University of California, Los angeles Public Law legal Theory research Paper Series COMPARATIVE LAW WITHOUT LEAVING HOME WHAT CIVIL PROCEDURE CAN TEACH CRIMINAL PROCEDURE AND VICE VERSA DAVID A SKLANSKY and STEPHEN C. YEAZELL Research Paper No 059 This paper may be downloaded without charge The Social Science Research Network Electronic Paper Collection http://ssrn.com/abstract=706601 aRaDi novation UCLA SCHOOL OF LAW
University of California, Los Angeles School of Law Public Law & Legal Theory Research Paper Series COMPARATIVE LAW WITHOUT LEAVING HOME: WHAT CIVIL PROCEDURE CAN TEACH CRIMINAL PROCEDURE, AND VICE VERSA DAVID A. SKLANSKY and STEPHEN C. YEAZELL Research Paper No. 05-9 This paper may be downloaded without charge at: The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=706601
COMPARATIVE LAW WITHOUT LEAVING HOME WHAT CIVIL PROCEDURE CAN TEACH CRIMINAL PROCEDURE, AND VICE VERSA David A Sklansky Stephen C. Yeazell This is a plea for comparative work in civil and criminal procedure. We do not argue here that American civil and criminal pI ocedure e cou frequently with their analogs overseas. Surely that is true, but both the need for and the difficulties associated with this kind of work are well understood. We argue instead for something at once more straightforward and more radical regularly contrasting American civil and criminal procedure with each other:. This is a plea for comparative work in our own backyards. It seeks to demonstrate that such work has benefits, illuminating the ignificance of overlooked features and providing a more stable base for reform Civil litigation and criminal litigation in the contemporary United States occupy separate worlds. They employ different procedural rules, often before different judges in different courthouses, and with almost entirely unconnected bars, each of which views the other with an attitude verging on contempt. In law schools, civil and criminal process are taught in separate courses by scholars whose ranks rarely overlap and who read little of the work produced by their opposite numbers. Many judges, of course, still hear a mixture of civil and criminal cases; that is the practice in federal court, as well as in many state and local courts, particularly outside of big cities. Aside from this point of contact though, there is little else to suggest that the two dockets are part of the same legal system Precisely because civil and criminal procedure differ so strikingly today, drawin comparisons between the two sets of rules can be difficult, and the utility of the exercise can seem doubtful. What, for example, is the modern, criminal equivalent of civil doctrines of standing? What are the civil analogs to probation and parole? Comparing civil and criminal procedure can seem like comparing tangerines and socket wrenches, or like suggesting that barbers and surgeons, who after all share some professional history, should exchange notes more often today. maybe civil and criminal procedure are rarely compared today because, in fact, they are incomparable We think otherwise. Our grounds are basically two Law. The authors are particularly indebted to Norman Abrams, Alison Anderson, Stephen Bundy, Ann Carlson, Pamela Karlan, Kenneth Karst, Daniel Klerman, John Langbein, Maximo Langer, william Rubenstein, David Shapiro, Eleanor Swift, and Charles Weisselberg for helpful criticism of earlier drafts Charles D'Itri and the Hugh Hazel Darling Law Library for research assistance, and the UCLA Academic Senate and the UCLA School of Law Deans Fund for financial support David g. price and Dallas P price professor of law. UCLA School of law With some distinguished exceptions, of course. See, e.g., ROBERT M. COVER, OWEN M. FisS JUDITH RESNIK, PROCEDURE9-21,428-53,581-88,606-11,649-58,764-76,77779,788-829,1147-67, 1573-79, 1580-83 1668-74(1988: OwN M. Fiss JUDITH RESNIK, ADJUDICATION AND ITS ALTERNATIVES: AN INTRODUCTION TO PROCEDURE 14-26, 149-51, 645-48, 772-77(2003)
COMPARATIVE LAW WITHOUT LEAVING HOME: WHAT CIVIL PROCEDURE CAN TEACH CRIMINAL PROCEDURE, AND VICE VERSA David A. Sklansky* & Stephen C. Yeazell** This is a plea for comparative work in civil and criminal procedure. We do not argue here that American civil and criminal procedure should be counterpoised more frequently with their analogs overseas. Surely that is true, but both the need for and the difficulties associated with this kind of work are well understood. We argue instead for something at once more straightforward and more radical: regularly contrasting American civil and criminal procedure with each other. This is a plea for comparative work in our own backyards. It seeks to demonstrate that such work has benefits, illuminating the significance of overlooked features and providing a more stable base for reform. Civil litigation and criminal litigation in the contemporary United States occupy separate worlds. They employ different procedural rules, often before different judges in different courthouses, and with almost entirely unconnected bars, each of which views the other with an attitude verging on contempt. In law schools, civil and criminal process are taught in separate courses by scholars whose ranks rarely overlap and who read little of the work produced by their opposite numbers.1 Many judges, of course, still hear a mixture of civil and criminal cases; that is the practice in federal court, as well as in many state and local courts, particularly outside of big cities. Aside from this point of contact, though, there is little else to suggest that the two dockets are part of the same legal system. Precisely because civil and criminal procedure differ so strikingly today, drawing comparisons between the two sets of rules can be difficult, and the utility of the exercise can seem doubtful. What, for example, is the modern, criminal equivalent of civil doctrines of standing? What are the civil analogs to probation and parole? Comparing civil and criminal procedure can seem like comparing tangerines and socket wrenches, or like suggesting that barbers and surgeons, who after all share some professional history, should exchange notes more often today. Maybe civil and criminal procedure are rarely compared today because, in fact, they are incomparable. We think otherwise. Our grounds are basically two. * Professor of Law, UCLA School of Law; Visiting Professor of Law, U.C. Berkeley School of Law. The authors are particularly indebted to Norman Abrams, Alison Anderson, Stephen Bundy, Ann Carlson, Pamela Karlan, Kenneth Karst, Daniel Klerman, John Langbein, Máximo Langer, William Rubenstein, David Shapiro, Eleanor Swift, and Charles Weisselberg for helpful criticism of earlier drafts; Charles D’Itri and the Hugh & Hazel Darling Law Library for research assistance; and the UCLA Academic Senate and the UCLA School of Law Dean’s Fund for financial support. ** David G. Price and Dallas P. Price Professor of Law, UCLA School of Law. 1 With some distinguished exceptions, of course. See, e.g., ROBERT M. COVER, OWEN M. FISS & JUDITH RESNIK, PROCEDURE 9-21, 428-53, 581-88, 606-11, 649-58, 764-76, 777-79, 788-829, 1147-67, 1573-79, 1580-83 1668-74 (1988); OWN M. FISS & JUDITH RESNIK, ADJUDICATION AND ITS ALTERNATIVES: AN INTRODUCTION TO PROCEDURE 14-26, 149-51, 645-48, 772-77(2003)
