To what extent can criminal trials be expected to establish the truth about historical events? The question is a serious one, but it has been confounded by a discrepancy that exists between the legal and the popular conception of what a trial does. In law, the purpose of a criminal trial is to decide, according to predetermined norms, whether a defendant is guilty or not guilty of a particular charge. Adversary proceedings are designed to render a simple yes-or-no answer to some precise question, a question which has been drawn in as specific a manner as possible. In the popular imagination, however, a trial performs a somewhat grander service. It is looked upon as a fact-finding operation, an occasion for the public exposure of all known information regarding a given crime. The general assumption is that, if fairly conducted, a trial will yield the whole truth; aside from meting out justice to the accused, it will provide complete information and resolve the doubts of a concerned public.


The assumption that the “truth” ineluctably emerges in a fair trial is the premise of countless mystery novels and courtroom television dramas of the Perry Mason variety. It is a presupposition which is reinforced by the news media, a convenient tack for journalists to take since it reduces the burden of reporting the facts about a crime to the business of covering court proceedings. “Objective journalism” requires only that both sides of a story be printed—a requirement that it is fulfilled by the contrapuntal presentation of evidence by prosecution and defense; in addition, cross-examination provides an element of dramatic conflict, neatly resolved by the jury's verdict.

A recent lead editorial in the New York Times, entitled “Tongue-Tied Justice,” and written in reaction to James Earl Ray's decision to plead guilty to the murder of Dr. Martin Luther King, is a telling case in point. For Ray's decision had the effect of depriving the press of a long-anticipated trial, one which was expected to provide answers to the same sorts of questions which continue to disturb the public regarding the assassination of President Kennedy, and which presumably linger on because Lee Harvey Oswald was never brought to trial. The editorial is worth quoting at length:

The aborted trial of James Earl Ray for the assassination of Dr. Martin Luther King, Jr. is a shocking breach of faith with the American people, black and white, and of people the world over still numbed and puzzled by the gunfire that struck down this international leader.

Ray is entitled by all legal means to avail himself of the defenses open to him under the law. But by no means, legal or pragmatic, should the doors of the courtroom and the jail be slammed shut on the facts, the motives, and the doubts of this horrible murder.

Why should this assassination case be tried by statements instead of formal legal procedures, subject to examination and cross-examination, the presentation of all the evidence by the prosecution, the appearance of the accused in open court? . . . In the ghetto and in the world outside the ghetto, the question still cries for answer: Was there a conspiracy to kill Dr. King and who was in it?

The state's case has been read to the jury. But that is hardly enough in a case of this magnitude. This was not a street crime but, on the surface, a racist or quasi-political assassination. It is not enough to say that the state accepted the guilty plea and agreed to end the case because the death penalty has not been used since 1961 in Tennessee.

No one was demanding blood; everyone is demanding facts. Are we going to get the facts from Ray's lawyers, past or present, one of whom is trying to peddle the story to magazines? Are we going to get the facts from William Bradford Huie, the author who has “bought” the “rights” to Ray's story? What a mockery of justice for the facts to emerge in marketed justice!

Unless proceedings are convened in court—Federal, if not state—we shall never know the adjudicated truth. There should be no Warren Commissions necessary—a month or a year from now—to still our doubts and do what a Tennessee court has failed to do.

It is clear from this editorial that the Times does not consider it the function of a trial merely to determine whether the accused is guilty or not guilty; Ray's plea would have been sufficient for that purpose. The “mockery of justice” perpetrated by the Tennessee Court lay not in its failure to provide due process for Ray but in its failure to provide information to the public: “facts,” not “blood.”


