While I am most interested in the American criminal justice system, I was inspired by Professor Laurence Tribe’s course, “Thinking About the Constitution,” to take this summer to understand how other countries prosecute wrongdoers. Particularly powerful was Professor Tribe’s concept of “global arguments” to counter slippery slope arguments about laws. For instance, if there were fear of an American law leading us towards tyranny, perhaps other stable countries with similar laws could offer a case study of how to think about the law in question.
So I started considering countries in which to study. As our system originally came from English law, I could think of no better system to try to learn more about. I secured a position as a research assistant at a British law firm, and from my position, witnessed great disparity in the British and American methods of handling low versus high profile cases.
With each legal system comes a new legal hierarchy. My criminal barrister’s firm, Furnival Chambers, saw the gamut of criminal prosecution and defense cases. I worked as a “mini-pupil,” the tile given to undergraduates working at the firm. Pupils were there to learn, but were also allowed to assist in case research as the summer went on. Above us were pupils, who had graduated college, and spend a year working in hopes of getting hired by the firm. Above them were barristers, who would actually argue cases before Courts. Newer barristers would handle smaller cases, while more senior barristers would handle very serious cases.
Each day, a mini-pupil would be assigned to a barrister. We would get a rundown of the day’s cases, be told what we could do to help (which as time went on became greater and greater), and would go see the cases play out (everything from witness interviewing to negotiation between barristers to actual trials). Each day, therefore, would be very different. One day I would be working with a new barrister on a small marijuana possession case that took 10 minutes to dispose of in a small village court; the next day I’d be working with a senior barrister on a high-level murder trial that had been going on for weeks at the Old Bailey, England’s oldest and most famous court. During all these cases, I was thinking about how what Comparing American and British systems, I found that I significantly preferred the English system’s approach to high level crimes and was appalled by their approach to low level crimes based on how defendant’s rights were approached.
England’s issue with low-level crimes is that the do not treat them seriously, and therefore do not take defendant’s rights seriously. This theme became evident before my work had even started. On my first night in England, I met up with some friends for dinner and we ate by a canal. Suddenly, two police officers showed up. They told us they had heard about drug use near the canal and were going to search us all. I objected, pointing out that we had done nothing wrong, and that there wasn’t any probable cause. They responded that they were allowed to search anyone in the area if they chose.
After unsuccessfully searching us for awhile, they left, but it was surprising to see the casualness that they approached the situation with. Similar “stop and frisk” laws in the United States are not as commonplace (outside of New York City), and at least are questioned much more. When I spoke to some of the barristers about this incident, none of them seemed to even really question that this was how the rules were, and completely disregarded the concepts of personal privacy that we have in America.
I saw the same disregard for rights in a low-scale assault case I was assigned to with a very junior barrister. The case involved a juvenile and there was not a significant punishment associated with it, so it was heard in Magistrate’s Court (the lowest court). I learned that Magistrate’s Court is not taken seriously, so much so that trials decided on by volunteers from the community, rather than jurors or judges. This in theory may make things more convenient, but it quickly became apparent that these were far from objective decision-makers. The volunteers were primarily a self-selecting group who were interested in punishing defendants. In the assault case, they were uninterested in hearing the facts, rushed witness testimony so that “Court would finish in time for dinner,” and delivered a nonsensical opinion that blatantly disregarded a great deal of the evidence. Though the case was small scale, and there was not a particularly serious punishment associated with it, the juvenile my firm was defending was found guilty of a crime without a real preponderance of the evidence. I was very upset by this. For the sake of convenience, it appeared that the English system did not care about fairness for defendants, in a way notably different than the American system, which at least tries to ensure some basic fairness in the lower courts.
It was interesting to see that the opposite was true in the Crown Courts, where higher scale crimes were heard by judges and juries (and where judges, barristers, and mini-pupils with permission wore the traditional robes and grey wigs). The Courts were concerned, to a near obsessive point, with defendant’s rights. Plea bargaining was banned or limited in many ways to prevent prosecutorial abuse. They also had a punishment system based almost entirely on criminal intent.
The judges worked very carefully to ensure that people were not disproportionately sentenced for things beyond their control. One murder trial I was assigned to made a point of distinguishing intentional murder from recklessness in the commission of a robbery. The sentencing was very carefully done to factor in the degree of intent. I was very impressed. This law stands in stark contrast to the American “felony murder” rule that claimed solely looks at the result of a defendant’s action, rather than its intent. After the case’s conclusion, I discussed the felony murder rule in the US with the barrister and he was stunned by its disregard of one’s intentions. We agreed that English system was more sophisticated in this respect.
If the American justice system applied England’s level of consideration of intent to its punishment of large scale crimes, or if England aimed to ensure a consistent level of fairness in its lower courts, as America does, both systems would be significantly more just. If I learned nothing else this summer, I learned that it is indeed very important to look globally for ideas on improving justice, and that both these two countries as well as others have a lot that they can learn from one another.
