Sitting In at The Daniel Penny Trial
The adversarial model in law, and competition generally in human life
I attended three days of the People v. Daniel Penny trial at the New York County Supreme Court; just to observe top-quality litigation, as a professional interest1. I was impressed by the sophistication of the proceedings, finding no apparent flaw to be exploited. I infer that this is a result of our legal system's adversarial model, played out over time; much like how competition in free markets results in hard-to-beat low prices.
I'll give three examples of this adversarial model in play, involving each of A. the defense attorney, B. the prosecutor, and C. the judge. We'll then discuss more generally adversariality, and its cousin competition. For they seem inevitable practical facts of the world, both natural and human.
A. The Defense Attorney had to change the tape he wanted to play
Just before the defense counsel Steven Raiser stood up to make his closing arguments to the jury, the prosecution objected. The prosecution didn't like one of the exhibits Raiser was going to use. They knew this because both sides had to tell each other what they are going to show before they were going to show it, and they found something they didn't like.
The exhibit in contention was an audio recording of a 911 call made at the time of the incident. Raiser wanted to play to the jury an edited version of it, in which portions of the call were removed. The prosecutor objected that this was potentially misrepresenting. The judge told Raiser that he can play the edited version only if he disclosed to the jury where the edits were, with time stamps. Raiser elected to just use the unedited version of the call.
B. The Prosecutor was accused of "testifying to the witness"
During the People's closing arguments, the prosecutor Dafna Yoran played a video of the incident shot on a bystander's smartphone. The video showed Penny on the subway car floor with Neely, and one of the other passengers, a woman, saying something into Penny's ear. This woman's face was turned away from the camera, but a woman's voice can be heard in the audio: "He's dying, you've got to let him go."
Yoran emphasized to the jury three times that Penny disregarded this plea made into his ear. Defense counsel Raiser objected. The woman's voice heard in the audio may not be that of the woman saying something into Penny's ear. It is quite possible that Penny did not hear those words. By asserting otherwise to the jury, the prosecutor was "acting as an unsworn witness, violating her oath".
To a lay observer like me, that was rather strong language. I did not see that objection coming. Judge Wiley denied Raiser's request for a curative instruction to the jury Re: this part of Yoran's argument, but preserved his objection—meaning that Raiser can take it up on appeal should the defense lose the case. Judge Wiley explained that his instructions to the jury will sufficiently cover Raiser's objection. The instructions will make it clear that the jurors are the ultimate interpreters of evidence, that they shouldn't just take the lawyers' narratives as fact.
C. The Judge's instructions were challenged
Even Judge Wiley was not immune to adversarial action. After both attorneys' closing arguments, he spent an hour giving the jury detailed instructions. These were in three parts: 1. General principles of criminal law, 2. Particular crimes being considered, and 3. Instructions on deliberations. Among the principles he elaborated upon in part one was the role of expert witnesses (e.g. the medical examiner). He said that expert witnesses are chosen by the respective attorneys, who are allowed to brief the witnesses about the case, and pay them for their time. He added that the jury had to determine for themselves if the witnesses' testimony was credible.
After Judge Wiley finished his instructions and dismissed the jury, defense counsel Raiser raised an objection. Raiser claimed Judge Wiley was not thorough enough in his instructions with respect to the expert witnesses. Judge Wiley should have added that it was not permissible for the attorneys briefing their expert witnesses to suggest siding with their side, paying for biased testimony. Judge Wiley dismissed this contention, but again said that the objection was preserved.
Even the judge had to be on his toes. For should he make a meaningful omission, a higher court on appeal can rebuke him and declare a mistrial. So all three parties in the proceedings had skin in the game.
Adversariality in Nature
While the courtroom was a showcase of (controlled) adversariality, in general life is not a competition. Or so goes the cliche. I can agree with that sentiment, but only in the narrow (albeit important) spiritual sense. For the phenomenon of competition can be observed just about anywhere.
There are a pair of majestic oak trees—pin oak—on each side of my town's City Hall. They lend weight and peace to the municipal institution. The same species of oak can be found at a state park an hour's drive away. Except you would be hard put to tell that the oak in the wild are in fact of the same species. Tall and skinny, with squiggly branches and few leaves, they look sick and diseased compared to the town trees. Why? Because competition.
Unlike planted town trees, forest trees compete fiercely with their closely packed neighbors. They try to outgrow each other to reach for the sunshine above the canopy. Their roots do battle in the soil, grappling and intermingling in an attempt to steal nutrients. Nature is brutal. Even for trees.
But surely the human world is more civilized? Perhaps adversarial win-lose situations as in the courtroom are not everyday affairs. But what is endemic, is competition.
Shaped by Competition
I play the piano as a hobby. Recently, I made plans to play at a dinner party for friends. This situation is as about as far as you can get from a boxing match. My challenge was not an adversary seeking to knock me out, but a bagatelle of Beethoven's—a short piece similar to Fur Elise. I just had to learn and practice it, and there are plenty of professional recordings that showed how it should sound.
As an amateur, I practiced towards a less sophisticated interpretation, playing it slower than the pros. But I knew my guests will have heard many renditions of Fur Elise, mostly played perfectly. And so they were going to have expectations that I'd need to meet... In the end, I decided that I'd need to work with a piano teacher to get the piece up to a performance standard, even if just for friends. I did play at the dinner-party—but a different piece that I had worked on much longer, at which I was (almost) competitive with the professionals.
Even if I was learning the Beethoven bagatelle to play for my own pleasure, I would work to meet a certain personal standard, a standard also shaped by competition. For where do my personal standards come from? They come from observing others'.
Competition is like entropy. It is not a deterministic law, but it is an unavoidable pattern. This should not cause us dismay, because quality and progress are the by-products. That is why, just like in the courtoom proceedings, it is difficult to find flaws in professional Beethoven recordings. And even amateur essays on Substack are typically well written.
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