinctive pathology of formalism: judges socialized in the virtues of formalism will adhere to rules that have no plausible chance of serving justice in the aggregate. Formalism for ultimately pragmatic ends may inevitably devolve into formalism for formalism's sake.