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The current conflict between Israel and the Palestinians

We decided last week to discuss the current war between Israel and Hamas on Monday. I’m sure there will be plenty to talk about, but I thought it might be useful to provide links to various views about the origins of the current conflict, US policy toward Israel and the Palestinians, some information about the recent history of relations between Israel and the Palestinians, and the relevant international law that, in theory if not often in practice, governs the conduct of war, including the current one.

  1. What the laws of war say about forced displacement and “human shields”, NYTimes, 19 October (https://www.nytimes.com/2023/10/19/world/europe/interpreter-laws-human-shields-forced-displacement.html?smid=em-share)
  2. Overview of the history of the establishment of the State of Israel, the conflicts surrounding its establishment, and attempts to end those conflicts. Beinin and Hajjar, “Palestine, Israel, and the Arab-Israeli Conflict: A Primer.” (Washington, DC: Middle East Research and Information Project, 2014) (https://merip.org/palestine-israel-primer/). This is a fairly long piece, but might be useful background. Much of the discussion I’ve heard recently, in the media and elsewhere, about the current war is based on nearly complete (sometimes willful) ignorance of this history.
  3. Postwar planning for Gaza. Thomas Warrick, “I Saw What Happened to America’s Postwar Plans for Iraq. Here’s How Israel Should Plan for Gaza”, NYTimes, 16 October (https://www.nytimes.com/2023/10/16/opinion/israel-gaza-iraq-iran.html?action=click&module=RelatedLinks&pgtype=Article)
  4. An 18 October panel discussion on al-Jazeera about why the US supports Israel, posted the day after the rocket attack that destroyed al-Ahli Arab Hospital in Gaza City. I think it’s fair to say that the panelists’ opinions are not often heard on mainstream media in the US. (https://www.aljazeera.com/program/inside-story/2023/10/18/why-has-the-us-consistently-backed-israel)
  5. An essay from the Council on Foreign Relations on US policy on the Israel-Palestinian conflict, posted on 12 July and therefore now possibly out-of-date. I think this represents the views of the US foreign policy establishment. (https://www.cfr.org/backgrounder/what-us-policy-israeli-palestinian-conflict?utm_medium=social_share&utm_source=emailfwd)
  6. Another take on the background of the current war, from Prager University Foundation (https://www.tiktok.com/@stormbreakerak7/video/7289020777712602399?_r=1&_t=8ghOwRBV70w) which, according to its website, “offers a free alternative to the dominant left-wing ideology in culture, media, and education.” However, its presenters include some of the most notorious far right-wing commentators in the US (see  https://www.prageru.com/presenters). The commentator on this particular video is David Brog, Executive Director of the Maccabee Task Force. According to its website:

“The Maccabee Task Force was created in 2015 to combat the disturbing spread of Antisemitism on college campuses. We believe the BDS movement is at the forefront of this troubling trend. We maintain that BDS is an Antisemitic movement that crosses the line from legitimate criticism of Israel into the dangerous demonization of Israel and its supporters. We are determined to help students combat this hate by bringing them the strategies and resources they need to tell the truth about Israel. These attacks on Israel and its supporters won’t be going away any time soon. Neither will we.”

Pine Tree Power

We decided to discuss at our next (16 October) meeting the possibe pros and cons of Pine Tree Power, the proposed consumer-owned electric utility that will be the subject of a referendum question on the Maine ballot in November.

When we chose this topic at the end of yesrerday’s meeting, some of us felt that the public discussion so far about Pine Tree Power has been remarkably fact-free and that we need to do some research ahead of time to try try find some relevant facts.

I suggest some of the relevant questions about this issue include, for example, the following (in no particular order):

How are Versant Power and Central Maine Power currently financed? Would the component of the cost of elecricity to consumers.attributable to financing go up, go down, or stay the same if Pine Tree Power acquires their assets?

