NCJ Number
76037
Date Published
1980
Length
16 pages
Annotation
According to this paper, reforms of criminal procedures are usually minimal because they are almost completely in the hands of the legal profession. To achieve more effective reform, more attention should be given to the needs and internal dynamics of this group.
Abstract
Changes in the U.S. law can be brought about through legislation and by court action. However, reforms initiated by a court may pertain only to matters of procedure and not to matters of substance. Even though in most States the power to make new procedural rules is shared by the courts and the legislatures, since the 1920s there has been movement by legislatures to divest themselves of this power. As a result, most reforms are conducted within confines of the legal profession and the public is rarely included. Some States hold public hearings after the initial drafts of proposed reforms have been prepared by an advisory committee appointed by the State supreme court and consisting almost entirely of judges, lawyers, and law professors. If the reaction is vociferous and raises the possibility of serious public controversy, an attempt at compromise is usually made by amending the offending provision to remove what is objectionable without doing damage to the remainder. Thus, the basic shape of the reform is determined by those who are involved in the drafting and public reaction and criticism - assuming it is not so hostile as to defeat the legislation - has little effect. This means that lawyers, with their conservative attitudes and cautious approach to legal reform are politically the most important group in legal reform. The interest of the American bar in complex adversary procedures is in maintaining the image of the legal profession as an indispensable and valuable part of the judicial process. Procedural complexity of the judicial process allows the lawyer to do more for the client than would be possible if legal proceedings were simply the rational and fair search for the truth. This is why lawyers have resisted any change that threatens to simplify procedures. However, the attention should not be focused on political forces outside the legal profession but rather on the needs and internal dynamics of the legal profession itself, when the legislation involves matters of procedure. Critique of several studies, notes, and over 20 references are included.