We Try Harder

Tightening the Reins of Justice in America: A Comparative Analysis of the Criminal Jury Trial in England and the United States

by Michael H. Graham
Greenwood, 341 pp., $35.00

In England the police can arrest you on no more than “reasonable suspicion” that you have committed a crime. This includes possessing drugs or carrying an “offensive weapon,” which can cover a multitude of objects. If you are arrested, the police officer in charge of your case may deny your request to see a lawyer on the ground that this would impede the progress of the investigation. You may be held incommunicado by the police for interrogation up to thirty-six hours and, under a recent statute, a magistrate can extend this period up to ninety-six hours. When you do appear in the Magistrates’ Court there is no guarantee, if you are poor, that you will be assigned a lawyer, unless the case is one of some gravity. A lawyer may be present in the court to advise defendants but you may not be sure for whom he works and at best you can have only a brief, huddled conference with him.

Even if you have a lawyer, you will not be permitted to sit with him but will have to stand in a large elevated box. If you have the misfortune to be charged with a serious crime you may be denied bail and may have to wait months for a trial, locked for more than twenty hours a day in a small cell with two other prisoners and one communal bucket for your bodily needs. If eventually you are convicted and kept in prison you should not be very hopeful that what you see as an injustice will be corrected on appeal. The appeals court will not receive any written brief but will only listen to an oral presentation. Very few convictions are reversed.

Yet many American observers, including Chief Justice Burger, regularly point with admiration and envy to the English system as one we should strive to emulate. They have now been joined by Michael Graham, a professor of law, whose book advocates that by copying the English prosecution and trial process we may find the answer to some of our criminal justice problems.

There is, of course, a dark side to the explanation. American criminal procedure has paid close attention to the rights of suspects and defendants for no more than twenty-five years. There are those who look back nostalgically to a more authoritarian system, unhampered by the obstacles thrown up by recent efforts to protect individual rights. In legal circles this is often reinforced by toadying to the English, whose bewigged but mediocre appellate judges are treated with an absurd reverence by some American lawyers. Many people are unaware that serious crime continues to increase in Britain while it has leveled off in the US.1

But to dismiss the envy of the English courts as merely a reactionary response would be a mistake. Some aspects of English criminal procedure understandably have a special appeal for Americans who find our criminal trials slow-moving, expensive, and inefficient. Professor Graham gives us a useful account of the…

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