Some advertisements opposing Pine Tree Power assert that the take-over would “cost Mainers” something over $13 billion. What’s the basis for that claim? How would the cost of acquiring the assets of Versant/CMP actually be determined? What “cost” does the $13 billion figure represent? Who are the “Mainers” who will bear the acquisition cost, whatever it ends up being?

Would Pine Tree Power be a “consumer-owned utility”? If so, in what sense? If not, why not?

What has been the experience with consumer-owned electric utilities in Maine and elsewhere in the US? Has service and/or reliabilty improved? Have rates gone up or down compared to nearby inverstor-owned utilities with similar (in size and in any other relevant ways) customer bases and the condition of their infrastructure?

Will the economic incentives and advantages (e.g. bargaining power in purchasing electricity or other goods and services) or disadvantages be different for Pine Tree Power as a consumer-owned electric utility than they are for Versant/CMP as investor-owned utilities? If so, how?

How will Pine Tree Power be managed? Who would choose its directors and how? How much control will consumers have over Pine Tree Power policies (e.g., energy souces, choice of operator, system upgrades, etc.)? How much control do consumers now have over similar policies of Versant/CMP? Would more consumer control of such policies be a good thing or a bad thing? Why?

Will the role of the Public Utilites Commission change if Pine Tree Power takes over Versant/CMP? If so, how?

Will the role of the state (i.e., the legislative and executive branches) change with respect to the operation of the electric grid if Pine Tree Power takes over Versant/CMP? If so, how?

Aside from the issues raised above, is there any independent principled reason to prefer an investor-owned or a consumer-owned electric utility? If so, what principle and what option would it support?

Who is backing the advertising campaigns supporting or opposing Pine Tree Power? Which politicians are backing or opposing Pine Tree Power? Why do they say they’re taking that position? What are their likely (publicly) unstated reasons, if any, for taking that position?

if, at the beginning of the discussion, you support or oppose Pine Tree Power, why? If you change your mind at the end of the discussion, why? If not, is there anything that might cause you to change your mind? If so, what?

Here’s a link to the Pine Tree power web site (https://ourpowermaine.org/faq/) that adresses some of these issues from Pine Tree Power’s perspective. I’ll look for something similar from the perspective of Versant/CMP.

Comparative Legal Systems (continued)

The following materials are excerpts from several articles I found last week about the adversarial justice system, its strengths and weaknesses, and the types, strengths, and weaknesses of non-adversarial justice systems. I thought posting extracts would be more useful than trying to summarize this material.

Items 1 and 2 describe several types of justice systems that are alternatives to the adversarial system. Item 3 describes the inquisitorial justice system, as used in France (and that prevails in similar forms in Germany and other Continental European countries that derive their justice systems from Roman civil law and the Napoleonic Code). Item 4 describes the history and development of the adversarial justice system in the US. Item 5 analyzes the flaws of the adversarial justice system as now implemented in the UK and compares it to the inquisitorial system. Items 6 and 7 discuss the weaknesses of the American adversarial justice system with respect to disputes involving complex technical matters and expert witnesses.

  1. Changing Minds.org, Four Types of Justice (undated) (http://changingminds.org/explanations/trust/four_justice.htm)

There are four types of justice that people can seek when they have been wronged.

Distributive justice

Distributive justice, also known as economic justice, is about fairness in what people receive, from goods to attention. Its roots are in social order and it is at the roots of socialism, where equality is a fundamental principle.

If people do not think that they are getting their fair share of something, they will seek first to gain what they believe they deserve. They may well also seek other forms of justice.

Procedural justice

The principle of fairness is also found in the idea of fair play (as opposed to the fair share of distributive justice).

If people believe that a fair process was used in deciding what it to be distributed, then they may well accept an imbalance in what they receive in comparison to others. If they see both procedural and distributive injustice, they will likely seek restorative and/or retributive justice.

Restorative justice

The first thing that the betrayed person may seek from the betrayer is some form of restitution, putting things back as they should be.

