University of Baltimore Law Forum Volume 22 Article 3 Number 3 Spring, 1992

1992 A Colleague's Observation... Jerome Frank as Prophet: Courts on Trial Revisited Damian L. Halstad Hoffman, Comfort, Offutt, Scott & aH lstad, LLP

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Recommended Citation Halstad, Damian L. (1992) "A Colleague's Observation... Jerome Frank as Prophet: Courts on Trial Revisited," University of Baltimore Law Forum: Vol. 22: No. 3, Article 3. Available at: http://scholarworks.law.ubalt.edu/lf/vol22/iss3/3

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. A COLLEAGUE'S OBSERVATION ...

JEROME FRANK AS PROPHET: COURTS ON TRIAL REVISITED

By Damian L. Halstad, Esquire

In 1949, legal philosopher and fed­ edges, are simply attributable to hu­ asks, ifthe facts to which we are apply­ eraljudge Jerome Frank published his man nature. An honest witness may ing the rule are wrong? Further, how most important legal treatise, Courts erroneously observe, recollect, or ar­ remedial is an appellate court when it On Trial. J Widely received as a com­ ticulate the facts, or may be uncon­ too is basically constrained by the fac­ prehensive and incisive criticism of sciously swayed by subtle subliminal tual findings of the trial court? The our trial courts, the book sought to biases. Further, a dishonest witness short answer is that the justice system eliminate the mystery surrounding the might commit perjury. These mortal must reject these rationalizations and courthouse and propose much needed failings and faulty observations are concentrate on improving fact finding. change to the judicial system. "My then filtered through a second tier of Frank's proposed reforms read like principal aim," Frank wrote in his pref­ interpretation, the finder of fact a checklist of what plagues the judicial ace, "is to show the major importance (whetherjudge orjury), with their own system today. His recommendations of [trial] courts; how they daily affect similar weaknesses. While Frank con­ included that courts institute "talking the lives ofthousands of persons; and ceded that no system can overcome movies" of trials; use non-partisan how, most often with tragic results, witnesses who lie, forget, or allow "testimonial experts" called by judges; they do their job in ways that need prejudices to color memory, he also encourage trial judges to actively ex­ reform." opined that a high percentage of mis­ amine witnesses; require special edu­ In the forty-three years since its takes in fact finding actually derive cation for prosecutors - a type of moral debut, Courts On Trial has proven from defects in our methods of getting fitness test emphasizing the obligation remarkably prophetic. The influx of at those facts, such as the adversary of a prosecutor to obtain and bring out television programs with law discussed system, the use of juries, the relative all evidence, including anything ex­ ostensibly as their subject has removed unaccountability of our fact finders, culpatory; and require similar training much of the mystery from the field of and the inherent advantage enjoyed by of police to guard against "third de­ law. These programs have shown us the State in criminal prosecutions. gree" interrogations. His most com­ litigation, negotiation and titillation of Regardless ofthe source of factual prehensive and novel reforms, how­ all kind. However, Frank's specific mistakes, Frank argued thattheirpreva­ ever, pertain to legal education, the criticisms of our legal culture remain lence makes it virtually impossible for jury system, and the role of the trial relevant and his proposed reforms have even well-trained lawyers to predict a judge. either been adopted or are again being court's decision in any given case. discussed by judges and bar associa­ Attorneys, however, find the reality of Legal Education tions throughout the country. It is this subjectivity intolerable, and hence Frank argued that the legal rule and therefore helpful to today's debate to perpetuate two myths to impose order upper-court myths owe their continued review Frank's theory as argued in his on the court system. M)1h Qn.e: Re­ existence to American legal education. literary tour de force. gardless of the actual facts, a rule of He frequently complained ofthe "neu­ Frank's fundamental jurisprudence, law exists to dictate the court's deci­ rotic-escapist" character of contempo­ a form oflegal realism, can be summa­ sion. M)1h I.wQ: Even ifthe trial court rary law schools, with their over-em­ rized in his signature phrase, "facts are renders a bad decision, the appellate phasis on the library, appellate opin­ guesses." In other words, the Ameri­ court is a safety net that will itself ions, and legal theory instead of the can justice system frequently fails be­ apply the correct rule to the facts. Frank reality of practice: cause ofmistakes in fact finding. Many concludes that both fictions are falla­ of these mistakes, Frank acknowl- cious. What good is a legal rule, he

