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19 June 2013

Out of (Symbolic Interactionist) Order

A random thought on criminal justice today. In the United States, our trial system is one that is based on evidence and witness testimony. It is also adversarial. What this means in practice is that we end up with two sides who present their own evidence and witnesses and attempt to challenge the other side's evidence and witnesses. The intention of the system is that the evidence and testimony of one side stands up to scrutiny, while the other does not, and the truth becomes obvious to a judge and/or jury who decide the case. Good attorneys, however, (and in particular good defense attorneys) attack not just the opposition's evidence and witnesses but also the base epistemological assumptions the trial system makes about evidence and testimony. To abuse an old cliche, they put the system on trial. It's one thing to question a person's recollection of events; it's another to question people's general ability to remember. It's one thing to question a lab tech's proper handling of DNA; it's another to question the reliability of DNA testing. Essentially, each trial whittles away just a little bit at what courts do. This is a smart strategy in the short term and for individual clients, but in doing so, it fundamentally erodes the credibility of a social institution at the expense of social benefits. There are certainly a lot of problems with the trial system as currently conceived, but I'll leave for another day the discussion of how we might repair or replace it.

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