The simplest form of restitution is a straightforward apology. Restoration means putting things back as they were, so it may include some act of contrition to demonstrate one is truly sorry. This may include action and even extra payment to the offended party.

Restorative justice is also known as corrective justice.

Retributive justice

Retributive justice works on the principle of punishment, although what constitutes fair and proportional punishment is widely debated. While the intent may be to dissuade the perpetrator or others from future wrong-doing, the re-offending rate of many criminals indicates the limited success of this approach.

Punishment in practice is more about the satisfaction of victims and those who care about them. This strays into the realm of revenge, which can be many times more severe than reparation as the hurt party seeks to make the other person suffer in return. In such cases ‘justice’ is typically defined emotionally rather that with intent for fairness or prevention.

So what?

If you have been wronged, consider carefully what kind of justice you are really seeking.

If you are the wrong-doer and others are seeking justice against you, seek first to ensure distributive justice.

A question may be asked why people are put in prison. If it is to prevent them re-offending, then it is restorative justice. If it is to punish them, then it is retributive justice. Sadly, this have proven a poor method of prevention.

2. Monash University, What is Non-adversarial justice? (undated) (https://guides.lib.monash.edu/areaoflaw/non-adversarial-justice)

Non-adversarial theories and practices [can include] therapeutic jurisprudence, restorative justice, preventive law, creative problem solving, holistic law, appropriate or alternative dispute resolution, collaborative law, problem-oriented courts, diversion programs, indigenous courts, coroners courts and managerial and administrative procedures.

Alternative dispute resolution (ADR) – Dispute resolution processes by which matters are resolved outside the usual court-based litigation model. The aim of ADR is to encourage the settlement of a dispute between parties with the assistance of a neutral person.

ADR includes processes such as:

  • assisted negotiation
  • expert appraisal
  • mediation
  • conciliation
  • evaluation
  • early neutral evaluation
  • mediation-arbitration.  

Restorative justice – a theory of justice that emphasises repairing the harm caused by criminal behavior.

Therapeutic jurisprudence – a branch of jurisprudence that focuses on questions of well-being in relation to those who come into contact with the law and the justice system.

Commercial arbitration – The system for final determination of disputes by a private tribunal constituted for that purpose by the agreement of the disputants. Domestic arbitration is governed by the commercial arbitration legislation of the States and Territories which is relatively uniform across all jurisdictions, except New South Wales.

3. Edward A. Tomlinson, Nonadversarial Justice: the French Experience, 42 Md. L. Rev. 131  (1983)(http://digitalcommons.law.umaryland.edu/mlr/vol42/iss1/9)

[T]he French experience demonstrates that the system’s strengths and weaknesses tend to balance each other out if evaluated solely in terms of the role within the system of an impartial judiciary. The system’s chief strength is the efficient and generally fair trial afforded all defendants, based on a comprehensive dossier which informs the judge in advance of all the evidence in the case. Guilty pleas are not allowed except for minor offenses punishable by a fine; all other criminal prosecutions in France necessarily go to trial. The nonadversarial trial itself is usually an un-complicated affair: The judges (most continental tribunals are collegial) make a straightforward effort to ascertain the truth, and the only trials likely to last longer than a day are those involving either multiple defendants or a crime victim’s claim for substantial civil damages. The system’s principal weakness is that an individual’s rights, when confronted with the state’s investigatory authority, are less substantial in France than in the United States. French prosecutors and police exercise greater pre-trial investigatory and charging authority than do their American counterparts; and that authority is not subject to judicial supervision or other external checks. This weakness contributes to the system’s chief strength, however, because the absence of significant limitations on the pre-trial gathering of evidence by the prosecutor and the police enables them efficiently to compile a comprehensive dossier. The French criminal justice system thus presents a standoff between its principal weakness – domination of the investigatory and charging stages by the police and the prosecutor – and its chief strength – judicial control of the disposition of cases at trial. This article seeks to resolve this standoff by evaluating the French criminal justice system under the criterion of the balance it achieves between individual rights and state authority. The French system does not com-pare favorably with our own when evaluated under that standard.