______22.3/fhe Law Forum - 13 The law students are like fu­ complete record of the dispute, rather railroad company, or that they don't ture horticulturists studying than just analyzing the appellate opin­ want pretty Nellie Brown to go to jail solely cut flowers; or like fu­ ion. for killing her husband; and they bring ture architects studying merely Frank also used medical schools as in their general verdict accordingly." pictures of buildings. They a model for proposing a supplement to Cases are decided according to what resemble prospective dog­ the texts. He advocated frequent visits the jury supposes the law ought to be, breeders who never see any­ by the law student to both trial and and the jury therefore becomes not thing but stuffed dogs. Per­ appellate courts. "What would we say only the judge but the legislature in a haps there is a correlation be­ of a medical school," he wonders, "court house government." Further, tween such stuffed-dog legal "where students were taught surgery the general verdict (guilty ornot guilty, education and the over-pro­ solely from the printed page?" Like a liable or not liable) hide the jury's duction of stuffed shirts in my resident internship at a hospital, Frank errors by keeping from view their de­ profession. suggested that law schools operate le­ liberations. This form of detached legal education gal clinics where students could pro­ Frank does not condemn jurors for owes its beginning to Harvard Dean, vide free services to those in need this failure. Juries simply do not un­ Christopher Columbus Langdell, a bril­ while simultaneously learning the hu­ derstand what they are told by the liant recluse who rarely went to court man side of the administration ofjus­ judge about the legal rules. Given that and therefore deluded himself into be­ tice, including the hazards of jury tri­ the law is often incomprehensible to lieving that law is a science and a als, how legal rights are affected by attorneys, we obviously ask too much library the laboratory. "What qualifies lost papers, missing witnesses, perjury of the jury. If, by chance, the jury a person to teach law," Langdell wrote, and prejudice, the effects of "fatigue, understands the rules, they still face "is not experience in the work of a graft and laziness," on judges, and real formidable obstacles in ascertaining lawyer's office, not experience in deal­ draftsmanship. the facts. In addition to the normal ing with men, not experience in the In short, Frank believed students problems highlighted by Frank's fact trialorargurnnentofcauses,notexperi­ could be taught to read a case in six skepticism,juries often need computer­ ence in learning law ...." As a result, months. The remainder of the three like memories to assemble and sepa­ long after Langdell, law students are year law school experience is wasted. rate evidence which may by too eso­ taught by professors who often know Supporters ofthe Langdell method ar­ teric or scientific to begin with, and very little about being lawyers. gue that book-law analysis does no must overcome what Frank called the Ironically, the method oflegal train­ harm, and students will eventually learn ''thirteenth juror" - prejudice. Frank ingthatLangdel1 replaced was, in truth, the real legal facts in practice. Frank concluded that ''there is probably more superior. The colonial law student was effectively dispelled this tepid argu­ wool-gathering in jury boxes than in essentially an intern; an apprentice who ment by countering that students are any other place on earth." "read law" in the office of a practicing essentially miseducated by receiving As a solution, Frank bluntly pro­ attorney. He was in daily intimate or forming an erroneous, ivory-tower posed abandoning jury trials except in contact with courts and law offices. impression ofthe ways courts and law­ major criminal cases. Alternatively, "Before his eyes, legal theories re­ yers behave. He finally asks, ''what he recommended several changes to ceived constant tests in legal practice." kind of education is it that has to be the jury system, including the special Arguing that the profession was dam­ undone?" verdict, which compels the jury to make aged by the abandonment of the ap­ specific findings offact to which a trial prentice system, Frank presented spe­ The Jury System judge may apply an appropriate rule. cific reforms to improve the curricu­ For ages the jury system was viewed Frank believed that this would ensure, lum. as the great achievement of English at least to some degree, a reasoned Frank first suggested that most law and American jurisprudence. The jury, verdict rather than an emotional re­ schoolteachers possess five to ten years according to lore, finds facts and then sponse. Frankalso suggested the "spe­ experience practicing law. This would uses legal reasoning to apply to those cial jury." Ifa case relates to a particu­ end the perpetual cycle ofthe book-law facts the legal rules it learned from the lar business, trade or profession, Frank teacher producing not lawyers, but other judge. Frank, however, rejects this recommended empaneling a jury con­ book-law teachers, ad infinitum. Next, theory as naive and labels juries ''the sisting ofcitizens engaged in the same Frank proposed that the law school skeleton in the judicial closet." He business, thus reSUlting in a more in­ "case system" should be modified to proposed his own "realistic" theory: formed jury. Next, Frank believed the replicate the case history style used in that jurors often ignore the facts, defy court should employ its own objective medical schools. This would allow the law, and "determine that they want expert to report on the facts and form law students to read and examine the Jones to collect $5,000.00 from the an opinion that the jury may take or

