VIRTUAL JUSTICE: THE FLAWED PROSECUTION OF CRIME IN AMERICA by H. Richard Uviller. New Haven: Yale University Press, 1996. 318 pp.

Reviewed by Cassia C. Spohn, Department of Criminal Justice, University of Nebraska at Omaha
 

In this provocative and often-entertaining book, H. Richard Uviller, a professor at Columbia University School of Law, asserts that what passes for justice in the United States is in reality what he calls "virtual justice." Virtual justice does not result from the duplicitous attempts of criminal justice officials to imitate or simulate justice or from the incompetence of police officers, lawyers, judges, and juries. Rather, the failures of the criminal justice system can be attributed to a systemically flawed process "operated in good faith by men and women seriously trying to produce true justice." Although highly critical of recent Supreme Court decisions interpreting the Fourth, Fifth, and Sixth Amendments to the Constitution and of laws and policies that make it unnecessarily difficult to separate the guilty from the innocent, Uviller does not believe that the systemic flaws of the criminal justice system stem from either the U.S. Constitution or criminal law themselves. Instead, they result generally from what he refers to as "the adversary circus" (p. 310) and specifically from "the contentious jury system" (p. 311).

Using fictional scenarios to illustrate the genuine dilemmas facing criminal justice officials in their quest for justice, Uviller takes the reader on a virtual tour of the criminal justice system. He begins with a lengthy discussion of legal and constitutional constraints on police investigation of a crime and interrogation of a suspect. He discusses the right to counsel, explores the ethical dilemmas confronting both defense attorneys and prosecutors, and outlines the positive and negative consequences of plea bargaining. Moving on to the trial itself, Uviller discusses the problems inherent in the jury selection process, legal restrictions on the introduction of character evidence, the difficulties jurors face in attempting to evaluate conflicting testimony, the uses and abuses of the power of jury nullification, and the dilemmas facing judges as they rule on motions and determine the appropriate sentence. Uviller concludes his "virtual tour" with a reiteration of the reasons why "the American system of criminal justice fails to deliver true justice" (p. 309).

The first six chapters of VIRTUAL JUSTICE explore a number of issues related to the investigation of crimes and interrogation of suspects. Uviller focuses much of his attention on the law of search and seizure, which he variously characterizes as ambiguous, incoherent, and inconsistent, and on the exclusionary rule, which he asserts is an issue that "calls into question the basic tenets of the American judicial process, the ideals of constitutional democracy, and the capacity of the legal process to deal with the plague of crime" (p. 63). The author discusses in detail issues such as the warrantless search for evidence at the scene of a crime, the use of deadly force to seize a suspect, restrictions on police interrogation of suspects, and the use of systematic roadblocks or checkpoints to "get the guns off the streets

As Uviller wrestles with these controversial issues, he exposes a number of what he terms "legal anomalies"--court decisions and policies that make it difficult, if not impossible, for law enforcement officials to do lawfully what they must do (search for evidence, interrogate suspects, question witnesses). He describes, for example, the problems inherent in the Supreme Court=s rulings regarding the warrantless search of a crime scene. According to decisions handed down in 1978 and 1984, the police can conduct a carefully circumscribed search of the private residence where a murder (or other serious crime) took place without a warrant, but must obtain a search warrant prior to conducting a more thorough search. The conundrum, according to Uviller, is this: in order to obtain a search warrant, the police officer must describe, in advance and with some degree of specificity, what he is looking for and where he wants to look, but the officer has no way of predicting the types of evidence that might be found at the scene, and thus no way to legally obtain a warrant authorizing the search. Uviller states that rather than search for a solution to this riddle, criminal justice officials simply go about business as usual. The police conduct a thorough crime scene search without a warrant and either the defense attorney fails to challenge the product of the search or the judge rejects the defense motion to suppress the evidence. In essence, according to Uviller, "all sides have tacitly agreed in these cases to accept, even to prefer, virtual justice" (p. 27).