4. Randolph N. Jonakait, The Rise of the American Adversary System: America before England, 14 Widener L. Rev. 323 (2009) (https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1748;context=fac_articles_chapters)

America did not simply adopt England’s adversary system, but moved to an adversary system independently and in advance of England. It shows that the American adversary system was operating widely in America at the end of the eighteenth century.

English common law prohibited an accused from being represented by counsel in ordinary felony trials. In the eighteenth century, some courts allowed that prohibition to be lifted by permitting defense counsel to cross-examine some witnesses. The standard history concludes that this presence of defense counsel formed the foundation of the adversary system. The English adversary system, however, took a long time to emerge fully. Well into the nineteenth century, few criminal defendants were represented by counsel, and the role of those attorneys who did appear remained restricted. The common law still required the accused to represent himself, and defense counsel could not address the jury. An English accused could not be fully represented by counsel until 1836.

[E]arly Americans rejected the English common law restrictions on defense lawyers and instead widely guaranteed the right to counsel.

[E]ighteenth-century American procedure diverged in another significant way from English practices by instituting prosecution through a public prosecutor.

Key components of the [adversary] system were constitutionalized in the Sixth Amendment.

English criminal procedure started to change in the 1730s, when for reasons unknown, defense counsel, while still prohibited from addressing the jury or arguing about facts, were allowed to undertake some cross-examination. These defense counsel brought a new mentality into the courtroom. Before defense counsel participated, guilt was rarely challenged, and trials were largely de facto sentencing proceedings. Defense counsel, however, increasingly contested the accused’s guilt. Without lawyers at the trials, judges conducted trials with few evidentiary restraints. With defense counsel, evidence rules increasingly came to be defined, and trials saw more hearsay and other evidentiary objections.” These changes transformed the trial system into an adversarial proceeding, and the transformation was wrought because defense counsel were increasingly allowed to cross-examine.

While defense counsel started to appear in their cross-examination role in some trials during the 1730s, it was not until the 1780s that counsel appeared in any significant number, and even then they participated in only a fraction of criminal trials. 14 Furthermore, their role continued to be severely restricted because the English common law still prohibited an accused from having full representation. Counsel could address issues of law and might be allowed to cross-examine, but he could not address the jury and could not present the defense. This continued until 1836, when criminal defendants were allowed the right to counsel in ordinary felony trials for the first time. Legal historian J. M. Beattie summarizes these developments by noting that while defense counsel might have been allowed to participate in felony trials,

[t]hey did so under judicial sufferance, and from the beginning what they might do for their clients was limited by the bench. … The right to full defense by counsel was not granted until the passage of the Prisoner’s Counsel Act of 1836. Until that legislation was enacted, lawyers acting for accused felons were allowed in effect to do what the judges had always done for the defendant: to examine and cross-examine witnesses and to speak to rules of law. Counsel were not allowed, however, to act in those areas in which defendants had always been on their own. In particular, counsel were not allowed to speak to the jury on their client’s behalf or to offer a defense against the facts put in evidence.

[E]rly America not only did not restrict the role of defense attorneys, it guaranteed the right of counsel. It did this not only in the Sixth Amendment to the federal constitution, but also earlier in the state constitutions after Independence — and even before the Revolution, in a number of the colonies.

Another American innovation – public prosecution-also indicates America’s early institution of the adversary system. In England, a public official did not prosecute in ordinary criminal trials. Instead, the victim or his relatives or friends prosecuted the case. In eighteenth-century America, however, public officials began to assume the duty of prosecuting criminal cases, and by Independence public prosecution existed in all parts of the land. … This diminished the judge’s role and made an adversarial counsel on the other side increasingly necessary for fair trials.

5. Professor Leslie Thomas KC, Does The Adversarial System Serve Us Well? (9 March 2023) (https://www.gresham.ac.uk/watch-now/adversarial-law#:~:text=This%20system%20is%20often% 20presented,may%20not%20always%20promote%20justice)

What Are The Flaws Of The Adversarial System?

