Legal Commentary

As I mentioned, one striking feature of yesterday's House hearing on Roger Clemens' steroid use was the extent to which the attacks, challenges, and pointed questions directed at each witness divided on partisan lines. A related feature was the very fact that they were being attacked and challenged by the committee members, the very people also charged with hearing the evidence, judging witness credibility, and deciding how to proceed going forward--in other words, those charged with finding facts. Meanwhile, Clemens' lawyers sat meekly behind Clemens, occasionally leaping to their feat to make objections in dramatic, Law & Order fashion, but largely unable to do anything to stop lines of questioning they did not like. And they never got a chance to ask Brian McNamee any questions.

Welcome to the inquisitorial system of proof-taking, where the hearing body does it all--gathers evidence, asks questions (including questions designed to challenge witness credibility), and makes decisions based on the evidence it has gathered. Attorneys are limited to prepping their clients, but otherwise play a limited role in the actual proceeding. The contrast to the adversary judicial to which we are accustomed--the attorneys for each side do all the work of gathering and presenting evidence to the body, especially cross-examining and challenging adverse witnesses, while the judge/jury sits back, takes it all in, then renders a decision--was especially notable yesterday. This hearing was all about credibility, requiring the sort of tough and pointed questions to test witness veracity. But it looked odd to have such questions coming from (essentially) the bench; the"judges" cannot make a fair and accurate ultimate decision based on the evidence when the questions suggest they already have made up their minds. And they cannot ask the necessary sharp questions of both sides, so as to draw out a complete picture of the credibility of all witnesses, when they already have made up their minds. We typically are more comfortable letting the attorneys, who already have a stake in one side of a dispute, do this sort of dirty work. Indeed, the inquisitorial system generally is less effective at challenging witnesses and exposing defects in their testimony.

Now, in fairness, this was a poor example of the inquisitorial process. Inquisitorial judges ordinarily do not call witnesses drug dealers or liars while questioning them. Inquisitorial judges do not challenge only one side and not the other. And inquisitorial judges do not make it so obvious they have made up their minds while gathering evidence. Indeed, yesterday may have been the worst of both worlds. It had the partisan (in the broad sense of committed to one side) and one-sided questioning of the adversary system, coming from the supposedly-neutral and unbiased decision maker.