Gamesmanship and Criminal Process

ARTICLES GAMESMANSHIP AND CRIMINAL PROCESS John D. King* ABSTRACT We ®rst learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal litigation. Allegations of gamesmanshipÐthe aggressive and strategic use of rules that violate some sense of decorum or culture yet remain within the formal rules of engagementÐcut across both contexts. This Article examines what sports can teach us about gamesmanship in criminal litigation. After distinguishing gamesmanship from cheating, this Article compares several examples of gamesmanship in sport and criminal litigation. These examples address the Crawford right of confrontation, the Brady obligation to disclose favorable evidence to the defendant, and the Batson prohibition against using race in jury selection. This Article uses the jurisprudence of sport to propose a framework within which to view these claims in the criminal justice context. Recognizing the asym- metrical nature of the adversarial criminal justice system and the dual role of prosecutors as advocates and ministers of justice, this Article argues that prosecutorial gamesmanship poses a different and more acute danger to the legitimacy of the criminal adjudication system than does such behavior by defense lawyers. This Article concludes that gamesmanship is not only an inevitable part of any rule-based adversarial contest but also a positive and productive phenomenon that forces those invested in a system to de®ne which values and objectives are fundamental to that system. Only when an instance of gamesmanship is inconsis- tent with these broader values or objectives should it be regulated or eliminated. * James P. More®eld Professor of Law, Washington and Lee University School of Law. LL.M., Georgetown University Law Center, 2005; J.D., University of Michigan Law School, 1996; B.A., Brown University, 1992. I would like to thank Mitchell Berman, Stephanos Bibas, Johanna Bond, Youngjae Lee, Alice Ristroph, Jonathan Shapiro, Kate Weisburd, and Ty Alper for their helpful comments and suggestions, as well as Kimberly Blasey for her outstanding research assistance, and the Frances Lewis Law Center for its ®nancial support. © 2021, John D. King. 47 48 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:47 INTRODUCTION ............................................ 48 I. WHY LOOK AT SPORTS RULES? ............................ 51 A. Comparing ªLegalº Regimes ......................... 52 B. The Long History of Comparing Law to Sport ... 53 C. Limitations of the Analogy Between Law and Sport ... 57 II. CHARGES OF GAMESMANSHIP IN CRIMINAL LITIGATION AND IN SPORT ... 60 A. Charges of Gamesmanship in Sport .................... 60 1. Violating a Core Rule of the Game . 60 2. Losing on Purpose ............................. 63 3. ªOver-Enforcingº an Obscure Rule Against an Opponent . 65 B. Allegations of Gamesmanship in Criminal Litigation . 67 1. Confrontation and Discovery Rights . 68 2. Disclosure of Favorable Evidence . 72 3. Jury Selection ................................. 74 III. GAMESMANSHIP, CHEATING, AND HOW TO RESPOND . 77 A. Gamesmanship De®ned ............................. 78 B. Gamesmanship Distinguished from Cheating . 79 C. Regulatory Responses to Gamesmanship in Sport . 87 IV. WHAT CRIMINAL PROCEDURE CAN LEARN FROM SPORTS . 90 CONCLUSION .............................................. 95 INTRODUCTION We ®rst learn formal structures of rules and norms of conduct through games and sports. Notions of fair play, sportsmanship, and cheating are developed from an early age on basketball courts, playgrounds, and soccer ®elds. Today, as many critique the legitimacy of the American criminal justice system in several different respects, those who care about the integrity of the criminal justice system can learn from ideas and philosophies of fairness and cheating in the sports context. Speci®cally, the idea of ªgamesmanshipº in criminal procedure has fruitful analogies in the world of sport. In the adversarial world of American criminal adjudication, prosecutors and defense attorneys occasion- ally accuse each other of ªplaying gamesº instead of playing fair. But what one person would characterize as gamesmanship, another would characterize as zealously using the rules to the advantage of one's client or cause. And whereas ªcheatingº (in the sense of violating the constitutional or statutory rules that govern criminal practice) provides relatively clear lines of accept- ability, the more interesting and dif®cult questions instead involve the aggressive use of rules that might violate some sense of decorum or culture, but stay within the formal rules of engagement. The concept of gamesmanship is notoriously tricky to de®ne, but one useful def- inition from the Journal of the Philosophy of Sport is ªa strategy designed for 2021] GAMESMANSHIP AND CRIMINAL PROCESS 49 winning regardless of athletic excellence.