The rights of a defendant notwithstanding, the news media insist that a major trial be turned into a public forum. To accomplish that end, the accused must appear in open court, the prosecution must present all the evidence, cross-examination must take place, and “by no means, legal or pragmatic,” should the courtroom doors be slammed shut on the facts. Naturally, a plea of guilty on the part of a defendant is therefore precluded, for it cuts short the issuance of facts and information. What the media do not appear to understand, however, is that a guilty plea is a defendant's legal prerogative. Nor do the media fully recognize the right of the accused not to take the stand but simply to remain mute, or the right of the defense to attack or attempt to contravert the prosecution's case without presenting its own side of the story, or the procedural rules which impose restrictions upon the sorts of evidence that may be introduced and which require that the prosecution present only such evidence as is relevant to the specific charges at hand. There can be no provision in law, furthermore, for differentiating between “routine” murder trials and extraordinary ones, such as “quasi-political assassination”; all must be governed by the same fixed rules, some of which necessarily impede the disclosure of information. Often the right of a defendant is precisely his right to withhold, or prevent the prosecution from introducing, certain information which the public might like to know but which might prove to be prejudicial to his case.

Where James Earl Ray is concerned, it is not at all certain that a full-dress trial would have provided any truly satisfying historical answers to the mysteries of the King assassination. The prosecution's case, which the jury had read before the guilty plea was accepted, introduced no evidence that Ray had been party to a conspiracy. The defense apparently had no intention of attempting to show that Ray had murdered Dr. King at the behest of others; indeed, it would not have made much sense for the defense to have done so, since the fact of Ray's participation in a conspiracy would in no way have affected the murder charge. An open trial could only have facilitated a judgment as to whether or not Ray was guilty, as charged, of having fired the shot that killed Dr. King.


In one of the few systematic efforts that have been made to evaluate the fact-finding efficacy of criminal trials, Professor Herbert Packer of Stanford Law School examined some of the more prominent cases involving accused Communist subversives during the McCarthy era1; he found that a trial, considered as a means of establishing historical truths, inevitably encounters one of two problems: “either it leaves out too much to be informative or it includes too much to be orderly.” To be effective, a criminal charge must be drawn as narrowly as possible. Rules of relevancy are such that a complete historical exposition can rarely emerge in the course of a trial. Even in cases—like the Smith Act conspiracy trials—where a great deal of information was allowed to be introduced, Packer found that the adversary process “simply is not well adapted to the intelligible sequential ordering of complex factual information”; those bits and pieces that have emerged in such trials fail to yield a comprehensive truth. Packer concluded that the criminal trial, as an instrument of fact-finding, was unequal to the demands placed upon it. Since most criminal trials are settled by a guilty plea or by a plea negotiated by the counsels, a comprehensive search for facts is not called for, or needed. In “routine” cases, ones that do not generate public controversy, the verdict of the court is generally accepted, and soon forgotten, by the public: the fact that a decision has been rendered is more important than the nature of the verdict itself. It is only in the most celebrated cases, usually those which touch upon widely held political or moral convictions, and in which the crime is linked to a larger symbolic cause, that the verdict is likely to be challenged. Yet even in such cases, the attack usually centers upon the question of the fairness with which the trial was conducted rather than upon the question of whether the court as an institution possesses the necessary fact-finding apparatus to determine satisfactory truths about a complex event.


In the United States, perhaps the trial most thoroughly scrutinized for its “fairness” has been that of Sacco and Vanzetti; for many people, this trial has become a kind of American version of the Dreyfus case. The common argument runs as follows: two Italian anarchists were arrested and convicted of murder, not because there was any substantial evidence against them, but because of a prevailing hysteria about, and prejudice against, anarchists, a prejudice shared by the court that tried them. Even though the trial was manifestly unfair, and the evidence transparently flimsy, the argument continues, the Establishment rallied to the defense of the verdict in an effort to protect the political system.

