Kafka Goes to Court

Does anyone ever get a fair trial in court? Though U.S. trials are aimed at discovering the truth and dispensing justice, the parties to the trials are really seeking triumph and justification. The very phrase "adversary system" denotes a bitter duel rather than a disinterested inquiry. Worse, the duelers tend to indulge in trickery, and fight with "make-believe" evidence that often bears scant relation to the facts at issue.

So charges Manhattan Lawyer James Marshall in Law and Psychology in Conflict (Bobbs-Merrill; $5.95). A leading civil rights lawyer in the 1930s, Marshall, 70, is a well-known political scientist. In his sobering new book, he finds the U.S. trial system guilty of woeful ignorance of elementary psychology. Not only is truth highly elusive in "a field dominated by hostility," he says, but the law wrongly assumes that witnesses can "see accurately, hear accurately and recall accurately." Man is so subjective, Marshall argues, that the law's naive reliance on his "factual" testimony is almost laughable.

Team Trauma. As an experienced trial lawyer, Marshall is unsurprised that two witnesses rarely report the same set of facts about an auto accident, "an exceedingly complex and sudden occurrence taking less than ten seconds." For one thing, witnesses overestimate time and distance according to how endangered they feel. They disagree on how fast the same car was going by as much as 25% . Perception also varies with physical condition: menstruating women, for example, react slowly, while older persons have less facility for perception of speed and depth. Interpretive judgments may vary with each individual's "age, race, nationality, sex, profession, religion--all his lifetime experience." Most people hear only what they want to hear. To an insecure professor, for example, the overheard phrase "ten-year plan" may well sound like "tenure plan."

After forgetting most of what he sees or hears "within a matter of hours or days," says Marshall, a witness typically appears at a trial months or years later, retaining only his most emotional memories. Various studies suggest that crime details are best recollected by "punitive" people, notably policemen who yearn for convictions. Conversely, a forgetful witness is often highly coachable and potentially perjurious because he fears to let the side down. "These are adversary proceedings," says Marshall, "and if his side wins, the witness shares in a form of social reward that reinforces his 'self-constancy.' "

Marshall even finds fault with the rules of direct and cross examination, which prevent a witness from telling any more than lawyers want him to tell. Spontaneous narrative would be far more revealing and probably more accurate. As it stands, says Marshall, "testimony is constantly dissected and contradicted and reshaped toward partisan ends. That is the essence of a trial; it is not a scientific or philosophic quest for some absolute truth, but a bitter proceeding in which evidence is cut into small pieces, distorted, analyzed, challenged by the opposition, and reconstructed imperfectly in summation."

Collective Error. As a result, confused jurors "respond to witnesses in the same manner as witnesses do to the incident itself. Each juror is himself a witness to each witness, perceiving and interpreting the testimony through the lenses he has ground out of his own experience and expectations." Prejudice often takes over. For example, "cases involving deviants and outgroups afford the opportunity for projection of repressed instincts and hostility in a manner which is safe."

In short, says Marshall, jurors often wind up weighing "facts" in terms of emotions, and they then huddle in an uncomfortable jury room where "the mere existence of dissent rankles, and the desire is for uniformity." Indeed, various studies show that a group of twelve people charged with reaching a rapid verdict creates almost unbearable pressure for consensus. Just as "no witness wants to make a fool of himself" by contradicting his side, so a juror can rarely withstand his instinctive need to conform.

Not that Marshall wants to abolish juries. Experience hardly suggests that judges alone should have sole responsibility for denying liberty and life. Instead, Marshall urges lawyers to begin joint research with social scientists to modernize court procedures--or invent new legal institutions "better suited to reality." Whatever the solutions, he says, one thing is clear: "It is a Kafkaesque world in which people testify to what they neither saw nor heard," in which victory is "an end in itself," and life, liberty, property and reputation are "staked on bets or guesses as to what really happened."

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