Volume 58

Gamesmanship and Criminal Process

by John D. King

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal litigation. Allegations of gamesmanship—the aggressive and strategic use of rules that violate some sense of decorum or culture yet remain within the formal rules of engagement—cut across both contexts. This Article examines what sports can teach us about gamesmanship in criminal litigation. 

After distinguishing gamesmanship from cheating, this Article compares several examples of gamesmanship in sport and criminal litigation. These examples address the Crawford right of confrontation, the Brady obligation to disclose favorable evidence to the defendant, and the Batson prohibition against using race in jury selection. This Article uses the jurisprudence of sport to propose a framework within which to view these claims in the criminal justice context. Recognizing the asymmetrical nature of the adversarial criminal justice system and the dual role of prosecutors as advocates and ministers of justice, this Article argues that prosecutorial gamesmanship poses a different and more acute danger to the legitimacy of the criminal adjudication system than does such behavior by defense lawyers. 

This Article concludes that gamesmanship is not only an inevitable part of any rule-based adversarial contest but also a positive and productive phenomenon that forces those invested in a system to define which values and objectives are fundamental to that system. Only when an instance of gamesmanship is inconsistent with these broader values or objectives should it be regulated or eliminated. 

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