14 - The Law Forum/22.3 leave. Frank would also abolish most cult of the robe." The use of the robe, Conclusion ofthe civil exclusionary rules; hetheo­ which did not become standard in the Ultimately, the importance of rized that such rules often keep out United States until the late 1800's, Courts On Trial transcends its specific important evidence without which the provides equal prestige to the worthy reforms. In the midst of McCarthy's actual past facts cannot be detennined. and unworthy. It creates an air of America, Jerome Frank undertook an Frank further suggested recordingjury mystery about the bench and thereby assault on the most sacred of our gov­ deliberations so that the Court could shields judges and their methods from ernmental branches by attacking the determine whether the verdict was rational inquiry. "Robism" similarly myth ofthe court's divinity. Byexpos­ reached by improper means. Finally, affects court opinions. "The conven­ ing the warts of the judicial system, Frank recommended citizen training tions ofjudicial opinion writing, " Frank Frank promoted beneficial changes, for jury service consisting of courses observed, ''the uncolloquial vocabu­ including videotaped trials, law school that track the function of the jury and lary, the use of phrases carrying with clinics, practical legal education, and nature of trial court fact finding. Such them an air of finality, the parade of the humanization of the bench. In­ a requirement might mitigate the class precedents, the display of seemingly deed, while some ofthe weaknesses in warfare that is currently conducted in rigorous logic, bedecked with our courts that Frank noted still exist today's urban courtroom. 'therefores' and 'must be trues' lendan today, they are nevertheless more ac­ air of thorough certainty, concealing cessible and frankly fairer than forty The Role of the Judge the uncertainties inherent in the judg­ years ago. Courts On Trial arguably In response to his rhetorical ques­ ing process." Believing that courts initiated that improvement, and will tion, "Are judges human?" Frank an­ have an obligation to make themselves hopefully inspire continued attempts swered an empathic "Yes." That real­ intelligible to the average citizen, Frank to perfect the process. ity, as much as any other, affects the advocated the literal and metaphorical fact finding process: abandonment of the robe, relying on Endnote [The judge's] own past may the somewhat dubious beliefthat"plain 1 Jerome Frank, Courts on Trial (1949) have created plus or minus re­ dress may encourage plain speaking." (First Princeton Paperback ed., actions to women, or blonde To otherwise help improve their Princeton University Press 1973). women, or men with beards, perfonnance, Frank suggested special or Southerners, or Italians, or training for trial judges. In light ofthe About the Author: Damian L. Englishmen, or plumbers, or almost irreversible weight given judi­ Halstad, Esquire is an associate with ministers, or college-graduates cial fact finding, it is imperative that the law firm ofHoffinan & Comfort in or Democrats. A certain facial they be prepared to do their job will. Westminster, Maryland. He is a 1987 twitch or cough or gesture may The would-be judge should first de­ graduate ofthe University ofMaryland start up memories, painful or velop solid litigation experience as a School of Law and a 1983 graduate of pleasant. Those memories of trial lawyer, including an apprentice­ Loyola College. He is also a fonner the trial judge, while he is lis­ ship with a trial judge. He should be law clerk to Judges ofthe Circuit Court tening to a witness with such educated in psychological devices use­ for Carroll County, Maryland, and the facial twitch or cough or ges­ ful in testing the trustworthiness of Court of Special Appeals ofMaryland. ture, may affect the judge's witnesses. More importantly, Frank initial hearing, or subsequent believed the prospective trial judge recollection, of what the wit­ should undergo "something like a psy­ ness said, or the weight or choanalysis" to explore his own preju­ credibility which the judge will dices and biases in an attempt to over­ attach to the witness' testi­ come them. Additionally, Frank sug­ mony. gested that the future trial judge be­ Combine the judge's idiosyncracies come aware not merely of his preju­ with his very human attention span, dices, "but also of the factors which and the impediments to accurate judi­ peculiarly affect his capacity for sus­ cial fact finding are evident. More­ tained attention, so that he can avoid over, the judge often feels compelled inattention when witnesses testify be­ to obscure her findings and subsequent fore him." Finally, prior to appoint­ decision in a legal opinion that is basi­ ment, the trial judge should be required cally undecipherable. to pass a "stiff examination" of her Much of the obscurity is due to legal ability and moral character. what Frank tenns "robism," or ''the

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