One way of understanding error is as an engine of evolution. Species evolve because of errors in the replication of genetic sequences. Science evolves (at least in part) through discovering and rectifying past mistakes. Likewise, American jurisprudence has evolved largely in response to its own errors — or so Alan Dershowitz suggests below. In Part II of our interview, he and I discuss the role of error in the law, why criminal defense work makes some people squeamish, and whether or not our legal system cares about the notion of truth. (Click here to read Part I.)
I want to ask you about the function of error within the law.
I think mistakes are the essence of science and law. It's impossible to conceive of either scientific progress or legal progress without understanding the important role of being wrong and of mistakes. Both [science and the law] are built on learning from mistakes.
It's an interesting analogy, but there are some salient differences between science and the law. If you think of them as two different systems to arrive at some kind of truth —
No, I don't agree with that. I don't think the law exists to arrive at the truth. If it did, we wouldn't have exclusionary rules, we wouldn't have presumptions of innocence, we wouldn't have proof beyond reasonable doubt. There's an enormous difference between the role of truth in law and the role of truth in science. In law, truth is one among many goals.
Sure, but aren't those examples you cite partly protections we built into the law out of respect for how hard it is to get at the truth? Take reasonable doubt: Ever since Maimonides, legal theorists have argued that it's better to let a hundred guilty people go free than to convict one innocent person. That seems like embedding awareness of fallibility, of our imperfect access to the truth, within the institution of the law.
The law is agnostic about truth. It's very skeptical of ultimate truth. That's why freedom of speech permits lies to be told. Most liberal democracies don't try to figure out what the truth is. I would be very upset if my country, like Hobbes, decided there was truth. Hobbes said that one of the obligations of those who govern is to censor lies, because those who govern have unique access to the truth. That's not the American way.
Right. I think we're making the same point. The American political and judicial system is founded in acceptance of the notion that we are liable to err — in contrast to, say, monarchies, where rulers were taken to be infallible.
I had an opportunity to discuss this once with [Richard] Feynman, the man who won the Nobel prize in physics. What I say about law he says about science: that with very, very rare exceptions, there aren't ultimate unchangeable truths and that a brilliant mistake is the most important contribution a scientist can make. For example, phrenology, which was just totally wrong, contributed an important thing to science, because it was really the first pseudo-science that said there's a connection between the mind and the brain. Phrenologists got everything wrong, but they were right that in some ways the brain determines the content of the mind. So that was a grand mistake, a great mistake. Neuropsychology and neurobiology-almost all the neurosciences emerged from the great mistake of phrenology.
So what's the analogy in the law?
What is the common law? The common law is a statement that says that we never quite get it right. Every lawsuit results from somebody doing something wrong. If everybody did right, we wouldn't need laws. It's mistakes, some accidental, some deliberate, that drive the law to constantly adapt and change. So I think it's crucially important that we look at errors and learn from them and adapt to them.
I wrote a book called Rights from Wrongs , and the whole point of the book—which is my whole philosophy of life—is that we learn so much from our mistakes. Our rights come from all the wrongs we've done. The 13th, 14th, and 15th amendments grew out of recognition of the horrors of slavery. The entire human-rights agenda internationally grew out of the Holocaust. I wrote another book [ The Genesis of Justice ] about how the Book of Exodus, which has the Ten Commandments and all the rules, grows out of the terrible mistakes that characters make in the Book of Genesis. My whole philosophy is based on correcting error, trial and error. Or, rather, error and trial.
Can you give me a contemporary example?
I'll give you a perfect example. So Goldman Sachs does something terrible. They get a man who was betting against certain bonds to pick the bonds for a fund that's betting in favor of those bonds. There's one problem: Although we know it's terrible and it doesn't pass the smell test, it happens not to be against the existing law, because it's such a clever technique that no one else thought of it. You can't anticipate all possible mistakes or evildoing that people can come up with. So in the end we may have to give Goldman Sachs a pass on this one and use their terrible mistakes as a basis for passing new legislation. And then people like [hedge-fund manager John] Paulson will figure out ways of evading the new legislation, because the bad guys are always a step ahead of the good guys. They're always cleverer; they have a greater motivation.
I agree with this account of the role of wrongness, and of wrongs, in the evolution of law, but I want to return to the question of truth. However skeptical the law might be of ultimate truth, it's supposed to help us figure out — to the best of our abilities and within the bounds of certain rights — things like whether or not X person killed Y person. Right?
Well, if you're saying that there are facts at issue, yeah. In the end, "Was Kennedy assassinated by just Oswald alone?" is a fact that either happened or didn't happen. We've lost access to that particular truth. We'll never know it for sure because the process was so flawed.
But to take your example — if Y person is dead, that's not a legal fact, that's a scientific fact. The scientific fact is: Did X pull the trigger that caused the bullet to leave the gun and enter the body that produced the termination of the heartbeat? That's a scientific fact. It's an element of the legal facts, but the legal fact is: Was that killing murder? That killing could be self-defense. It could be a military killing. It could be shooting of a firing squad. It could be premeditated killing. It could be an accidental killing. It could be a killing done in the heat of passion. Those are going to be much harder facts to access.
People have a lot of moral discomfort about the kind of criminal defense work you do, and I think this distinction you're making gets to the heart of why: There's a sense that the legal facts somehow obscure the scientific ones. If you perceive the judicial system as a mechanism for arriving at the truth—if you think the law gets the last word on whether X killed Y—you're going to be very uncomfortable if the legal verdict is at odds with the factual one.
Well, everybody should be uncomfortable. I tell my students, if you ever become comfortable with your role as criminal defense lawyer, it's time to quit. It should be a constant source of discomfort, because you're dealing with incredible moral ambiguity, and you've been cast into a role which is not enviable. You have to stand on the side of somebody who probably did it, but the "probably" isn't enough, or the process by which the evidence was obtained was not pure. There should be moral ambiguity, there should be discomfort. But there should be discomfort with the other [inadequate or nonexistent legal representation] as well. Anytime you try to abolish the system or change it, what are we opting for? What's the alternative?
How do you personally live with that discomfort?
I love discomfort. I mean, my whole life is discomfort. One reason I can never retire is that the idea of just sitting on the beach totally comfortable is not a desideratum in my life. I like ambiguity, I like conflict, I like uncertainly.
Have you had experiences where the discomfort crosses the line to the point where it starts to keep you up on at night? Where you think, you know, maybe I wasn't on the right side on this one?
Of course. Yes. I wrote a novel called Advocate's Devil , about a lawyer who has that discomfort reach a point where he can't deal with it. Obviously I had to write about it in fictional form because I can't tell you with any particularity about the cases where that's happened to me. But, yeah, you do wonder. And there are cases I don't take because the discomfort level is just too high.
Did you write that novel as a catharsis for dealing with a situation that in retrospect felt like a mistake, something you wish you hadn't gotten into?
Yeah. No. I wouldn't say it was for dealing with a mistake. It was for thinking about what would happen if I ever got to that position. I've never been in the position where a client that I've gotten acquitted — and I've gotten a lot of people acquitted — has ever quote "done it again." I've never had that. But it could happen, and I've thought about it a lot. I've had nightmares about it. But my biggest nightmares are cases where my client is innocent and where I think I might lose.