First, despite everything, civil and criminal procedure still have a lot in common They are both, after all, systems of adjudicating- or otherwise resolving-disputes, and settling-or sidestepping-disagreements about historical facts. They both aim at fairness, accuracy, and efficiency-albeit in different mixtures. They share similar stages:pleading, discovery, trial or settlement, and appeal. They share the institution of the jury. They both have rules designed to protect the finality of judgments. Civil litigation, we will argue in this essay, has been essentially privatized, whereas criminal litigation is today more or less a government monopoly. But enough points of commonality remain to make systematic comparison appear worthwhile, even accepting the degree to which the criminal-civil divide has come to parallel the public-private divide Second, there are reasons to doubt the wisdom of replicating the public-private divide in the world of legal process. Many of the complaints raised about civil litigation today can be understood as objections to how far it has been privatized--how little regard the process seems to have for the broader public interest. Conversely, some of the loudest criticisms of criminal process over the past couple of decades have been about the way the system ignores the"private"interests of victims We certainly do not contend that civil and criminal cases have no important differences and should be treated the same. There are large differences between the two categories of cases, and comparisons between them, if drawn carelessly, can be dangerously misleading. We will pause occasionally in the following pages to point out some of those dangers. But we do think civil and criminal process can each learn things from the other--including a keener understanding of its own nature, and a healthy degree of skepticism about its own assumptions. In civil process today, important critiques are too often brushed aside with appeals to the notion that the public's only interest is in rough fairness between the parties and in moving the docket along. The states role as a guarantor of fair and accurate results has become vestigial. Meanwhile criminal process has taken on some of the less attractive features of government bureaucracies, including a pronounced institutional inertia and a resistance to the involvement of interested third parties S F.C. Milsom has argued that a special genius of the common law, one that partly offsets its untidiness and inconsistency, is the ability to provide points of comparison and alternative solutions to problems that present themselves in more than one setting. Civil and criminal procedure offer underappreciated opportunities for precisely this kind of cross-pollination. Misled by the sense that the two realms have entirely different goals, we have asked too infrequently whether they have anything to teach each other. We are more likely to contemplate borrowing practices from a foreig legal system than from the next courtroom There is nothing wrong with international comparison; we could use a good deal more of it. But we should not ignore the similar opportunities closer to home 2 See S F.C. Milsom, Reason in the Development of the Common Law, 81 LAW Q. REV. 49 (1965), reprinted in S.F.C. MILSOM, STUDIES IN THE HISTORY OF THE COMMON LAW 149(1985)
2 First, despite everything, civil and criminal procedure still have a lot in common. They are both, after all, systems of adjudicating—or otherwise resolving—disputes, and settling—or sidestepping—disagreements about historical facts. They both aim at fairness, accuracy, and efficiency—albeit in different mixtures. They share similar stages: pleading, discovery, trial or settlement, and appeal. They share the institution of the jury. They both have rules designed to protect the finality of judgments. Civil litigation, we will argue in this essay, has been essentially privatized, whereas criminal litigation is today more or less a government monopoly. But enough points of commonality remain to make systematic comparison appear worthwhile, even accepting the degree to which the criminal-civil divide has come to parallel the public-private divide. Second, there are reasons to doubt the wisdom of replicating the public-private divide in the world of legal process. Many of the complaints raised about civil litigation today can be understood as objections to how far it has been privatized—how little regard the process seems to have for the broader public interest. Conversely, some of the loudest criticisms of criminal process over the past couple of decades have been about the way the system ignores the “private” interests of victims. We certainly do not contend that civil and criminal cases have no important differences and should be treated the same. There are large differences between the two categories of cases, and comparisons between them, if drawn carelessly, can be dangerously misleading. We will pause occasionally in the following pages to point out some of those dangers. But we do think civil and criminal process can each learn things from the other—including a keener understanding of its own nature, and a healthy degree of skepticism about its own assumptions. In civil process today, important critiques are too often brushed aside with appeals to the notion that the public’s only interest is in rough fairness between the parties and in moving the docket along. The state’s role as a guarantor of fair and accurate results has become vestigial. Meanwhile criminal process has taken on some of the less attractive features of government bureaucracies, including a pronounced institutional inertia and a resistance to the involvement of interested third parties. S.F.C. Milsom has argued that a special genius of the common law, one that partly offsets its untidiness and inconsistency, is the ability to provide points of comparison and alternative solutions to problems that present themselves in more than one setting.2 Civil and criminal procedure offer underappreciated opportunities for precisely this kind of cross-pollination. Misled by the sense that the two realms have entirely different goals, we have asked too infrequently whether they have anything to teach each other. We are more likely to contemplate borrowing practices from a foreign legal system than from the next courtroom over. There is nothing wrong with international comparison; we could use a good deal more of it. But we should not ignore the similar opportunities closer to home. 2 See S.F.C. Milsom, Reason in the Development of the Common Law, 81 LAW Q. REV. 496 (1965), reprinted in S.F.C. MILSOM, STUDIES IN THE HISTORY OF THE COMMON LAW 149 (1985)