Uviller offers other examples of these "legal holes" that lead to virtual justice. He cites the fact that the police cannot make an arrest without probable cause to believe that the suspect committed the crime, but often cannot obtain the evidence to show probable cause until the suspect has been arrested. The police, for example, may need a positive identification of the suspect to make an arrest, but cannot legally require the suspect to participate in a lineup prior to his arrest. He also discusses the incoherence of recent Supreme Court rulings concerning the Fourth Amendment's search and seizure provisions, noting that an arrest warrant which authorizes the police to search for and seize a suspect does not give them the right to seize evidence recovered from the suspect=s home during their fruitless search for her. Uviller argues that in these situations, as in the one discussed previously, the police "improvise and hope the court will not look too closely" (p. 52).

The focus of the last eight chapters of the book is the court system and the actors within the system--prosecutors, defense attorneys, jurors, and judges. Uviller discusses the defendant's right to a competent attorney , the difficulties inherent in proving incompetence, and the remedies available to trial and appellate judges who suspect incompetence. He also explores the ethical dilemmas that confront both defense attorneys and prosecutors; he criticizes the former for perverting justice by lying for their clients, the latter for overzealous use of investigatory techniques such as surveillance and espionage. Both are taken to task for using the adversary process to impede the search for truth by leading their own witnesses, unfairly cross-examining their opponent=s witnesses, distorting or misrepresenting the significance of evidence, and using "experts" to bolster their case or to impeach the credibility of witnesses called by the other side.

Somewhat surprisingly, Uviller is not particularly critical of plea bargaining, which he admits is an example of virtual justice but which he asserts "work better than the authentic model" (p. 199). He correctly attributes the pervasiveness of the practice to a combination of overcrowded court dockets, participants' attempts to reduce uncertainty, and defendants' beliefs that waiving the right to trial and pleading guilty will result in a more lenient sentence. Although admitting that he is concerned about the "penalty" or "cost" paid by the defendant who insists on a trial, by the judge's abdication of her responsibility for sentencing, and by the possibility that the innocent are persuaded to plead guilty, Uviller nonetheless concludes that "there is considerable value in the plea bargaining process wholly apart from its docket-clearing utility" (p. 196).

Uviller's support for, or at least acceptance of, plea bargaining stands in stark contrast to his criticism of the jury system. With respect to the jury selection process, for example, he argues that the peremptory challenge, which he characterizes as "one of the monumental paradoxes in the American criminal justice process" (p. 208), derails the search for a jury that represents a random cross-section of the population. More to the point, he charges that the peremptory challenge system results in racially biased juries, and argues that the Supreme Court's ruling in Baston v. Kentucky did little, if anything, to correct the problem. Uviller also questions the competence of jurors to evaluate accurately the conflicting testimony produced by this adversarial process, asserting that jurors are no better equipped for that task than anyone else" (p. 310).

Much of the last half of the book can be read as an indictment of the adversarial process, and in particular of the adversarial trial process, which Uviller describes as "a structured process for the determination of the credibility of strangers, many of whom will, for one reason or another, try to deceive those who rely upon their word" (p. 242). Uviller questions one of the underlying assumptions of the process--that is, that most jury verdicts reflect the facts, the truth. He is considerably less sanguine than others about the fact-finding ability of the jury. He notes that jurors have the power of nullification and are asked to decide cases based primarily on their own common sense notions of plausibility and credibility, on their own "hunches" and "feelings" about what happened. This, he asserts, is not fact-finding; it is virtual justice.

VIRTUAL JUSTICE will appeal to a wide audience. Uviller engages the reader with a lively and often-witty writing style, a concise but comprehensive discussion of the underlying issues, and a thoughtful examination of possible remedies for the problems he identifies. The scenarios sprinkled throughout the book, while fictional, will ring true with criminal justice practitioners and scholars; they describe the real-world dilemmas facing police officers, lawyers, judges and jurors responsible for the investigation of crimes and the adjudication of guilt. Those who prefer a more traditional academic format may be uncomfortable with Uviller=s approach, which eschews footnotes and legal citations. Asserting that he "does not mean the book to be a scholarly work" (p. xvi), Uviller nonetheless draws heavily from empirical research by social scientists and from the work of legal theorists and philosophers. Occasionally, one is left wondering about the basis of a statement of fact, about the source of an assertion about the "way things work" in the criminal justice system.