Tuesday, June 24, 2008

Word Bans in Criminal Court

At some point today, FindLaw will post my column about word bans in criminal court. The gist of the backstory is that courts around the country have increasingly imposed restrictions on the words that witnesses in criminal court may use, in an effort to prevent wrongful convictions. Such words include "rape," "victim," "drunk," and "homicide." I argue in my column that limits like these, though deriving from good intentions, are flawed, both because they distort and confuse the content of what witnesses are trying to tell a jury and because they artificially distinguish between so-called neutral facts and prejudicial opinions, as the now-discarded federal common law "opinion rule" did prior to passage of the Federal Rules of Evidence. In the case of some crimes, moreover, word bans affirmatively harm victim-witnesses who are asked to speak as though it is they (rather than the members of a jury) who must presume the defendant's innocence.

In this post, I want to raise the question of evidence law more generally. One goal of the rules is, of course, to prevent a trial from going on interminably, and it is difficult to argue with that efficiency goal, given the truth of the saying that "justice delayed is justice denied." Generally, however, rules of evidence provide for the exclusion of relevant and useful evidence that would not waste anyone's time, on the grounds that the jury would be more likely to become inflamed and irrationally prejudiced against one side or another than it would to become enlightened by the particular evidence. In some respects, word bans are extreme examples of what the rules of evidence do more broadly: limit the jury's access to useful and relevant information out of fear of the jury's credulity and irrationality.

Human beings are, of course, capable of extreme irrationality, as we see demonstrated daily in the news and all around us. It is therefore not controversial to suggest that jurors -- mere mortals themselves -- are vulnerable to flights of illogic. It is, however, in some sense at odds with the faith that we have in the jury (enough faith to consider it a bulwark against tyranny) to design intricate and often exceedingly complex rules regulating what jurors are permitted to hear out of a fear that they "can't handle the truth." This is a theme I take up with my Evidence students each year, because "distrust of juries" is the main reason we even have a law of evidence and yet we -- unlike many other countries -- believe that presenting competing narratives of live witnesses to a group of lay persons is the fairest and best way to arrive at the truth.

Such ambivalence -- which places the jury on a pedestal even as it locks the jury inside a cognitive cage of sorts -- is mirrored in our presently unequalled incarceration rate. Our Constitution and precedents provide an impressive array of procedural protections to a criminal defendant that countenances the likelihood of guilty people regularly going free to protect innocent defendants from the possibility of a wrongful conviction. Yet we also lock up more people for more time than any other country in the world, and as we are increasingly finding out, a disturbing number of those people should not be spending even a day behind bars, because they are actually innocent. To reduce the odds of this phenomenon, we might wish to consider something more radical than word bans or even protective rules of evidence, both of which are ultimately procedural in nature. We might want to consider cutting back drastically on the substantive reach of the criminal law. With fewer bases for incarcerating (not to mention searching and arresting) people and fewer criminal defendants, we might have an easier time sorting out the guilty from the innocent -- which is, after all, the most basic task of any criminal justice system that aspires to include the word "justice" in any but an ironic sense.

Posted by Sherry Colb


  1. Two questions:

    1. Do any of these word bans originate in statutes passed by legislatures?

    2. At the federal level, if Congress decided to pass such a rule into law, would that violate separation of powers under the constitution?

  2. Sherry's post is quite compelling and raises important questions about our policy choices. It is difficult to look at the way we lock people up without imagining that it is some kind of cruel joke. Beyond the racism, classism, and procedural craziness, it's just an enormous economic waste. There's a very good reason to refer to it as the prison/industrial complex.

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