Domestic comparison, in fact, may have some advantages over international comparative law. One of the notorious problems of the latter enterprise is that the systems under scrutiny are so embedded in their own respective cultures that transplants and borrowings--indeed, sometimes even meaningful comparisons--prove difficult American civil and criminal process, on the other hand, have grown from the same social and political soil. It should therefore be possible to draw comparisons with greater confidence and to contemplate borrowings with less worrying about what will be lost in "translation This is an important point, because by international standards the similarities between American criminal and civil process are probably more striking than their differences. Broadly speaking, the Continental legal tradition has distinguished ever more sharply than the Anglo-American tradition between public and private, and between criminal and civil. To call for more cross-comparison between American civil and criminal process is thus to call, in a sense, for widening the divide between the American legal system, taken as a whole, and its Continental analogs. We think the trade-off is worthwhile, for reasons we will explain, but it should be recognized at the outset In the pages that follow we seek to demonstrate what is lost when civil and criminal process are treated as incomparable, and what is gained when they are not. We first provide some historical context. Although the divide between civil and criminal process is quite old, the current contours of that divide are not. One needs to go back only a century or so to find a world in which the chasm was far narrower than it is today Revisiting that world helps to underscore the contingency of our current thinking about civil and criminal process, and will provide the conceptual platform for the remainder of The second part of the essay describes four areas in which modern civil and criminal process address similar problems in starkly different ways--settlement, finality, discovery, and remedies for failed process. In each of these areas, we suggest, criminal process and civil process each has something to teach the other. Civil settlement practie might profitably borrow from the tradition on the criminal side that case dispositions need judicial approval; criminal practice might learn from the tradition on the civil side of involving judges in the negotiations leading up to settlement. The notorious complexity of double jeopardy law could be alleviated--and the oddity of some of its features made e apparent-by more frequent comparison with civil doctrines of former djudication. Civil discovery might benefit from some of the limiting mechanisms of riminal discovery; criminal discovery might profitably emulate, to some degree, the symmetry of civil discovery. And lessons can be learned from comparing the law of S See, e.g, MIRJAN R DAMASKA, THE FACES OF JUSTICE AND STATE AUTHORITY(1986); John H angbein, The Influence of Comparative Procedure in the United States, 43 AM J COMP L 545(1995) Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea bargaining Ind the Americanization Thesis in Criminal Procedure, 45 HARV. INT'L L.J. 1(2004) Langer, supra note 3, at 29-35
3 Domestic comparison, in fact, may have some advantages over international comparative law. One of the notorious problems of the latter enterprise is that the systems under scrutiny are so embedded in their own respective cultures that transplants and borrowings—indeed, sometimes even meaningful comparisons—prove difficult.3 American civil and criminal process, on the other hand, have grown from the same social and political soil. It should therefore be possible to draw comparisons with greater confidence and to contemplate borrowings with less worrying about what will be lost in "translation."4 This is an important point, because by international standards the similarities between American criminal and civil process are probably more striking than their differences. Broadly speaking, the Continental legal tradition has distinguished even more sharply than the Anglo-American tradition between public and private, and between criminal and civil. To call for more cross-comparison between American civil and criminal process is thus to call, in a sense, for widening the divide between the American legal system, taken as a whole, and its Continental analogs. We think the trade-off is worthwhile, for reasons we will explain, but it should be recognized at the outset. In the pages that follow we seek to demonstrate what is lost when civil and criminal process are treated as incomparable, and what is gained when they are not. We first provide some historical context. Although the divide between civil and criminal process is quite old, the current contours of that divide are not. One needs to go back only a century or so to find a world in which the chasm was far narrower than it is today. Revisiting that world helps to underscore the contingency of our current thinking about civil and criminal process, and will provide the conceptual platform for the remainder of the essay. The second part of the essay describes four areas in which modern civil and criminal process address similar problems in starkly different ways—settlement, finality, discovery, and remedies for failed process. In each of these areas, we suggest, criminal process and civil process each has something to teach the other. Civil settlement practice might profitably borrow from the tradition on the criminal side that case dispositions need judicial approval; criminal practice might learn from the tradition on the civil side of involving judges in the negotiations leading up to settlement. The notorious complexity of double jeopardy law could be alleviated—and the oddity of some of its features made more apparent—by more frequent comparison with civil doctrines of former adjudication. Civil discovery might benefit from some of the limiting mechanisms of criminal discovery; criminal discovery might profitably emulate, to some degree, the symmetry of civil discovery. And lessons can be learned from comparing the law of 3 See, e.g., MIRJAN R. DAMAŠKA, THE FACES OF JUSTICE AND STATE AUTHORITY (1986); John H. Langbein, The Influence of Comparative Procedure in the United States, 43 AM J. COMP. L. 545 (1995); Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 HARV. INT'L L.J. 1 (2004). 4 Langer, supra note 3, at 29-35
malpractice on the civil side with criminal doctrines regarding effective assistance of counsel The third and concluding part of the essay discusses two areas-evidence and professional ethics--in which civil and criminal rules are already more or less unified, and have been so for a relatively long time. In each of these fields, we argue, cross- fertilization between civil and criminal litigation has improved the rules applied in both sets of cases. Rules regarding expert testimony, for example, have benefited from the presumption that they should apply equally in civil and in criminal cases. The same is true of rules regarding the proper limits of zealous advocacy A final caveat is in order before we begin. This is a speculative essay, not a comprehensive program for reform. We think that comparing criminal and civil procedure can generate helpful insights and highlight overlooked possibilities, and we give examples of such insights and possibilities in the pages that follow. We do not claim that every possibility we identify deserves to be pursued, nor that we have identified all areas that might profitably be pursued. What we do claim, and what we hope our examples help to show, is that American civil and criminal process have things to teach each other . HOW WE GOT HERE A. When All Process Was Private In civil justice today the state sometimes seems to have no role to play; in criminal justice the citizen sometimes seems to have no role to play. One branch of law seems to have become the exclusive province of private disputes between peers. The