I want to cut straight to the chase and look at some of the problems there are said to be with the adversarial system. One main criticism of the adversarial system is that it can be overly focused on winning and losing, rather than on finding the truth and promoting justice. In an adversarial system, lawyers are often motivated by a desire to win their cases, rather than to uncover the truth or to achieve justice. This can lead to a situation where lawyers are more concerned with scoring points and attacking the credibility of the opposing side, rather than with presenting a fair and balanced case.

Another problem with the adversarial system is that it can be heavily skewed towards those who have the resources to mount a vigorous defense or prosecution. In an adversarial system, the outcome of a case can often be determined by the quality of the legal representation that each side is able to secure. This can result in situations where wealthy individuals or corporations are able to hire the best lawyers and thus have an unfair advantage over less affluent individuals or groups.

A further criticism of the adversarial system is that it can be adversarial to the point of being hostile and confrontational. This can result in situations where witnesses and victims are treated poorly, and where the legal process can be intimidating and traumatic for those involved. This can be particularly true in cases involving sexual assault, domestic violence, or child abuse, where victims may be reluctant to come forward or may be subject to aggressive cross-examination.

Whose Interests Does The Adversarial System Serve?

Given these flaws, it is worth asking whose interests the adversarial system serves. Critics argue that the adversarial system primarily serves the interests of lawyers and the legal profession, rather than the interests of justice or the wider community. In an adversarial system, lawyers are often able to charge high fees for their services, which can make the legal system prohibitively expensive for many people. This can result in situations where justice is not available to all, but only to those who can afford to pay for it.

In addition, the adversarial system can be seen as serving the interests of those who benefit from the status quo. In many cases, the adversarial system is used to protect the interests of large corporations or wealthy individuals, who may be able to use their resources to defend themselves against legal challenges. This can result in situations where justice is not available to all, but only to those who can afford to pay for it. This can result in situations where powerful interests are able to use the legal system to avoid accountability or to defend themselves against legal challenges. This can result in situations where powerful interests are able to use the legal system to avoid accountability or to maintain their dominance over others.

The Inquisitorial System

[E]ven though inquests and inquiries are formally inquisitorial processes, they are often in reality highly adversarial. The interested persons and their lawyers will fight hard to secure the findings that they want. Whether a person is represented or unrepresented, and how skilled and well-resourced their lawyers are, matters a great deal. The difference between an adversarial and an inquisitorial system is not a binary, but a spectrum. Many proceedings have features of both systems.

The same is true when we look at countries outside the common law world. The most famous example of an inquisitorial system is the French criminal justice system, and the numerous other criminal justice systems around the world that are derived from it. The origins of the French system lie in Napoleon’s 1808 Code of Criminal Instruction. The paradigmatic feature of this tradition is the investigating judge, who oversees the preliminary investigation of the case against the accused. However, in France today only a small minority of criminal investigations are actually overseen by an investigating judge. Most French criminal investigations are instead overseen by prosecutors, who in the French system are also part of the judiciary. Some other systems that were originally based on the French model have abandoned the investigating judge altogether.

Which Is Better: Adversarial or Inquisitorial?

So, which is better: the adversarial system or the inquisitorial system? Many people have strong views on this question. The Australian judge, Ray Finkelstein, argues that the adversarial system is bad at discovering the truth. He says:

“… [T]he parties’ self-interest does not aid the search for truth in a system where it is routine:

(1) for opposing testimony to be discredited regardless of whether it is true or not;

(2) for the incompetence of opposing counsel to be exploited;

(3) for material facts to be omitted from pleadings or withheld due to privilege;

(4) for probative evidence to be excluded; or

(5) for counsel to indulge in sophistry and rhetorical manipulation of which the primary aim is to obscure the truth.

Finkelstein’s arguments are focused on civil cases.

