Hypertechnical procedural protections mainly served the few who could appeal, not most defendants.

Evidence

But Pound’s description almost certainly does not fit the working law. Cases like State v. Owen were aberrations. “Hypertrophy” was a conclusion drawn from a tiny sample, mutations preserved in appellate records like flies in amber. Who gained from record worship, and narrow, technical readings of procedural rights? Only the few people that appealed. Ordinary farmers and small business people—​certainly not. Even less the dependent poor, urban workers, slaves and free blacks, minorities in general. The average trial was very different; in most instances, it was simple, short, and relatively informal. Moreover, it could be rough, quick, and dirty. The American legal order had a dark underside—​vigilantism, lynching, mob rule, police brutality. Procedural justice was a mirage in many places, and for many sorts of cases. Trials with political overtones often suffered from bias. Moreover, even the formal rights were, by the standards of the early twenty-​first century, not what they might have been. Thousands were arrested, tried, and sentenced without lawyers. Yet only a lawyer could make the Bill of Rights effective—​let alone cash in on rec­ ord worship and “hypertrophy.” — Lawrence M. Friedman, A History of American Law, 833

Categorization

• XREF: Directly complicates the earlier chapters’ portrayal of written colonial/federal procedural rights — the paper guarantees diverged sharply from working practice.