other branch of law has become a state monopoly, and many aspects of procedural design reflect the tension between the desire to minimize crime and public expense at the same time and the special concerns that arise when the state deploys its power against the citizen The criminal-civil divide and the public-private divide both appear to be such fundamental features of the law that it is easy to forget for how short a time they have been conjoined in this manner. As recently as the nineteenth century--indeed, well into the twentieth century--civil and criminal proceedings were, in essence, alternative ways for aggrieved victims of wrongs to enlist the adjudicative machinery of the state in seeking redress For most of the nineteenth century, moreover, these two ancient systems of redress seemed to be converging rather than diverging. The mechanism was cro pollination, and the most important pollinators were lawyers. Lawyers themselves were an innovation that criminal practice borrowed from civil litigation. Opposing counsel were common in civil cases by the early eighteenth century. Then they were imported in stages into criminal trials, often via statutory and constitutional provisions that explicitly
4 malpractice on the civil side with criminal doctrines regarding effective assistance of counsel. The third and concluding part of the essay discusses two areas—evidence and professional ethics—in which civil and criminal rules are already more or less unified, and have been so for a relatively long time. In each of these fields, we argue, crossfertilization between civil and criminal litigation has improved the rules applied in both sets of cases. Rules regarding expert testimony, for example, have benefited from the presumption that they should apply equally in civil and in criminal cases. The same is true of rules regarding the proper limits of zealous advocacy. A final caveat is in order before we begin. This is a speculative essay, not a comprehensive program for reform. We think that comparing criminal and civil procedure can generate helpful insights and highlight overlooked possibilities, and we give examples of such insights and possibilities in the pages that follow. We do not claim that every possibility we identify deserves to be pursued, nor that we have identified all areas that might profitably be pursued. What we do claim, and what we hope our examples help to show, is that American civil and criminal process have things to teach each other. I. HOW WE GOT HERE A. When All Process Was Private In civil justice today the state sometimes seems to have no role to play; in criminal justice the citizen sometimes seems to have no role to play. One branch of law seems to have become the exclusive province of private disputes between peers. The other branch of law has become a state monopoly, and many aspects of procedural design reflect the tension between the desire to minimize crime and public expense at the same time and the special concerns that arise when the state deploys its power against the citizen. The criminal-civil divide and the public-private divide both appear to be such fundamental features of the law that it is easy to forget for how short a time they have been conjoined in this manner. As recently as the nineteenth century—indeed, well into the twentieth century—civil and criminal proceedings were, in essence, alternative ways for aggrieved victims of wrongs to enlist the adjudicative machinery of the state in seeking redress. For most of the nineteenth century, moreover, these two ancient systems of redress seemed to be converging rather than diverging. The mechanism was crosspollination, and the most important pollinators were lawyers. Lawyers themselves were an innovation that criminal practice borrowed from civil litigation. Opposing counsel were common in civil cases by the early eighteenth century. Then they were imported in stages into criminal trials, often via statutory and constitutional provisions that explicitly
allowed for counsel to appear in criminal prosecutions"as in civil cases. By the nineteenth century lawyers were common in criminal as well as civil cases, and often the same lawyers appeared in both kinds of proceedings. Once lawyers had feet on both ides of the criminal-civil divide, they began to carry ideas back and forth between the two realms, and the divide started to shrink. Take, for example, the aggressive use of objections to shape and limit testimony--the foundation of the modern law of evidence This practice appears to have arisen first in criminal trials and then to have been imported into civil cases by lawyers who appeared on both sides of the docket. Because the practice crossed the procedural divide so quickly, modern evidence law, when it began to solidify in the late nineteenth century, drew few distinctions between civil and crimin cases-a fact to which we will return later in this essay. Today, of course, the civil bar and the criminal bar are largely separate, and the great majority of criminal lawyers are employed by the government---regardless of which side they represent. In the nineteenth century, by contrast, the private bar was more unified. and it handled the bulk of litigation, both civil and criminal. Criminal prosecution, let alone criminal defense, had not yet become a government monopoly Before the Civil War, in fact, criminal prosecution was not even a government specialty The system relied on private prosecution, with state officials involved only in a minority of cases. So overwhelming was the case load for such officials that citizens with an interest in seeing justice done often hired private prosecutors to marshal evidence and to prosecute the case. Understandably, such citizens were often the victims, or family members of the victims, of the crimes alleged. The real or suspected motive of vengeance provided arguments for the defendant, and, more occasionally, criticism from appellate courts. But private prosecution flourished well into the twentieth century, in large part because few public prosecutors were funded and staffed well enough to bring charges in the vast run of cases This practice meant that for many citizens the functions of criminal and civil justice were barely distinguishable. Both served as means for citizens to pursue Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 MICH. L REV. 1086, 1 126(1994)(quoting N.Y. CONST (1777)) Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L REV. 497(1990), John H Langbein, The Criminal Trial Before Layers, 45 U CHI. L REV. 263(1978); John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L REv. 1168(1996)[hereinafter Langbein, Historical Foundations of the Law of Evidence 7 See T P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499(1999). It is not entirely clear why heavy reliance on evidentiary objections to testimony appeared first in criminal trials Langbein speculates it had to do with the fact criminal trials involved more witnesses and fewer documents See Langbein, Historical Foundations of the law of Evidence, supra note 6, at 1201-02. Gallanis proposes instead that lawyers in criminal cases were forced to turn their attention to objections because"prisoners counsel was allowed to do little more than cross-examine the victim and the other witnesses supporting the charge", he could not, in particular, address the jury. See Gallanis, supra, at 545 8 Robert M. Ireland, Privately Funded Prosecution of Crime in Nineteenth-Century United State 9 AM J LEGAL HIST. 43(1995)