However, it is in the context of criminal cases where the adversarial versus inquisitorial debate tends to be most heated. Richard Lomax, in his report “Reforming Justice” for the charity Toynbee Hall, robustly argues that the inquisitorial system of criminal justice is superior to the adversarial system. He argues that significantly more resources are expended on criminal defence in the English and Welsh adversarial system than in continental European inquisitorial systems. He states that the cost of legal aid in England and Wales is about 15 times the European median, and that whereas the European median for the cost of defence is about 25% of the cost of prosecution, in England and Wales it is nearly 400% more. By contrast, he says, “We spend significantly less on police, prosecutors, and on professional judges. Evidence gatherers, case presenters, and assessors of evidence in comparative terms are all starved of resources.” He goes on to argue that England and Wales and other common law systems tend to have higher rates of imprisonment per capita than European civil law systems.

Restorative Justice

In a restorative justice model, victims, offenders, and community members come together to discuss the harm that has been caused and work together to find a way to repair that harm. Restorative justice has several potential benefits. It can provide victims with a greater sense of closure and satisfaction than traditional criminal justice processes. It can reduce recidivism rates by addressing the underlying causes of criminal behaviour. It can foster a sense of community and promote healing among those affected by the offense.

Some forms of restorative justice are rooted in non-Western traditions of justice and have been heralded as an antidote to the punitive and fault-based European tradition. As Archbishop Desmond Tutu said:

We contend that there is another kind of justice, restorative justice, which has characteristics of traditional African jurisprudence. Here the central concern is not retribution or punishment but, in the spirit of ubuntu, the healing of breaches, the redressing of imbalances, the restoration of broken relationships. This kind of justice seeks to rehabilitate both victim and the perpetrator, who should be given the opportunity to be reintegrated into the community [they have] injured by [their] offence.

Around the world, restorative justice has increasingly been recognised in law, not as a replacement for the judicial system but as an adjunct to it. There are numerous examples around the world of restorative justice programmes in the criminal justice system. In some instances, criminal cases are referred to a restorative justice process as an alternative to prosecution. In other cases, a restorative justice process takes place prior to sentence and is taken into account in sentencing.

However, it is important to note that restorative justice processes do have certain limitations. Restorative justice is not appropriate for all cases, particularly those involving serious offenses or repeat offenders. In these cases, the harm caused may be too severe or the offender may be unrepentant, making it difficult to achieve a meaningful restoration of relationships. Moreover, restorative justice requires a willingness to participate from both the offender and the victim. Restorative justice is also not designed to settle factual disputes. It isn’t equipped to deal with a situation where the accused denies that they did what they are accused of.

Second, some feminists have been critical of the use of restorative justice in the context of sexual and gender-based violence, on the ground that it might serve as an opportunity for the abuser to re-victimise and re-traumatise the victim and might not lead to effective action being taken against the perpetrator to protect other victims.

While these alternative models of justice have their own advantages and disadvantages, they all share a focus on collaboration, problem-solving, and community involvement, rather than adversarialism and punishment.

6. The Climate Change and Public Health Law Site, Louisiana State University Law Center Administrative Adjudications versus Trials (undated) (https://biotech.law.lsu.edu/map/AdministrativeAdjudicationsversusTrials.html)

The greatest weakness of the adversarial system is in the resolution of complex disputes involving scientific or statistical evidence. The evidence in such disputes cannot be effectively evaluated by a judge and jury with no knowledge of the underlying subject matter or scientific analysis in general. This makes the litigation of medical malpractice and other technical medical care cases, such as allegations that drugs or biomaterials are toxic, very problematic. It is for this reason that federal regulatory agencies that deal with technical matters use an inquisitorial method with expert judges and staff.

