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A Metaphor

Non-players, please pardon the chess metaphor and fret not – no detailed knowledge of the game is necessary.

Imagine a chess board, set up in advance to position toward the middle of the game. One side may have a material or positional advantage in the game. Now imagine that two players, not necessarily evenly matched in skill – in fact likely very unevenly matched – are each assigned a side to play. Play continues until each side feels they can no longer make moves that will improve their chances of “winning” – and they then stop. Sometimes this is at “mate”, and sometimes not. Now imagine a group of observers – none have ever played chess before, themselves. Another long-time chess-player explains the rules and object of the game to them. He also watches the game to ensure that neither player cheats – but he isn’t always very attentive! After play stops, the observers talk amongst themselves until they can unanimously pronounce a winner of the game!

What have I just described?

The American judicial system.

The initial set-up of the board – corresponding to the “middle” of the game correspond to the “evidence” as it is situated before the DA by police investigators. The players are the opposed legal teams. In a criminal case, one “side” is the the DA’s office. Their job is to get that evidence and turn it into a conviction. That’s how they win the game. Not by discovering the truth. By getting a conviction, using the “evidence” where it helps them to do so, but ultimately by applying their skill at the game. Likewise, the opposing player is the criminal defense attorney, who tries to get an acquittal.

The theory is that from all of this gaming, the “truth”, beyond a “reasonable doubt” will emerge. My question is this: Why should we expect it to?

There is a part of the process that includes working with evidence. The police investigators do it, sometimes with an assist from forensic scientists who actually have some training (of some quality) in interpreting evidence. And it’s fair to say that in a large percentage of cases the police investigators are not motivated primarily by the hope of a conviction, but at least as much by the hope of discovering a real culprit. But there *is* political pressure on police departments to get convictions. And investigators are themselves not rigorously trained – the way, say physicists are – in how to conduct an investigation without bias or error.

And, so, while evidence plays a role, the actual goals in the process are the opposing ones of the defense team and the prosecutorial team. Should the defense team be too good and the prosecutorial team too poor, then the guilty walk and threaten the neighborhood again. If it’s reversed, then the innocent go to prison or worse.

How a system of this sort has become the celebration of pop culture on television and never become the object of the public’s scorn is completely beyond me.

So, that’s enough for now. I’ll try to think & write about a better way as I can.

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