5 allowed for counsel to appear in criminal prosecutions “as in civil cases.”5 By the nineteenth century lawyers were common in criminal as well as civil cases, and often the same lawyers appeared in both kinds of proceedings.6 Once lawyers had feet on both sides of the criminal-civil divide, they began to carry ideas back and forth between the two realms, and the divide started to shrink. Take, for example, the aggressive use of objections to shape and limit testimony—the foundation of the modern law of evidence. This practice appears to have arisen first in criminal trials and then to have been imported into civil cases by lawyers who appeared on both sides of the docket.7 Because the practice crossed the procedural divide so quickly, modern evidence law, when it began to solidify in the late nineteenth century, drew few distinctions between civil and criminal cases—a fact to which we will return later in this essay. Today, of course, the civil bar and the criminal bar are largely separate, and the great majority of criminal lawyers are employed by the government—regardless of which side they represent. In the nineteenth century, by contrast, the private bar was more unified, and it handled the bulk of litigation, both civil and criminal. Criminal prosecution, let alone criminal defense, had not yet become a government monopoly. Before the Civil War, in fact, criminal prosecution was not even a government specialty. The system relied on private prosecution, with state officials involved only in a minority of cases. So overwhelming was the case load for such officials that citizens with an interest in seeing justice done often hired private prosecutors to marshal evidence and to prosecute the case. Understandably, such citizens were often the victims, or family members of the victims, of the crimes alleged. The real or suspected motive of vengeance provided arguments for the defendant, and, more occasionally, criticism from appellate courts. But private prosecution flourished well into the twentieth century, in large part because few public prosecutors were funded and staffed well enough to bring charges in the vast run of cases.8 This practice meant that for many citizens the functions of criminal and civil justice were barely distinguishable. Both served as means for citizens to pursue 5 Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 MICH. L. REV. 1086, 1126 (1994) (quoting N.Y. CONST. (1777)). 6 Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L. REV. 497 (1990); John H. Langbein, The Criminal Trial Before Lawyers, 45 U. CHI. L. REV. 263 (1978); John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168 (1996) [hereinafter Langbein, Historical Foundations of the Law of Evidence]. 7 See T.P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499 (1999). It is not entirely clear why heavy reliance on evidentiary objections to testimony appeared first in criminal trials. Langbein speculates it had to do with the fact criminal trials involved more witnesses and fewer documents. See Langbein, Historical Foundations of the Law of Evidence, supra note 6, at 1201-02. Gallanis proposes instead that lawyers in criminal cases were forced to turn their attention to objections because “prisoner’s counsel was allowed to do little more than cross-examine the victim and the other witnesses supporting the charge”; he could not, in particular, address the jury. See Gallanis, supra, at 545. 8 Robert M. Ireland, Privately Funded Prosecution of Crime in Nineteenth-Century United States, 39 AM. J. LEGAL HIST. 43 (1995)
grievances about the behavior of others. In both processes the vigor with which the complaints were pursued and the timing and means by which the disputes were terminated lay in the hands of instigators. Allen Steinberg's study of private prosecution in Philadelphia before the Civil War makes the linkage clear During the first half of the nineteenth century ... an elaborate system of criminal justice typified by private prosecution and dominated by the citys alderman became entrenched in Philadelphia L enforcement became the responsibility of a community's residents, and the mechanism they used was the one remaining from the eighteenth-century town-the private criminal suit instituted in the office of the neighborhood alderman.. Aldermen had no power to implement the final disposition of these cases, but the decision about how far along the criminal justice process a case would go rested primarily with these officials and the private parties There was little role for a public prosecutor in this system of law enforcement The state had little direct interest in it, and when the state was involved, no major friction existed between the citizenry and the alderman."Although aldermen were officers of the state, their real dependence was on the private citizens who provided their fees. In such a regime, citizens and lawyers alike might perceive relatively little distinction between instituting civil and criminal litigation: in either, the complainant would initiate the case, would pursue it, and would end it when and if he reached a satisfactory settlement with his adversary. So deeply ingrained were these assumptions that even at mid-century people objected to the public prosecutor's playing any role in prosecution, on the grounds that to do so would be to favor one citizen(the complain witness, as we now might call her)over anoth Understanding this situation gives us more insight into an institution that now seems questionably useful, the grand jury. Today everyone seems to agree that a minimally competent prosecutor can get a grand jury to "indict a ham sandwich. Not Allen Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 CrIME DELINQ 568, 572-73(1984) e,e.g, David Margolick, Law Professor to Administer Courts in State, N.Y. TIMES, Feb. I 1985, at B2 (quoting Sol Wachtler). Remarkably, even the United States Department of Justice now seems to have endorsed the view that the grand jury serves as little more than a rubber stamp. The endorsement ame as part of the department's defense of new powers granted to the FBI in the wake of September 11 2001. Among those powers is the ability to obtain court orders requiring the production of documents based solely on an application from the FBI stating that"the records concerned are sought for an authorized investigation.. to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. " USA PATRIOT Act of 2001 s 215, 50 U.SC.$ 1861(2004). In defending this provision, the Justice Department has argued that since the orders must be"approved by a federal judge, "they are"more difficult to obtain than ordinary grand-jury subpoenas, which can require the production of the very same records but without prior judicial approval