Private Alternatives to the Courts—Alternative Dispute Resolution (ADR) (https://biotech.law.lsu.edu/map/PrivateAlternativestotheCourtsAlternativ.html)

Litigation is expensive, time consuming, and unpredictable. Juror sympathy can distort the fact-finding, especially in cases where the defendant is a corporation and the plaintiff is an injured child or other sympathetic individual. In litigation between corporations, the years it can take to get a trial can make the eventual verdict meaningless if the cost of the delay in resolving the dispute exceeds the possible verdict. For an individual plaintiff with a small claim, the court system is usually too expensive to make litigation a viable way to resolve the claim. These problems have fueled interest in alternatives to the court system, generally lumped together as ADR. These are contractual remedies, in that the parties must both agree to use the process and to be bound by the result. To the extent that the contract binding the parties is enforceable in court, then the result of the ADR technique will be enforced by the court.

ADR raises two difficult policy issues. The first is the extent that one party can force the other to agree to ADR. For example, should a managed care organization (MCO) be allowed to make accepting ADR a condition of enrollment as a subscriber, when the MCO might be the only health plan offered by the patient’s employer? Should an employer be allowed to demand that all employees sign a binding ADR agreement to keep their jobs? The second issue is that ADR is generally secret, unlike litigation where the issues are aired publically. Should an MCO be able to keep its medical malpractice claims secret by keeping them out of court? Should an employer be able to keep workplace discrimination claims, perhaps racial or sexual harassment, secret by requiring that they be settled through ADR and that the results be kept secret?

6. Nancy Gertner and Joseph Sanders, Alternatives to Traditional Adversary Methods of Presenting Scientific Expertise in the Legal System, 147 (4) Daedalus 135–151 (2018) (https://doi.org/10.1162/daed_a_00525)

Abstract

The twin goals of any litigation are to arrive at a correct outcome and provide the parties with a sense that they were treated justly, even if they do not prevail. Adversarial proceedings are often perceived to be superior to inquisitorial proceedings with respect to the second goal but inferior with respect to the first. This is especially the case when proceedings involve expert testimony. In this essay, we discuss several relatively minor changes to typical adversarial processes that offer the potential of improving trial accuracy without disrupting the overall structure of adversarial proceedings. These changes include 1) alterations to the organization of the trial, including concurrent expert testimony; 2) alterations to the role of the jury, including taking notes, asking questions, and receiving written expert reports; and 3) formal expert witness codes of conduct designed to better arm experts to resist the adversarial pressures that lead to biased testimony.

What objectives are we seeking to achieve? In what respect do the existing methods fall short of those objectives? Federal Rule of Evidence 102, a rule that sets forth the purposes of the rules of evidence, is a useful place to begin this inquiry.

Rule 102. Purpose

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

As Rule 102 suggests, ascertaining the truth is not the sole objective of the rules controlling the admissibility of evidence. Nor is it the sole goal of the legal system. Procedural and evidentiary rules should be fair and should secure a just determination of the issues. “Fair” and “just determination”: these terms do not define themselves.

[Social psychology] research tells us that the decision maker’s perceived neutrality, the level of respect the decision maker gives the parties, the amount of voice and control the parties have over the litigation, and the trust parties have in the decision maker’s motive to be fair all contribute to perceptions of procedural justice. Moreover, these perceptions are remarkably robust across demographic groups and societies.

Rule 102 also calls for ascertaining the truth. This lofty goal is best understood as a desire to achieve factual accuracy. Factual accuracy is more easily defined than justice, but it is at least as difficult to measure. Moreover, unlike perceptions of procedural justice, which are to a large extent subjective, factual accuracy is ostensibly about objective truth, albeit a truth that is not easy to ascertain.

Legal scholar Oscar Chase, for example, included the following three adversarial system components in his essay on what he called American procedural exceptionalism: the use of party-controlled pretrial investigation, the relatively passive role of the judge at the trial or hearing, and the method of obtaining and using expert opinions (that is, parties hire and prepare experts). Collectively, these components reinforce the idea that expert knowledge is a partisan resource.

