Rebecca Penfold
2015 British Pegasus Scholar Report
Having arrived in Washington, D.C. during the heart of the Fall, the next seven weeks as a Pegasus scholar saw me travel 13,000 kilometres of the “land of the free and home of the brave”, traversing the country via eight states.
My first experience of the U.S. justice system was in Indiana. It was at an Inn meeting, on day one, that I began to digest the wealth of differences between our systems. America has nearly 400 Inns of Court, founded upon our four historic Inns, yet their arrangement is more akin to that of our Bar Associations. The educational element of the meeting saw us compare the evidential rules of ‘impeaching’ a witness in the U.S. to that of attacking the credibility of a witness based upon a previous inconsistent statement. By the end of that first day I had come to realise two factors that held true throughout the scholarship: being hosted by the elite of the American Bar would make this scholarship really special; and there was so much to absorb and learn.
Other practical differences were evident early on. The U.S. court system does not differentiate between areas of law, rather jurisdiction: Federal and State. This took some getting used to, particularly due to the huge variance from state to state. Nonetheless, the States were united on one front: sheer awe and respect for our justice system and the Bar as a profession. Confusion often arose when attorneys questioned ‘what is a barrister?’ The legal training in America is wholly different: there is no equivalent of Bar School or pupillage. There is no differentiation within the profession that compares with our Queen’s Counsel; indeed there is no separation between litigators and advocates. In terms of court dress, my wig and gown enraptured all around the States: in Sacramento a former judge presented an annual award ceremony having donned my wig, whereas in the Mid-West I was asked where in my robe a gun pocket could be found and I rebutted the assumption that only male barristers wore wigs.
On the topic of women at the Bar, it was noted with admiration that my co-scholar and I were both female. I was honoured to meet the Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, noting the astounding constitution of her court: majority female and no white male. My proudest moment was the awe-inspiring Justice Ruth Bader Ginsburg commending us in the well of the U.S. Supreme Court at the annual black tie event, the ‘Celebration of Excellence’.
Our time as Pegasus scholars immersed us in the wider legal system of America. I visited the Capitol and spent time in the offices of Congressmen. A private tour of the White House, the Pentagon, the U.S. Treasury, OFAC and State Department are amongst my fondest memories. It was of huge interest to compare the deference the American courts pay to decisions of the government and executive, compared to our courts. We observed a Court Martial at Quantico Marine Base, visited a state penitentiary, watched arbitration and shadowed a mediator. Depositions were fascinating and very different to proofing a witness. Visiting the U.S. Supreme Court was enjoyable although I felt unable to engage with the appellate arguments due to the 30-minute oral advocacy time limit. These numerous opportunities within diverse areas of law truly enhanced my experience.
The influence of 17th century England has had an enduring impact on the modern legal system of America. Differences between our systems lie where America has preserved models from that era, such as the retention of certain legal vocabulary: ‘a demurrer’, ‘felony’, ‘misdemeanor’ and ‘attorneys’. A more striking example is jury selection, known as ‘voir dire’ in America.
In Virginia I watched in awe as a civil jury panel were questioned for hours, in order that the attorneys could select who would sit on a personal injury trial. I was shocked; firstly by the concept of a civil jury trial, secondly upon finding out that the jury would also determine the level of damages and thirdly by the probing and often intimate questions asked in an attempt to find bias. The second ‘voir dire’ that I witnessed was for a criminal trial, which again provoked my disbelief at the questions asked and the view that probing potential jurors could create a more favourable jury – but for which side? On this occasion, healthy debate followed and I sought to persuade the attorneys that their perception of our lack of jury selection might not in fact annihilate a fair trial, by referring to the annual statistics of the Ministry of Justice on rates of conviction. The rate is significantly lower in England than in the USA.