6 grievances about the behavior of others. In both processes the vigor with which the complaints were pursued and the timing and means by which the disputes were terminated lay in the hands of instigators. Allen Steinberg’s study of private prosecution in Philadelphia before the Civil War makes the linkage clear: During the first half of the nineteenth century . . . an elaborate system of criminal justice typified by private prosecution and dominated by the city’s alderman became entrenched in Philadelphia. . . . [L]aw enforcement became the responsibility of a community’s residents, and the mechanism they used was the one remaining from the eighteenth-century town—the private criminal suit instituted in the office of the neighborhood alderman. . . . Aldermen had no power to implement the final disposition of these cases, but the decision about how far along the criminal justice process a case would go rested primarily with these officials and the private parties. . . .9 “There was little role for a public prosecutor in this system of law enforcement. The state had little direct interest in it, and when the state was involved,” no major friction existed between the citizenry and the alderman. “Although aldermen were officers of the state, their real dependence was on the private citizens who provided their fees.”10 In such a regime, citizens and lawyers alike might perceive relatively little distinction between instituting civil and criminal litigation: in either, the complainant would initiate the case, would pursue it, and would end it when and if he reached a satisfactory settlement with his adversary. So deeply ingrained were these assumptions that even at mid-century people objected to the public prosecutor’s playing any role in prosecution, on the grounds that to do so would be to favor one citizen (the complaining witness, as we now might call her) over another.11 Understanding this situation gives us more insight into an institution that now seems questionably useful, the grand jury. Today everyone seems to agree that a minimally competent prosecutor can get a grand jury to “indict a ham sandwich.”12 Not 9 Allen Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 CRIME & DELINQ. 568, 572-73 (1984). 10 See id. at 575. 11 See id. at 577. 12 See, e.g., David Margolick, Law Professor to Administer Courts in State, N.Y. TIMES, Feb. 1, 1985, at B2 (quoting Sol Wachtler). Remarkably, even the United States Department of Justice now seems to have endorsed the view that the grand jury serves as little more than a rubber stamp. The endorsement came as part of the Department's defense of new powers granted to the FBI in the wake of September 11, 2001. Among those powers is the ability to obtain court orders requiring the production of documents based solely on an application from the FBI stating that "the records concerned are sought for an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." USA PATRIOT Act of 2001 § 215, 50 U.S.C. § 1861 (2004). In defending this provision, the Justice Department has argued that since the orders must be "approved by a federal judge," they are "more difficult to obtain than ordinary grand-jury subpoenas, which can require the production of the very same records but without prior judicial approval
so in the nineteenth century. Then, as in Blackstones day, the grand jury played a substantial role, receiving the"suit of any private prosecutor"and deciding whether it warranted further proceedings he grand jury screened the trivial or the unfounded complaints from those that had substance. Today, the grand jury's role makes little sense because we assume that a state official has already screened cases for merit and substance. In a world of private prosecution, the function was both sensible and essential: in the two decades bracketing the Civil War, Philadelphia grand juries dismissed almost two-thirds of all charges brought before them, a statistic unthinkable y We live in a world so different it is hard to capture the operating assumptions of a century ago. The bureaucratization of criminal justice created executive officers who now do the work of apprehension, investigation, and screening that once took plac principally within the judicial system. Apprehension and investigation are now the jobs of professional law enforcement-a sector that did not exist before the middle of the nineteenth century and that became fully established only in the twentieth century. Screening is the work of law enforcement and professional prosecutors Even criminal defense is now a responsibility largely assumed by the state-albeit ith varying levels of zeal. By 1963, when the Supreme Court ruled that states were constitutionally obligated to give lawyers to indigent felony defendants, most states were Iready doing so: the effect of Gideon was to require the small number of holdouts to meet the by-then common practice. Because the vast majority of criminal defendants are indigent--the figure is over 80% in state felony cases-in most criminal trials today all of the participants other than the defendant, the jury, and some of the witnesses are on the government payroll. The question being debated, moreover, is whether the government should forcibly house and employ, at prison wages, the defendant as well. In a powerful sense the state now"owns" the entire apparatus of criminal investigation and adjudication. The state owns it because the state pays for it. In twenty-first-century Los James Comey, Deputy Attorney General, Letter to the Editor, Rights and the Patriot Act, N.Y. TIMES, Apr 28.2004.atA20 34 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND*300 See Steinberg, supra note 9, at 574. As we discuss later in this essay, the grand jury today does play a role largely unrelated to screening: it allows prosecutors to question witnesses under oath before charges are brought. It therefore serves as a partial substitute for the general unavailability of depositions in criminal cases. But it provides this substitute only for prosecutors, and without the check provided by the presence of opposing counsel during questioning. Once the grand jury is understood as essentially a discovery device, not a screening device, these stark differences from the rules governing depositions the civil side become harder to justify. See notes 94-108 and accompanying text, infr See, e.g., David A Sklansky, The Private Police, 46 UCLA L REV. 1165, 1193-1217(1999) Gideon v. Wainwright, 372 U.S. 335(1963) See CARoLINE WOLF HARLoW, U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: DEFENSE COUNSEL IN CRIMINAL CASES 1(2000); STEVEN K. SMITH CAROl J. DEFRANCEs, U.s DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS SELECTED FINDINGS: INDIGENT DEFENSE 1, 4(1996