Thibaut and Walker asked U.S. students to imagine different mechanisms for resolving hypothetical conflicts. The alternatives included mediation, investigation and resolution by a neutral decision maker, and arguments presented by advocates for each side to a third-party decision maker. The third alternative is most similar to adversarial procedures. A substantial majority of students declared this alternative to be the most just. Numerous other studies have reproduced this result.

Although the studies produce consistent results about the perceived strengths and weaknesses of adversarial processes, the effects are, as Sevier notes, modest. It is not the case that respondents perceive adversarial processes as wholly devoid of accuracy or inquisitorial processes as wholly devoid of procedural fairness. 

[W]hile these perceptions come from individuals who have relatively little experience with the day-to-day workings of the adversarial process, similar judgments are shared by those who do. A well-known article by legal scholar John Langbein argued that German inquisitorial civil procedure was superior to adversary procedures in terms of fact-finding.

Three of the most notable judicial critics of adversarial procedures as a way to ascertain the truth are Federal Appellate Judge Jerome Frank, FDR’s attorney general Thurman Arnold, and U.S. Federal Judge Marvin Frankel. Describing adversarial proceedings as a “fight model,” they reject the argument that this approach is a particularly useful way to assess the truth. Consider, for example, this statement from Arnold:

Bitter partisanship in opposite directions is supposed to bring out the truth. Of course no rational human being would apply such a theory to his own affairs…. [M]utual exaggeration of opposing claims violate(s) the whole theory of rational, scientific investigation. Yet in spite of this most obvious fact, the ordinary teacher of law will insist (1) that combat makes for clarity, (2) that heated arguments bring out the truth, and (3) that anyone who doesn’t believe this is a loose thinker.

Even though many judges support the adversarial system as a method of trying cases, surveys indicate that many also agree with at least one of the critiques of Frank, Arnold, and Frankel: expert witness bias. The most frequently articulated problem is that party experts abandon objectivity and become advocates for the side that hired them. Several studies support this concern, indicating that simply being part of an adversarial process results in a skewed presentation of facts and opinion.

Because parties select witnesses, bias may also arise from the selection process itself. As a number of scholars have noted, lawyers commonly consult multiple experts until they find some who reflect their position, even if this position is well out of the mainstream of expert opinion on the issue.

Where there is a battle of experts, jurors are very skeptical of party experts.

Although skepticism about the testimony of expert witnesses may be a good starting point for juror efforts to sort out the truth, this does not ensure accuracy if skepticism simply causes jurors to disregard expert testimony. Skepticism seems likely to be increased by cross-examinations that cast doubt on the qualifications and biases of expert witnesses and their testimony. But in the laboratory, even “strong” cross-examinations that focus on the specific weaknesses of an expert’s testimony appear to be of limited efficacy in persuading jurors to reject testimony based on faulty science.

A more useful way to think of juror responses to expert testimony is to consider the distinction between central and peripheral processing. In central or systematic processing, people examine the content of a communication to assess its validity In peripheral or heuristic processing, people do not attend to the quality and validity of arguments. Rather, they take shortcuts to determine the value of a persuasive attempt. People rely on factors such as the number of arguments made (rather than their quality) or attributes of the communicator such as credentials or attractiveness.

The principal question for those interested in how factfinders respond to expert witnesses concerns the degree to which the factfinders employ central processing and the degree to which they employ peripheral processing. Studies have found that people centrally process information, which is to say they then engage in a high degree of cognitive processing of the message content, when they are knowledgeable about the topic, when the topic is relevant to their concerns, when they are motivated, and when the information is comprehensible to them.

Not all peripheral processing is a bad thing. For example, a wise juror would assign some weight to the credentials and experience of experts. However, some research suggests that in assessing experts, laypeople focus more on the background and experience of witnesses than on the empirical support for a proposition.

In some criminal trials, the judicial role is simultaneously passive and active. It is passive with regard to the admission of government experts, and active in the exclusion of defense experts. The process produces biased government experts, defense counsel without the tools to challenge them, and jurors who have no problem finding government experts credible, notwithstanding the heightened burden of proof in criminal cases.

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