In 1927, the year that Sacco and Vanzetti were executed, the trial proceedings against the two men were vigorously attacked by Felix Frankfurter, then a professor of law at Harvard; scores of books and articles have since reiterated and expanded upon Frankfurter's basic theme that the trial was un-fair.2 Herbert B. Ehrmann, the last surviving defense lawyer who played a central role in the case, has now written the latest, and what is no doubt the most comprehensive, analysis, not only of the trial, but of the crime as well.3

Ehrmann too argues that the conviction of two innocent men proceeded from an unfair trial and from the egregious errors of a prejudiced judge, but his trenchant analysis of the evidence, both that introduced into and that omitted from the trial, raises larger questions about the adequacy of the judicial process. For most of the evidence that Ehrmann, like others before him, has relied on to show that Sacco and Vanzetti were innocent of the crime, was in fact never introduced during the trial. Some of this evidence, such as a convicted murderer's belated confession that his gang, and not Sacco and Vanzetti, were responsible for the crime, came to light only after the trial had ended. Other evidence, like the reports of the Pinkerton Detective Agency and the local police department, which cast considerable light on the way in which the case against Sacco and Vanzetti was constructed, were not entered into evidence by the prosecution because they were not relevant to the charges against the defendants. Agreements between defense and prosecution counsel led to the exclusion of still other evidence that might have further illuminated the case. Since a trial is not an investigative but a demonstrative proceeding, it can only evaluate the facts brought forth by the prosecution and defense. And, given the nature of the adversary system, in which each side attempts to develop evidence that is helpful to its side of the case and exclude evidence that is detrimental to it, there is little reason to expect that a trial, even a fair one, will produce all the evidence that exists.

Ehrmann demonstrates how the prosecutor's skillful cross-examination was used to confuse witnesses about events that took place more than a year before the trial, and to discredit the testimony of hostile witnesses. (Herbert Packer also found that cross-examination does not necessarily serve as a “great engine of truth” for eliciting the broad context of an event.) Ehrmann further indicates that “expert testimony” was not always the impartial scientific interpretation of evidence that it is presumed to be. The experts in the Sacco-Vanzetti trial made prior arrangements as to what they would be asked and how they would answer. In the testimony about ballistics, for example, a noted expert went to considerable lengths to find terms that would deliberately convey a misimpression of his actual reading of the evidence. Some of the more telling ballistics evidence was also excluded by stipulations, or deals, between prosecution and defense. This is not to suggest that evidence that was excluded would always have worked to the defendants' benefit. A re-analysis of the ballistics evidence, for example, done six years after the trial with the newly-developed comparison microscope, indicated that one of the murder bullets did indeed match the revolver found on Sacco at the time of his arrest.4


But in any event, the fact that data which may be vital to the determination of historical truth can be excluded from a trial does not necessarily mean that the trial is “unfair”—at least, not in the sense that the rules and procedures of law have been unfairly or improperly applied. Quite the opposite may be the case: rules and procedures designed to protect the rights of the accused and facilitate the adversary process can, and often do, work to restrict the evidence that can be introduced. Nor can a trial, no matter how “fair,” evaluate evidence that has been missed by the police investigations, which themselves may have been faulty or tendentious. The ability of the defense to conduct its own private investigation is limited by the resources available to it, both financial and legal, and by its purpose—to find data which support its client's side of the case. Even if the Sacco-Vanzetti trial had been a paragon of fair procedure, a true picture of the event might not have emerged in the course of it. To be sure, a fairer trial (which would have excluded more, not less, evidence) might have produced a verdict of not guilty, but that judgment would still have been made on the basis of incomplete information—for example, some of the incriminating ballistics evidence might have been disallowed for technical reasons—and there still could have been no certainty about the accuracy with which the trial had reconstructed the historic event.

A trial, then, can produce a decision of guilty or not guilty, and if the trial is assumed to have been fairly conducted, the decision will be generally accepted, but a trial cannot be counted on to yield large historic truths. Whether the doubts surrounding the King assassination will be resolved more reliably than those of the Sacco-Vanzetti case remains to be seen. But the nature of our judicial system is such that, when the investigative wherewithal of public agencies has been exhausted, the responsibility for providing the public with a full rendering of the event ultimately rests not with the courts, but with concerned historians.

Edward Jay Epstein is the author of Inquest and Counterplot.

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