º1 Translated to the criminal litigation context, this idea might imperfectly be expressed as ªa strategy designed for winning regardless of the factual and legal merits of the case.º Such a de®nition reso- nates with the negative connotations of the term in litigation: one side may use it to accuse the other side of engaging in tactics that have nothing to do with the true goal or ultimate systemic objective of the litigation. Others looking at the concept of gamesmanship from a philosophical angle have found a meaningful distinction between ªthe rules of the gameº and ªthe code of fair play.º2 The code of fair play, which is an unwritten set of shared expectations among the participants about the range of acceptable behavior, overlaps but is not co-extensive with the of®cial rules of the game.3 Some actions do not violate the rules but would offend notions of fair play, while other actions that violate the rules would not be seen as outside of the code of fair play.4 One such example is the intentional foul in basketball, which is against the rules of the game but is in no way seen as violating notions of fair play. Conversely, some litigators take the position that objecting during an opponent's opening statement or closing argument to a jury violates some shared expectation or norm of conduct, although doing so is certainly within the of®cial rules of engagement and in fact might be necessary to enforce those formal rules. Although usually invoked in a pejorative sense in sport and in criminal practice, gamesmanship can serve an important and productive purpose. By clarifying the boundaries of acceptable practice and by bringing into stark relief the limitations of existing rules, gamesmanship forces us to establish and defend which objectives are essential and which values are central to a system. Only where a practice of gamesmanship subverts or undermines an overarching goal is it problematic.5 The overall professed goals of the criminal justice system are familiar: the ascertain- ment of truth and application of just verdicts within a system that protects individ- ual rights and human dignity.6 If gamesmanship subverts these ends, it should be discouraged in criminal litigation. But the prescription depends entirely on how one de®nes the goals of the system within which gamesmanship is deployed. Often, what appears to be gamesmanship may be perfectly aligned with a broader goal and so should not only be tolerated but also encouraged.7 1. Leslie A. Howe, Gamesmanship, 31 J. PHIL. SPORT 212, 212 (2004). 2. DAVID PAPINEAU, KNOWING THE SCORE: WHAT SPORTS CAN TEACH US ABOUT PHILOSOPHY (AND WHAT PHILOSOPHY CAN TEACH US ABOUT SPORTS) 54 (2017). 3. See id. at 54 (de®ning the code of fair play as ªthe expectations that the athletes have of each other, their sense of what is and is not acceptable behaviourº and noting that fair play is ªoften consistent with breaking a game's rulesº). 4. See generally FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE- BASED DECISION-MAKING IN LAW AND IN LIFE (1991) (discussing the difference between norms and rules). 5. See Howe, supra note 1, at 216, 218. 6. See, e.g., Tehan v. United States ex rel. Shott, 382 U.S. 406, 415 (1966) (ªThe basic purpose of a trial is the determination of truth . .º). 7. Howe, supra note 1, at 221 (arguing that not using certain types of gamesmanship is ªdisrespectful of the opponentÐit implies that the other competitor is not signi®cant enough to warrant one's full attentionº). 50 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:47 An important caveat in comparing sports to criminal litigation is the asymmetry in role and resources between the contestants. Although a general requirement of sport is that each participant faces the same restrictions, is bound by the same rules, and pursues the same goals,8 our tradition of criminal justice assigns different objectives to prosecutors and defense lawyers. Because of these different roles, rules of gamesmanship should apply differently to the different players in the criminal justice system. Defense lawyers are bound, as a matter of ethics, to pursue the interests of their clients and to use whatever legal and ethical means are available to them to achieve their clients' goals.9 Prosecutors, on the other hand, are required not primarily to be advocates, but to be ªministers

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