7 so in the nineteenth century. Then, as in Blackstone’s day, the grand jury played a substantial role, receiving the “suit of any private prosecutor” and deciding whether it warranted further proceedings.13 The grand jury screened the trivial or the unfounded complaints from those that had substance. Today, the grand jury’s role makes little sense because we assume that a state official has already screened cases for merit and substance. In a world of private prosecution, the function was both sensible and essential: in the two decades bracketing the Civil War, Philadelphia grand juries dismissed almost two-thirds of all charges brought before them, a statistic unthinkable today.14 We live in a world so different it is hard to capture the operating assumptions of a century ago. The bureaucratization of criminal justice created executive officers who now do the work of apprehension, investigation, and screening that once took place principally within the judicial system. Apprehension and investigation are now the jobs of professional law enforcement—a sector that did not exist before the middle of the nineteenth century and that became fully established only in the twentieth century.15 Screening is the work of law enforcement and professional prosecutors. Even criminal defense is now a responsibility largely assumed by the state—albeit with varying levels of zeal. By 1963, when the Supreme Court ruled that states were constitutionally obligated to give lawyers to indigent felony defendants, most states were already doing so: the effect of Gideon was to require the small number of holdouts to meet the by-then common practice.16 Because the vast majority of criminal defendants are indigent—the figure is over 80% in state felony cases17—in most criminal trials today all of the participants other than the defendant, the jury, and some of the witnesses are on the government payroll. The question being debated, moreover, is whether the government should forcibly house and employ, at prison wages, the defendant as well. In a powerful sense the state now “owns” the entire apparatus of criminal investigation and adjudication. The state owns it because the state pays for it. In twenty-first-century Los James Comey, Deputy Attorney General, Letter to the Editor, Rights and the Patriot Act, N.Y. TIMES, Apr. 28, 2004, at A20. 13 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *300. 14 See Steinberg, supra note 9, at 574. As we discuss later in this essay, the grand jury today does play a role largely unrelated to screening: it allows prosecutors to question witnesses under oath before charges are brought. It therefore serves as a partial substitute for the general unavailability of depositions in criminal cases. But it provides this substitute only for prosecutors, and without the check provided by the presence of opposing counsel during questioning. Once the grand jury is understood as essentially a discovery device, not a screening device, these stark differences from the rules governing depositions on the civil side become harder to justify. See notes 94-108 and accompanying text, infra. 15 See, e.g., David A. Sklansky, The Private Police, 46 UCLA L. REV. 1165, 1193-1217 (1999). 16 Gideon v. Wainwright, 372 U.S. 335 (1963). 17 See CAROLINE WOLF HARLOW, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000); STEVEN K. SMITH & CAROL J. DEFRANCES, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SELECTED FINDINGS: INDIGENT DEFENSE 1, 4 (1996)
Angeles, for example, roughly a quarter of the city and county budgets is spent on criminal process-excluding the courts 18 B. Police as a public Imvestment This story of private enterprise and public reaction had one important exception in the nineteenth century, an exception that prepared the way for our existing dual systems The emergence of public police forces helped shape the conditions for modern legal practice--on the civil as well as on the criminal side In a system that depended on evidence of disputed facts, any mechanism that collected these facts and made it easier for the parties to present them in court was important. In the latter nineteenth century English and American societies acquired such a system--professional police--though the chief motivation lay not in the desire to assist courts but in the wish to keep public order in growing cities. This is not the place for a history of policing. But the growth of professional law enforcement explains part of the divergence of the civil and criminal systems Well into the nineteenth century, in both England and America, the apprehension of offenders and the prosecution of criminal cases was a private affair, in which government participated only by offering rewards. Modern police departments, which date from the 1829 creation of the London Metropolitan Police, specialized at first almost entirely in patrol. They replaced the medieval institutions of the constable, the night watch, and the hue and cry, but they left the business of detection to the private sector- initially, to the informal network of informers and"thief-takers" inherited from the 1700s and later, particularly in America, to the private detective industry pioneered by alar Pinkerton o. gs There were natural synergies, though, between patrol work and detection, and by nineteenth century urban police forces on both sides of the Atlantic were developing significant sidelines in investigation. The detective branches of public police artments greatly expanded in the early twentieth century, and they began to absorb the chniques and ambitions of companies like the Pinkerton agency-a process accelerated by the newly-formed Federal Bureau of Investigation, both directly and through the example that it set. Spurred in part by the FBI, American law enforcement at all levels of government gradually came to see its most important mission as controlling crime, not CITY OF LOS ANGELES 2002-03 BUDGET 16 (25% for"crime control"-excluding prosecution public protection"including offices of district attorney, public defender, sheriff, and coroner, as wey or which is a county responsibility); COUNTY OF LOS ANGELES ANNUAL REPORT 2002-03, at 16-25(20%f some firefighting services) See, e.g., Sklansky, supra note 15, at 1195-1217. Charles Dickens gave us a memorable emnant of this world in Bleak House, where one of the plot lines revolves around the work of a privately etained detective whose devotion to truth-seeking brings down the wife of the aristocrat who retained him 8
8 Angeles, for example, roughly a quarter of the city and county budgets is spent on criminal process—excluding the courts. 18 B. Police as a Public Investment This story of private enterprise and public reaction had one important exception in the nineteenth century, an exception that prepared the way for our existing dual systems. The emergence of public police forces helped shape the conditions for modern legal practice—on the civil as well as on the criminal side. In a system that depended on evidence of disputed facts, any mechanism that collected these facts and made it easier for the parties to present them in court was important. In the latter nineteenth century English and American societies acquired such a system—professional police—though the chief motivation lay not in the desire to assist courts but in the wish to keep public order in growing cities. This is not the place for a history of policing. But the growth of professional law enforcement explains part of the divergence of the civil and criminal systems. Well into the nineteenth century, in both England and America, the apprehension of offenders and the prosecution of criminal cases was a private affair, in which government participated only by offering rewards. Modern police departments, which date from the 1829 creation of the London Metropolitan Police, specialized at first almost entirely in patrol. They replaced the medieval institutions of the constable, the night watch, and the hue and cry, but they left the business of detection to the private sector— initially, to the informal network of informers and "thief-takers" inherited from the 1700s, and later, particularly in America, to the private detective industry pioneered by Alan Pinkerton.19 There were natural synergies, though, between patrol work and detection, and by the late nineteenth century urban police forces on both sides of the Atlantic were developing significant sidelines in investigation. The detective branches of public police departments greatly expanded in the early twentieth century, and they began to absorb the techniques and ambitions of companies like the Pinkerton agency—a process accelerated by the newly-formed Federal Bureau of Investigation, both directly and through the example that it set. Spurred in part by the FBI, American law enforcement at all levels of government gradually came to see its most important mission as controlling crime, not 18 CITY OF LOS ANGELES 2002-03 BUDGET 16 (25% for "crime control"—excluding prosecution, which is a county responsibility); COUNTY OF LOS ANGELES ANNUAL REPORT 2002-03, at 16-25 (20% for "public protection"—including offices of district attorney, public defender, sheriff, and coroner, as well as some firefighting services). 