The Adversarial System

When I was a child, I saw legal dramas on TV. What I heard over and over from these dramas was a rather pious pronouncement about the right of the accused to legal representation. Well, (DUH) of course people have the right to counsel. But how far is a lawyer supposed to go in defending his client? The message I got from these shows was as far as it takes. In other words, a lawyer was supposed to do whatever it took to defend a client even if justice wasn’t ultimately served. This obligation of the lawyer was like a categorical imperative.

townwopityI saw a movie called Town Without Pity (1961) about a teenage girl in a small town in Germany who was raped by American soldiers. The town is outraged and demands justice. The American military insists on trying the case according to military protocol. They would try it in closed chambers but the townspeople insisted on a public trial so they would be assured that justice was done. The lawyer picked to defend these men (Kirk Douglas) tried to talk the townsfolk out of the public trial. He did this out of “kindness” to the victim. He didn’t think she could take what he would “have to” do to her in defending his clients. He cared about the victim, you see. But he would still hurt an innocent girl if that’s what it took to defend his clients. The gist of the message the movie articulated was that the harm the lawyer’s very aggressive defense which involved dirtying up an innocent girl was really the town’s fault, not the lawyer’s. His duty to his clients was absolute.

The United States has what is called “an adversarial system.” The theory is that if both sides fight as hard as they can, the result will somehow be the best of each side. Very dialectical. As Hegel said, “Thesis. Antithesis. Synthesis.” The two opposite forces, thesis and antithesis, fight it out and the result is something new, different from either of these forces but better. You can also visualize it like a man and a woman producing a child. It’s a very elegant concept and it seems to follow nature. An adversarial system seems appropriate for the United States. Our whole government is based on checks and balances. Nobody is expected to be all wise or all honest or benevolent. Each side is expected to be biased. But, through the struggle of partisan opposites, a wise or benevolent outcome is expected. The three branches of the Federal government struggle with each other. Also, the states struggle with the Feds over power.  All have limited power and nobody has total power. It comes from a mistrust of what people could do when fully in charge. “Power corrupts. Absolute power corrupts absolutely.” Rather than assume people can really be impartial, two sides are allowed to be as biased as they want, relying on the dialectical process to sort out the truth. The judge acts like a referee to make sure the correct procedure is carried out but he is the one person assumed to be impartial.

Not every country uses the adversarial system. France, for example, has what is called “an inquisitorial system.” There, the forces of justice are expected to be impartial and fair. Under an inquisitorial system, all the officers of the court work together instead of against each other. They are supposed to look for evidence both for and against the accused. However, unlike in the adversarial system, the defendant is presumed to be guilty until proven innocent. I have heard that the inquisitorial courts are more lenient if the accused admits to his crime. This kind of reminds me of plea bargaining which looks like the inquisitorial method getting in through the back door.

In the adversarial system, the standard is “better acquit ten guilty men than convict one innocent one.” Sometimes it seems our courts are leaning way over backwards to protect the rights of the accused and to make sure he has a fair trial. That’s not always due to idealism on the part of the prosecutor. It’s also a way of preventing an appeal based on any kind of flaw found in the procedure enabling a defendant to overturn a conviction. When Riccardo Ramirez (the Night Stalker) was tried, he insisted on picking two defense attorneys that were very incompetent.  Since the evidence clearly proved his guilt overwhelmingly, the only way he could get out would be if he didn’t have a fair trial. The prosecutor took the responsibility of making sure his trial was fair since, even though he picked his own attorneys, the defendant wasn’t responsible for inadequate defense.

The inquisitorial system seems a lot more efficient. Our adversarial system is so costly that, even though it tries harder to be fair, the poor can still get the short end of the stick through inability to afford a good attorney. Legal Aid is supposed to provide a defense for the impoverished accused but they are notoriously inadequate due to lack of incentive and too much work. The adversarial system is like capitalism. The ones who have the most money and who pursue victory most aggressively are the winners here as in the rest of the economy. Who says justice is blind?

devilsadvocateAnother movie about the court system, The Devil’s Advocate, was made in 1997, a good time later than Town Without Pity. This movie turns a more critical look at the lawyer who will do anything to win. Like in the other, a girl is also accusing a man (this time a teacher) of molesting her. Although the girl is a lot younger than the one in Town Without Pity, Kevin Lomax (Keanu Reeves) manages to slut-shame her by exposing innocent reaching out in a humiliating manner. He wins the case and his client goes on to murder another little girl. Mr. Lomax’s no-holds-barred scorched earth path to victory is shown as evil, leading to the death of his wife and bondage to the devil, himself. In the end, he changes his direction and withdraws from the case, putting himself in danger of being disbarred. This is the “right” choice but disbarment seems like a pretty extreme alternative to belonging to the devil’s team.

bostonlegUltimately, the law decides how far an attorney is allowed to go in order to win his case. For example, an attorney isn’t allowed to suborn perjury. That means, he may not put a witness on the stand knowing he is going to lie. Of course, lawyers get around that by not asking certain questions while preparing the case. As one lawyer in Law & Order: SVU said, “I don’t have to know what really happened.” Raising reasonable doubt is sufficient to prevent a conviction. In Boston Legal, the lawyers regularly employ what they call “Plan B.” They raise enough suspicion on another person to cause reasonable doubt of their client’s guilt.

While some lawyers twist the law to suit their purpose and some defendants game the system, others are railroaded into prisons for profit with little representation. These prisons are often nothing more than legalized slavery. It’s rather amazing how earnestly people try to find a fair system while it remains devilishly elusive. We might as well try cases by tossing a coin. The results are just as random.

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