In all fairness: balancing rights in the criminal justice system.

• Author: Carminati, Marilena M.

The public often perceives inadequacies in the criminal justice system. Sometimes, those perceptions are based on real difficulties; sometimes they are based on a lack of information or of adequate information about the facts of a particular case.

Research studies have shown that sentences imposed, for example, are felt by large numbers of people to be inadequate, but when more and more detail is provided about the facts giving rise to the sentence, the greater the acceptance by those people of the sentence imposed as a fair reflection of culpability.

Achieving justice is no easy task. That is because all members of our society have certain rights. The difficult thing is that sometimes those rights conflict. Prioritizing rights can be a very challenging task -- often this involves choosing between equally important principles. There is no doubt that the justice system has sometimes overlooked, or attached little weight, to rights that should have been treated very seriously, for example, the rights of women who were victims of sexual assault.

However, in the context of a trial, a judge or jury must decide whether the person charged is guilty or innocent. This is an important decision with ramifications for the victim or alleged victim, the person charged, and society as a whole. How the decision is made is just as important as the result.

That is because fairness has two aspects to it: the way a decision is made and the actual decision itself. Sometimes the emphasis among lay people is on the latter aspect of fairness -- the result is criticized as not being fair. But the way the decision is made is also clearly crucial if we are to live in a just and fair society.

Basic principles of fairness demand, for example, that a person charged with a crime should be entitled to know why he or she is being charged, and to know the evidence that will be presented against him or her.

Imagine, for example, as we descend into the Kafkaesque world of possibilities, that one day, the police show up at your door with a warrant for your arrest. You are taken aback. You have not done anything wrong. You ask what you are being arrested for. The police say, "Why should we tell you? You're guilty so you should know." You still don't know what they are talking about. You protest your innocence, but you have no idea on what day you supposedly committed a crime, or where, or how. You plead not guilty, and you are given a trial date. You still know nothing.

On the...