I have wondered from time to time, as I watch the American justice system in action, whether we are truly concerned with facts – truth if you will – so much as we are in a process. If the process “works,” then on the average we are happy, and assume that justice has been done.

Of course there are occasions, frequent ones, in which popular opinion is that justice has not been done. But even in these cases, it is not the process that people blame. Rather, we assume that some person or group has not behaved according to the rules. If the rules were followed, and people were really doing their jobs, things would work out.

But what is it that guarantees that the process will actually work? How does one check on the process?

We have recently seen just such a check following the development of DNA testing. A number of people on death row have been released because of DNA testing on the evidence from their crime. Now though it’s interesting to think how many crimes might have been solved if more recent techniques had been available, it would be grossly unfair to fault people for not using evidence resulting from a method that had not been developed yet. What does interest me, however, is that we generally assumed a higher rate of accuracy than the facts are now suggesting.

But what kind of check is there on the process in general? How does one discover precisely how well a system of justice is working? Is there a standard by which one judges the judges? We’d like to say “truth,” but the fact is that we don’t actually know the truth. We discovered a certain number of errors using DNA techniques, but we still don’t have an accurate count of how many convicted murderers might be innocent, or, for that matter, how many free people might actually be murderers.

So let me rephrase my question. How can we keep the justice system pointed in the right direction? I’m assuming here that “right” is in the direction of accuracy; that we want the guilty (actually guilty) punished, and the innocent to be set free.

Let’s look at it another way, however. We do know (or we think we do!) that some guilty people have been set free because of faults in the process. Well, wait a minute – what we actually know is that people who, in our best judgment, would have been convicted by a properly functioning system have been set free. Bottom line: We don’t know.

But there is one thing that I think we do know in these latter cases. The system is focused on itself. The primary question asked is not how accurate the information available is, or how it relates to guilt or innocence, but rather how it was collected, and whether the proper documentation is involved.

A police officer enters a house on a hunch, and finds a murder weapon. Because that officer did not obtain a warrant, the evidence is excluded. In another case the officer does obtain the warrant. That evidence is accepted. But both bear precisely the same logical connection to the guilt or innocence of a person charged.

A defendant confesses to the police in the first few minutes after an arrest. If the police did not properly inform the defendant of his rights prior to the confession, it may be excluded, though in the absence of trickery or coercion, it again bears the same logical relation to guilt or innocence.

I certainly don’t want the police searching random people or beating confessions out of defendants, but even the remedy to this is focused on the system. The prosecutor or police officer who failed observe the procedures find that their efforts result in failure. We exclude the evidence, thus making the job more difficult for the police and court officials involved. That society may suffer as well is simply a side effect, rather than a focus for the system of justice.

Or consider juries. We spend a great deal of time researching jury selection. In fact, the wrong jury (depending on whose side you’re on) can create guilt or innocence without any consideration of the available evidence. Jury nullification – a dirty word in court, but a fact in practice – simply means that a jury refused to convict someone of violating a law, either because they thought the law unjust or favored the defendant’s actions. And jury nullification works, provided one finds enough sympathetic jurors. A few years back a trial was held in a nearby county on an environmental charge. Some persons who favored the defendants position and were aware of jury nullification tried to make as much of the public aware of their position as possible, so that there might be someone on the jury who would consciously support nullification, and would persuade the jury to vote their feelings about the law, rather than about the truth of the charges.

But suppose we have a jury dedicated to finding the truth. How many of them possess the mental equipment or intellectual tools to decipher complex evidence. Sometimes when juries come back with incomprehensible verdicts, we might consider the possibility that they were simply overwhelmed and had to resort their feelings. After all, a juror is preferred who either hasn’t read the publicity about the case or has not formed an opinion. Do we really expect someone who wasn’t interested enough to have read the local papers to suddenly become a fully involved participant? Such jurors may respond to the call of duty, but rarely will the call of duty awaken the needed mental equipment. We use qualified prosecutors, defense attorneys and judges, but those who decide what the truth is in each case are primarily distinguished by their ignorance.

One might easily conclude that I am very disillusioned with our system of justice, our court procedures and our juries, and that I would be prepared to throw them all out. But I hope I have made it clear that I understand that 100% accuracy is unobtainable. More importantly, however, one must have a replacement for what one discards, and the replacement needs to be better than what it replaces.

Let me suggest some areas to examine:

1. Focus the trial on truth rather than procedure. Let the jury do its job.
2. Provide penalties for improper behavior by law enforcement, but where such behavior doesn’t taint the evidence factually, such as by bringing into question whether it is genuine, allow it. In cases of questions, let the jury do it’s job.
3. Reduce the options for jury selection. Our system tends toward least common denominator juries. Perhaps all challenges to jurors should require justification.
4. Make it clear as voters that we want the system focused on the truth.

I’m definitely not a legal scholar. Any lawyer reading this will be able to tell! But I address this to the common voters such as myself. Let’s express through the ballot and through the opinions we communicate to our lawmakers that we want a system focused on the truth.