Vol. 9 No. 7 (July 1999) pp. 324-326.
THE TILTED PLAYING FIELD: IS CRIMINAL JUSTICE UNFAIR? By H. Richard Uviller. New Haven: Yale University Press, 1999.
Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University.
H. Richard Uviller, Arthur Levitt Professor of Law at Columbia University, puts his individual spin on the issue of fairness in the justice system. He focuses particularly on the criminal trial, examining several elements of the process by which guilt is determined, and concludes with a body of suggestions for improving the quality of adjudication.
Americans are fascinated by watching criminal trials, not only as they are fictionally depicted from PERRY MASON to LAW AND ORDER, but also as they are reported on the news and broadcast on COURT TV. Uviller acknowledges that despite the tedium of most live trials, there is something to the notion that the courtroom offers an inherently dramatic confrontation between good and evil. He finds that in such contests it is not surprising that sporting metaphors have become cliches for describing the adversarial system. In particular, the image of the level playing field has taken hold not only as a description of fairness in the process of administering justice, but also as a criterion for measuring that fairness, and even as an ideal for how the system should be set up. Uviller considers the popular conception that the two sides of a criminal case, prosecution and defense, should be evenly matched if the adversarial system is to work equitably. Unlike many observers, he does not condemn the system because the field is tilted. Instead, he discards the symbol of the level playing field and promises a different view of fairness that includes the more subtle notion of balancing advantage.
The first chapter is devoted to an exposition of ideas of fairness. The author makes a familiar distinction between orderly process and most felicitous outcome. In the first meaning, the rules of competition are most important and the sports metaphor is appropriate. He prefers the Type B fairness, positive outcome as opposed to due process. Uviller argues that the only reasonable approach in a criminal trial is not to seek identical prerogatives for prosecution and defense, but "balanced empowerment," or "functional fairness" where each side is entitled to do what best serves to bring the case to a just conclusion. A just conclusion involves separating the guilty from the innocent as accurately as possible, "consistent with some few overarching public values" to guide the process.
Uviller maintains that the Supreme Court has been only marginally useful in the search to determine which procedures meet his test of fairness. Fifth and Fourteenth Amendment due process guarantees are equated with "fundamental fairness," but aside from Justice Frankfurter’s formulation that conduct that shocks the conscience violates due process, the author finds few "baseline principles" from the Court.
At some point in these early stages of the discussion, the reader may expect the author to introduce the issue of race as it figures into the calculus of justice. He introduces race—and concludes his consideration of the topic—in two or three pages. Uviller’s position is that others, notably Randall Kennedy in RACE, CRIME, AND THE LAW, have addressed questions of racism, and that he chooses to put the matter "on hold." Uviller states that racism is a "grievously deforming factor" of the justice system, the prevalence of which is "largely random and unknowable." Perhaps the reader must allow him to evade the subject of race, based on the rule that it’s unacceptable to criticize the book he didn’t write. On the other hand, can one profess to provide a thorough examination of a subject while ignoring the elephant in the middle of the room?
Once Uviller has laid out the parameters of his study, the body of the book is taken up with exploring the roles of prosecution and defense and considering some of the legal tools provided to each side for the accomplishment of its respective objective.
In Chapter Two, he looks at whether the power to initiate a case gives the prosecutor an unfair advantage. Do prosecutors abuse their discretion by choosing to pursue certain cases over others? Uviller thinks not, but just in case, he suggests that review teams in US Attorneys’ offices serve as a check on unwarranted charges. For local prosecutors reviews of discretion are probably done through such systemic checks as the grand jury, judicial oversight, a successful defense, or a jury’s refusal to convict. While he finds there is no substitute for personal integrity, the embarrassment of losing at trial might rein in the occasional overzealous prosecutor. He would also propose that offices draw up a set of guidelines for sound prosecutions. In this section, as in other parts of the book, Uviller does not seem to acknowledge the possibility of systemic prejudice against certain types of defendants. If the prosecutor and the community share a consensus that marks some people as more likely to be convicted, how will the ordinary processes of that system sort out injustice?
Uviller next addresses access to information and examines whether the two sides have tools for comparable information gathering, and what information should be shared prior to trial. After a lengthy discussion of discovery, he concludes that despite the state’s greater resources for investigation, the defendant enjoys an advantage by having the right to more knowledge about the case against him.
Chapter Four discusses the "white hat factor." While all persons accused are supposed to be considered innocent until proven guilty, do real life prosecutors enjoy the presumption that they are the good guys? Uviller argues that this presumption of credibility is fair and as it should be and that the prosecution is usually right. And although he considers the prohibition on prosecutors vouching for their witnesses, he admits that bringing the whole machinery of the state to bear suggests which side is telling the truth. Likewise he contends that placing the burden of proof on the side of defendants claiming insanity, self-defense, or duress has not reduced the fundamental presumption of innocence too much. According to the author, treating such claims as affirmative defenses is fairer than expecting the prosecution to prove their opposites.
Uviller states repeatedly that he is not considering whether some defendants are treated fairly compared to other defendants, but only whether the two sides enjoy appropriate advantages. He does, however, include a chapter on economic disparity. He dismisses the argument that defendants often suffer from inadequate services of counsel by stating that although the brightest law school graduates often start out in the DA’s office, they usually end up in private practice, often as defense attorneys. Some may find this a less than persuasive argument. Here as in many other places, the author either ignores or belittles empirical evidence to the contrary. But if he is sanguine about legal representation, he reserves some of his greatest criticism for the issue of bail. Bail decisions, he claims, are "casual, impulsive, largely idiosyncratic, totally arbitrary, wildly variable, and without any possibility of objective verification." He would have judges decide, after serious review, whether each defendant should be in or out while awaiting trial. If the accused is eligible to return to the community, the bail set should be reasonable. If he is dangerous or a true flight risk, no bail. This proposal, while not eliminating economic disparities in pretrial detention, would surely reduce them.
In a discussion of the exclusionary rule, Uviller proposes modifications. He believes the rule no longer addresses the issue of police misconduct. That purpose would be better served by requiring search warrants in more cases, and allowing judges to determine the admissibility of evidence when a warrant was not issued. He would also modify the law with respect to self-incrimination. After throwing out Miranda,
Uviller would allow a short period of police questioning without any warnings or attorneys present, followed by a more lengthy interrogation by a judge in open court. The right to remain silent would be no more. Silence could serve as a basis for the inference of guilt.
After these chapters, it seems clear that the author is ready to include several new prosecutorial advantages in his definition of fairness.
The last two chapters are devoted to a restatement of Uviller’s recommendations and his conclusion that the system as it stands is "tolerably fair." I think these chapters could stand alone as a stimulating source for discussion in a class devoted to defining justice, perhaps a senior seminar. The author’s conversational style, the breadth of his knowledge, and his wit make the book enjoyable, even when one is arguing with his positions.
REFERENCES
Kennedy, Randall. 1997. RACE, CRIME, AND THE LAW. New York: Vintage Books.