Trial Error and Misconduct.

Bennett L. Gershman LEXIS Law Publishing PO. Box 7587 Charlottesville, VA22906-7587 577pp., $95

Reviewed by Donald A. Dripps

"This is a book about the pathologies of the criminal trial," writes Bennett Gershman in the introduction to this volume.

Covering everything that can go wrong with a criminal trial in 418 pages is an impressive feat of compression, but by sticking to a concise summary of prevailing doctrine at every point, Gershman has produced a book that criminal lawyers-whether prosecutors, defense attorneys, or judges--will find quite useful.

The book is organized by reference to the various actors in the trial process. Chapter one deals with errors and misconduct by the trial judge, chapter two by the prosecutor, chapter three by defense counsel, and chapter four by the jury. A fifth chapter covers a miscellany of special issues, and a final chapter covers standards of review, preservation, and plain and harmless error.

Lawyers preparing appeals in criminal cases will find this book an excellent place to begin researching the issues. I say "to begin" because the brief space allotted to each topic permits only a quick rundown of the leading cases. These are typically federal and frequently from the Supreme Court, but the author also includes an impressive number of major cases from the states.

In every instance, however, the appellate lawyer will need to consult local authority. Because this is much easier to do after the basics have been laid out, the strength of Gershman's study lies in collecting the fundamentals applicable to criminal appeals in a single, accessible, yet comprehensive source.

This is a book to be consulted about particular problems, not read through. Although Gershman himself declines to take any broad view, if, as his brief introduction intimates, he shares the usual academic biases, nothing in the text proves it. The introduction draws a distinction between error (unwitting deviation from legal requirements) and misconduct (knowing deviation from legal requirements). While the distinction does occasionally reappear, for the most part it gets lost in the shuffle of particular topics.

Two sections of the book should prove especially useful to practicing criminal lawyers. Trial lawyers who expect to deal with issues under Batson v. Kentucky (476 U.S. 79 (1986)) will find Gershman's exposition a succinct guide to acceptable and unacceptable explanations for peremptory challenges of minority group members of the venire. Criminal appellate lawyers can count on dealing with ineffective-assistance-of-counsel issues, and Gershman gives a good, up-to-the-minute treatment of ineffective-assistance law.

Although there are no obvious erroneous doctrinal assertions, nonetheless a price must be paid for brevity. A 14-page discussion of expert testimony in criminal trials will not convey as much information as can be found in a specialized evidence treatise. Two pages on the role of prejudice in federal habeas corpus law probably does more harm than good. The author gives a snapshot of prevailing doctrine, accurate at the moment it was taken, but he does not permit himself the luxury of history, prediction, or critique.

Nonetheless the book reveals by implication a profound change in the legal system. In this no-nonsense, nuts-and-bolts exposition of contemporary criminal procedure, the exclusionary rule figures hardly at all. The author does mention the due process limit on untrustworthy identifications, but this is an atypically weak discussion as it omits any examination of right-to-counsel limits on identification evidence. He does not discuss what practicing lawyers surely know: Even when an out-of court identification is excluded, an in-court identification at trial will typically be deemed independent and so admissible.

Neither Mapp v. Ohio (367 U.S. 643 (1961)) nor Miranda v. Arizona (384 U.S. 436 (1966)) appears in the table of cases. There are several possible explanations for this striking omission. One is that the standard criminal procedure treatises cover the suppression motion more than adequately. Yet Trial Error and Misconduct touches on many other well-covered topics, including expert testimony and ineffective assistance of counsel. Perhaps a volume on the criminal trial simply should not cover pre-trial suppression rulings. The book, however, does deal with evidentiary rulings, often made in limine, as well as with pre-trial investigation by defense counsel and pre-trial discovery generally.

Alternatively, Gershman could be telling us that serious, practical lawyers do not waste their time on suppression motions anymore. Some will applaud, and some condemn, the shift in judicial scrutiny away from official misconduct that produces reliable evidence. If that shift has gone so far as to make the suppression motion a topic good defense lawyers can safely neglect, the change is perhaps too big a story to have been left to implication.

Donald A. Dripps is a professor at the University of Minnesota Law School.