19 See, e.g., Sklansky, supra note 15, at 1195-1217. Charles Dickens gave us a memorable remnant of this world in Bleak House, where one of the plot lines revolves around the work of a privately retained detective, whose devotion to truth-seeking brings down the wife of the aristocrat who retained him
simply maintaining order. And controlling crime meant not just catching criminals, bi convicting them in court By the 1920s and 1930S, the police still spent most of their time keeping order Even when that task required an arrest(which it usually did not), and when the arrest led to a court proceeding (which was also not the norm), little evidence gathering was required: the officer's testimony would usually suffice. But in those cases that did require investigation and gathering of evidence, the police were available to supply and supplement the efforts of professional prosecutors. Moreover, whether they operated with or without warrants, the police offered an American version of compelled evidence gathering: they could search records, interrogate unwilling witnesses, collect physical evidence, and compel access to real and personal property. The fruits of these efforts fed the prosecutorial arm, which could then present the evidence thus gathered in court, in support of the charges filed. If we add to this system the important additional ingredients of constitutional constraints on evidence-gathering and public support of the defense bar, it is still the system we use today C. Law Reform and the Parting of the Ways If the nineteenth century marked a period of innovation in criminal process the twentieth century saw enormous change on the civil side. That change affected both formal procedural rules and the organization of the bar. Together, they reshaped civil practice over the course of a century, making it look almost unrecognizable either from the perspective of the civil bar at the start of the twentieth century or from the vantage point of the criminal practitioner at the start of the twenty-first While criminal process was becoming a branch of government law, civil practice was heading in the opposite direction, toward entrepreneurship, initiative, and an understanding of law as a business. Robert gordon has told the story of the early growth of the law firm, a practice development paralleling the growth of these firms'business clients. As interesting a story, at the other end of the private- bar practice spectrum, has been the growth of the plaintiffs' firm. Long a despised poor relation of the Wall Street practice, the plaintiffs' firm has emerged as a successful business in the years following the Second World War. Taking advantage both of the contingent fee and of deregulation of advertising for professional services, this part of the bar created small See, e.g., Sklansky, supra note 14, at 1216-17 Robert w. Gordon, The ldeal and the Actual in the Lan: Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51, 59-62 (Gerard w. Gawalt ed, 1984) See JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 40-50(1976): JEROME E. CARLIN, LAWYERS ON THEIR OWN: A STUDY OF INDIVIDUAL PRACTITIONERS IN CHICAGO (1962) Stephen C. Yeazell, Refinancing Civil Litigation, 51 DEPAUL L. REV. 183(2001) U.S.o a See bates v State Bar of Arizona, 433 U.S. 557(1980), Shapero v. Kentucky Bar Assoc,486
9 simply maintaining order. And controlling crime meant not just catching criminals, but convicting them in court.20 By the 1920s and 1930s, the police still spent most of their time keeping order. Even when that task required an arrest (which it usually did not), and when the arrest led to a court proceeding (which was also not the norm), little evidence gathering was required: the officer’s testimony would usually suffice. But in those cases that did require investigation and gathering of evidence, the police were available to supply and supplement the efforts of professional prosecutors. Moreover, whether they operated with or without warrants, the police offered an American version of compelled evidence gathering: they could search records, interrogate unwilling witnesses, collect physical evidence, and compel access to real and personal property. The fruits of these efforts fed the prosecutorial arm, which could then present the evidence thus gathered in court, in support of the charges filed. If we add to this system the important additional ingredients of constitutional constraints on evidence-gathering and public support of the defense bar, it is still the system we use today. C. Law Reform and the Parting of the Ways If the nineteenth century marked a period of innovation in criminal process, the twentieth century saw enormous change on the civil side. That change affected both formal procedural rules and the organization of the bar. Together, they reshaped civil practice over the course of a century, making it look almost unrecognizable either from the perspective of the civil bar at the start of the twentieth century or from the vantage point of the criminal practitioner at the start of the twenty-first. While criminal process was becoming a branch of government law, civil practice was heading in the opposite direction, toward entrepreneurship, initiative, and an understanding of law as a business. Robert Gordon has told the story of the early growth of the law firm, a practice development paralleling the growth of these firms’ business clients.21 As interesting a story, at the other end of the private-bar practice spectrum, has been the growth of the “plaintiffs’ firm.” Long a despised poor relation of the Wall Street practice,22 the plaintiffs’ firm has emerged as a successful business in the years following the Second World War.23 Taking advantage both of the contingent fee and of deregulation of advertising for professional services,24 this part of the bar created small 20 See, e.g., Sklansky, supra note 14, at 1216-17. 21 Robert W. Gordon, The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51, 59-62 (Gerard W. Gawalt ed., 1984). 22 See JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 40-50 (1976); JEROME E. CARLIN, LAWYERS ON THEIR OWN: A STUDY OF INDIVIDUAL PRACTITIONERS IN CHICAGO (1962). 23 Stephen C. Yeazell, Refinancing Civil Litigation, 51 DEPAUL L. REV. 183 (2001). 24 See Bates v. State Bar of Arizona, 433 U.S. 557 (1980); Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988)