Another legacy from the 17th century is capital punishment. An enthralling area of law that, thankfully, plays no part in my day-to-day work as a criminal barrister. In St. Louis, Missouri we met attorneys who specialise in death row advocacy. It was sobering to hear the sheer determination leading to lengthy submissions to the Supreme Court up until the final hour, in the hope of saving a client’s life. It was also apparent that ‘mitigation advocacy’ is of far greater importance in America than in England. Perhaps this is because the jurors are deciders of sentence in a capital case and mitigation can mean the difference of life or death? Due to European restrictions on certain drugs, death by lethal injection has been limited and attorneys are now having to argue the merits of which method of killing their client is more humane – death by firing squad, death by electric chair or death by hanging? I found the concept of drafting such submissions particularly harrowing. On a more positive note, later in the scholarship we attended an Inn meeting in downtown D.C., this time not as the guests of honour, but in the audience of a man recently released from death row. All too often miscarriages of justice occur on both sides of the Atlantic. What sets England apart from America in this regard is that we have a body that deals specifically with this issue: the Criminal Cases Review Commission.
Another aspect I found particularly troubling is how certain judicial and prosecutorial offices are elected positions. I watched the sentencing hearing of a serious felony in Virginia, aghast at the speech the prosecutor delivered in opening, pointing and shouting at the defendant that he was a “wicked, wicked Jekyll and Hyde”, and reading a victim impact statement requesting the death penalty for this non-capital case. After court, I was informed that the rest of the audience was unsurprised at the Razzie winning performance of the prosecutor: he was due for re-election. I was also disappointed with how those accused of crimes are treated regarding bail. In America, a defendant’s liberty prior to trial is subject to bond. Unsurprisingly, most cannot meet the amount to secure their liberty, and the legal test found within the Bail Act for a custodial remand has no American equivalent. Furthermore, the process of bringing a prosecution is entirely different. In St Louis, the District Attorney showed us the ‘grand-jury’ room, where members of a jury hear untested prosecution evidence in secret, to enable them to reach a decision on an indictment. The American view on our use of the secure dock and the potential infringement of the presumption of innocence was also a topic of debate, a criticism which was difficult to concede when faced with an American defendant appearing in court, shackled by the ankles, handcuffed, wearing the orange jumpsuit, flanked by armed prison guards.
However, I hope that our criminal justice system can soon catch up with America in three distinct areas: listings, disclosure and technology. All cases are listed in line with Counsel’s availability and there are only fixtures - not a warned list in sight! This has the obvious advantage of continuity of properly prepared trial Counsel and certainty for those facing trial. American attorneys were appalled at returns and the late instructions criminal barristers regularly receive – questioning whether it fell within the realms of professional negligence. The rules of discovery require full and frank disclosure of all evidence to the defence well in advance of any trial. Whilst in Delaware, I watched in awe the evidence given by a forensic scientist in a racketeering trial. The court system allows for exhibits (in this case a gun) to appear on screens, with the witness having the capability from the witness box of drawing and highlighting relevant sections on the screen. Undoubtedly this aids jury comprehension.
In all, an enriching and unforgettable scholarship that simply cannot be put into words to do it justice. My utmost thanks to all those involved State-side: the organisation and hospitality by the individual Inns of Court, our hosts in Indiana, Illinois, Delaware, California and Missouri, and the American Inns of Court - you have opened my eyes to so much. My immense gratitude goes to the Pegasus Trust for providing such a brilliant opportunity to promote the junior bar of England and Wales. I now have the good fortune to host a fellow Pegasus scholar from the U.S., which I look forward to immensely.
Rebecca Penfold is a criminal barrister. A member of Drystone Chambers, London, and her practice focuses on criminal defence and local authority prosecutions. Prior to joining the Bar, Rebecca worked for the Criminal Cases Review Commission, a statutory body set up to investigate miscarriages of justice. She also gained experience as a paralegal at two law firms in the South of England, specialising in crime and prison law. Rebecca is a member and a scholar of the Honourable Society of the Middle Temple and a graduate of the University of Surrey, the Open University and the College of Law.