I don’t like the popular image of Lady Justice (the woman with the blindfold and scale who shows up on courthouse steps and similar places.) My objection does not relate to the cut of her robe, which can be troubling to puritanical Attorneys General, (I’m always glad to see an annoyed Attorney General) but because her blindfold sends a rotten message about how the American justice system works.
‘Blind justice’ is an evocative image about the American justice system. I had a teacher explain to me in high school that justice is blind because justice should not consider the ethnicity, age, gender, or social class of the people before it. That is a noble ideal, but it would be foolish in a case about ethnic discrimination in the workplace or hate-crime, which require evidence about ethnicity or religion. And, in light of a growing body of evidence that cross-racial eyewitness identification is unreliable, a just trial might have to take ethnicity into account sometimes.
My teacher was wrong about the meaning of blind justice, but he was close. The real reason is that some information is excluded from all legal decisions, especially from jury trials. Appellate courts won’t consider new evidence, even on issues that no reasonable person could dispute (such as what county a city is in or how a radar gun works). In every trial I have ever had, there was evidence excluded from the trial that the jury might have liked to consider and that one party wanted the jury to know. Sometimes perfectly relevant evidence is excluded for reasons unrelated to guilt or innocence, as when the product of an illegal police search is excluded from a criminal trial. Sometimes relevant evidence is excluded because it cannot be tested or attacked in accordance with the rules of evidence, such as hearsay. Hearsay is an out-of-court statement offered in evidence at trial, but it is usually inadmissible because the person making the statement cannot be questioned by the other side to find flaws in the statement. That questioning, called cross-examination, is an important way to make sure that a witness’s testimony is reliable. Finally, some relevant evidence is excluded because a jury is likely to give it too much weight or use it to prove the wrong fact: evidence about a criminal defendant’s prior crimes might lead a jury to convict even if the evidence of this crime is poor, and pseudoscience might be believed even though no reputable scientist would endorse the underlying theory.
The exclusion of evidence is a popular topic in the media. When a supposed criminal goes free because of police errors, it always sounds like an awful injustice, and we want Lady Justice to take off her blindfold and look at all the facts. In any individual case, I suppose that’s true. But the American common-law system is not really about individual cases; most American law comes from the written opinions of judges which become part of the law governing future cases. Police do a mediocre job following the rules about illegal searches and seizures, even knowing that illegally-obtained evidence will be excluded from trial. I’m sure it would be much worse if there were no such consequence. The increased police intrusion would not be directed just at genuine criminals, or, almost as bad, my clients. It would also be directed at me, and at you.
Further, as a society we have decided that, as part of having trials by jury, there are some facts that a jury will not use fairly. A criminal defendant has a constitutional right to confront and cross-examine witnesses, so witnesses usually have to appear as live people subject to questioning in front of the jury. Jurors are rarely scientists, and so evidence that will appear to be persuasive scientific evidence is admitted only if it is based on valid scientific principles. Any of those rules is debatable, of course, and any can look unfair in an individual case, but none of them are arbitrary or incomprehensible.
And, most importantly, American justice is about the equal application of the law. Any decision-making system will have rules of some sort, and those rules need to be followed in every case, not just some cases. The exclusionary rule, and the evidence code, and the other rules that dictate what evidence is admissible in trial are the law we have, and fair trials follow the law. That means that we’ll keep some things from Lady Justice, but it also means that she uses the same rules for everyone. How could we have a just system without that?
