Reviews
| Date | 01 March 1997 |
| Published date | 01 March 1997 |
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00082 |
REVIEWS
Franklin Strier,Reconstructing Justice: An Agenda for Trial Reform, Chicago:
University of Chicago Press, 1996, xiii + 314 pp, pb £12.75.
Adversary excesses and how to curb them — this is the central theme of Franklin
Strier’s Reconstructing Justice, in which the author casts a critical eye over the
American criminal and civil trial process, and offers a multifaceted blueprint for
reform. From a United Kingdom perspective, Strier’s focus on trial procedures is
instructive. The public profile of the American trial is markedly higher than its
counterpart on this side of the Atlantic. One reason for this is the obvious point that
televised proceedings have a greater capacity to become etched in the public
consciousness. More fundamentally, however, it is the dramatic and lawyer-
dominated quality of the American trial which is depicted by detractors as the key
source of the system’s ills. Conversely, for the adherent to adversarial values, the
trial is held up as the apotheosis of fair and accurate dispute resolution mechanisms.
Strier, needless to say, is a detractor. If ever there were an ideal starting point from
which to launch a critique of the American trial process, then surely it was supplied
by the trial of O.J. Simpson. This is not, however, another ‘O.J. book.’ At the time of
the book’s original publication in 1994, the most widely publicised trial in American
history had not commenced. This 1996 edition, however, is accompanied by an O.J.
preface which, although enhancing the book’s contemporary appeal, in truth adds
little of moment either to the post-Simpson debate or to the main body of Strier’s
critique. The contention that the critical factor which makes the Simpson trial stand
out from the general run of criminal trials is ‘money, not race’ (p ix), is hardly a
novel or surprising one. The discussion of the case does, however, set the tone for
the remainder of the book: trial outcomes are over-dependent on attorneys’ relative
skills and the way forward is through ‘a reallocation of power in the American
courtroom, away from the attorneys and to the judge and jury’ (p x).
Despite the somewhat unflattering picture which the book paints of the
American trial lawyer, Strier is at pains to stress that his is primarily a critique of
process rather than of personnel. The targets of his attack are familiar ones. At the
root of the problem is the theory of the adversarial trial, with its emphasis on party
control and the concomitant assumption that conflict provides the optimum conduit
of truth. On a specific level, Strier decries the inequality in skills among trial
lawyers and the frequent mismatch of resources among litigants. The habitual
sources of disenchantment with jury trial are revisited at considerable length: the
inherent limitations on juries’ fact-finding capacity; the procedural shackles
imposed on jurors which prevent them from questioning witnesses and, in some
states, even from taking notes; cognitive difficulties in the comprehension and
application of judicial instructions; the vagaries of jury nullification; and the
manipulation of selection procedures to obtain favourable jurors, with the growing
reliance on jury selection ‘experts’ by those of sufficient means to afford them.
Prime sources also of the author’s disenchantment are the passive roles assigned to
the judge in the adversarial trial and the ethical primacy of allegiance owed to the
client by the trial lawyer over any independent commitment to truth-seeking.
Some of the specific points of controversy which Strier addresses may be
relatively recent in origin — the growth of the scientific juror selection ‘industry’
The Modern Law Review Limited 1997 (MLR 60:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 305
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