Trial judges decide cases that come in front of them. They’re sitting in the room, they see the witnesses, hear each side, enforce the rules to ensure a fair trial. They can hear sarcasm, distinguish between when a witness is joking, or being snide, or disrespectful, etc. They get the benefit of all of the non-verbal parts of communication, physical cues, gestures, intonation. As an aside, in all my years trying cases and reading appellate and trial records, researching, I never once came across a cause of error where a defendant claimed that the jury or judge had simply misunderstood him or a witness. In other words, from a claim of courtroom miscommunication. The closest I’ve ever seen is prosecutors trying to claim that some part of a police interview/interrogation was tantamount to an admission or confession. I’ve seen prosecutors and defense attorneys (myself, included) try to twist what was meant by a criminal defendant’s statement to mean something it really didn’t. i.e. Arguing that “no” was really “yes” or vice versa, or saying this thing indicated he had some knowledge (or lack) of a crucial fact, etc. I’ve never run across an appellant saying that was what happened. Call this the “Juries Generally Don’t Misunderstand what the Evidence Means” principle. Or, a corollary, the “Everyone Sitting in that room Speaks the Language of our Culture and Knows what the Fuck was Actually Said” presumption.
Okay, so why do we have appellate courts? Because sometimes trial judges get it wrong. “Wrong” in what sense, you might ask? And here’s where the values start and can be missed if one isn’t paying attention: Because we don’t want innocent people getting screwed.
Thats’s the principle. Another word for it is justice. That’s the value.
People who do shitty things shouldn’t get away with it. You should be caught, publicly castigated for being a lawbreaking turd, and made to pay the penalties associated with the violation [1], whether the foul be criminal or civil.
FN 1 – Huge caveat/moral carveout here for unjust laws. I’m not addressing people who will stand against a law as immoral on conscience. Those people aren’t turds. They’re either misguided, but honorable; or heroes and martyrs, in retrospect.
If you broke someone else’s stuff or harmed them in some way, you make it up to them. Compensate them for that loss. If the foul was of another person’s property, we generally make you pay money damages and not criminal penalties (up to a point) and restore the aggrieved party to where they were before. In severe enough cases, or to protect important values – like, you burn down someone’s home, even while they’re not there, while you technically haven’t harmed them physically – we’re calling that a crime, (you arsonist prick). If it’s in the winter in Minnesota, for example, then you’ve orphaned a family and made the rest of us have to take them in or they’ll likely die. That’s a serious crime. But generally, the dividing line is between hurting a person’s property and hurting them physically. If you put your hands on other people, we throw you in jail. There you need to learn how to play nice with others before we’re going to let you out with the rest of us.[2] Harm someone seriously enough and you might not be coming out.
FN 2 – I don’t have space for my rant on what’ s wrong with the prison system. I had it here as a footnote but it was almost a page long, so it gets separate treatment.
Okay, given that those are the stakes, we want a level of review. How much review and of what exactly? Well, we don’t want the innocent getting screwed and stewing in jail. It’s worth even backing up and asking why that matters. So why don’t we tolerate some “error rate” or “slop” in the system? Why don’t we simply accept that some amount of innocent people will go to jail and that’s just “the way it is?” Because there is no system of human interaction with a long enough timeline – i.e. a society of some kind – that can last without an assurance that it protects the innocent and punishes the guilty. That seems a kind of callow answer, though, and I should have answered morally: Because if there are rules by which people must conduct themselves to interact, to commerce with one another, and to do so without physical coercion by one over the other, to do so in a manner that respects ideals like individual liberty, freedom, justice, then the rules have to be consistently applied, and applied to all, and those who violate the rules don’t get to be treated the same as those who follow the rules. The guilty and innocent cannot, ever, in any society that wants to be called just, treated the same, nor can the odds of being treated the same be left to random chance. “Hmmmm… I wonder if when I go out the door today I shall be arrested and sent away for life just by chance…” Of course, we all have to agree on “the rules” – that’s called both democracy in the specific culture, and more generally – both for the society and how justice will be meted out.
So, we don’t want to punish the innocent. The notion is so straight-forward it begs the question of whether any society that wished to be judged just could ever openly, knowingly allow the innocent to be harmed or punished without some form of redress against his/her oppressors. (Yes, this makes us sound like moralizing pricks to the rest of the world. Good. We need to continue to strive to be worthy of that burden. What we as human beings are trying to do is be better. [3])
FN 3 – We’ve won the evolutionary race. We’ve conquered our environment – or enough of it to either destroy the whole thing many times over or leave the planet in a pinch. We can continue the human race out into the galaxy if we absolutely have to. It would be dicey; maybe we wouldn’t make it and we’d snuff out on Mars or the Moon or in space, but we’ve got a chance. As against any other predator of which we’re aware, we win. No elephant stampedes or packs of rabid wild dogs or pride of angry lions are going to end humanity’s existence.
In the meantime, how do we decide what appellate judges will or won’t look at and to what extent? Answering that question becomes much easier when considering what I’ve noted above. If it touches upon a matter of a fundamental right (we call it a Constitutional one), appellate judges are going to look “closely” to make sure the local guy sitting there (a) applied the correct law to the case, and (b) the trial was conducted fairly and in such a way that we can feel confident that in a contested matter, the jury/factfinder “got it right.” Of course, this inevitably leads us to the death penalty question.
I can’t say I have much new to add on the topic. It’s been debated for a long, long time – well before the founding of the Republic – and I used to be ardently in favor; now? Not so much. I suppose this will sound like a punt, but I resolve it as a matter of federalism. I think some states may feel perfectly comfortable that (a) it’s necessary because some crimes are so heinous, you’re not coming back from that, nor getting reformed, and “we’re not keeping your sorry ass around,” and (b) “we’re that confident in our system that we don’t execute the innocent, ever.” I don’t think it should be a “national” decision. I’m comfortable with – and even might be said to “like” – the idea that you can choose a state that has one view or the other because I think it’s a tough, tough call. I don’t claim to be so omniscient that I think I ought to be able to dictate one or the other for 300 million people at once; too many people suffer that fatal conceit. I’m okay with letting 50 separate experiments try to sort it out.