Asymmetry, Fairness, & Criminal Trials

Rules of criminal procedure, like all rules of legal procedure, exist to advance the goals of the corresponding substantive law. To ask whether American criminal justice – pursued through the operation of these procedural rules – is fair is to engage in a debate that has persisted since the Founding. More recently, the early twentieth century witnessed a revolution against the procedural formalism of preceding decades. Whether justified or not, the perception flourished that the legal system’s dogmatic adherence to process allowed many criminals to escape punishment, and endangered society. The public statements of the era’s most prominent jurists were marked by a common theme: the rules of criminal procedure were unjustifiably skewed in favor of the defendant.