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fandomhigh2010-01-26 03:00 pm
glasses-justice.livejournal.com) wrote in fandomhigh2010-01-26 03:00 pm
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Concepts of Justice and The Law [Period 4, Class #4, Jan 26]
"Welcome back," Alex said. "It's good to see that none of you were irreparably harmed by this weekend's ... guests." The less said about that, in her mind, the better. "This week's topic is something called the Adversarial System. It's the system currently used by the United States and a number of other world governments, but it isn't in use in all governments, and even those of you raised under it may be unfamiliar with some of the nuances.
"The adversarial system is a judicial process by which each side gets an advocate to plead their case. In a criminal trial, the People as a whole are represented by a prosecutor - a lawyer specifically employed by the government. The accused is entitled to his own attorney. The defendant can choose any attorney he'd like, so long as that attorney is licensed to practice law, the attorney is willing to take the case, and the defendant can pay whatever the attorney charges. If the defendant can't afford an attorney, he will be assigned one, from a pool of government-employed defenders. Or the suspect can choose not to have an attorney and represent himself, but this is typically frowned upon for a number of reasons.
"In an inquisitorial system, the defendant was interrogated. A confession was the endpoint: the person is guilty, and so the case moves on to sentencing. However, the adversarial system does not stop with a confession. Perhaps the confession was obtained illegally, or under coercion. Maybe the confession was faked by an overzealous police department. The adversarial system seeks to confront these problems. Therefore, knowing that a person is guilty is not enough. The crime must be proven in a court of law, beyond a reasonable doubt, as decided by a jury of citizens. That jury will then determine the defendant's fate.
"This means, yes, that defense attorneys can and will take cases where the client is quite obviously guilty. And the attorney will still fight with every power available to her, every bit as hard as the government is fighting to convict the accused. Every legal maneuver with a fair chance of success, every technicality she can hammer, the works. If she feels she cannot defend the accused with the utmost zeal, she should recuse herself from the case and ask that a new attorney be granted. Ineffective legal counsel could cause a later court to overturn the conviction entirely, which puts everyone back at square one.
"Proponents of the system say that defendants should and must be defended this vigorously; if the prosecution's job is more difficult, then it will be especially hard for the government to convict the wrongly accused. A corrupt police force will be less likely to succeed at framing the innocent, and a victim of unfortunate circumstances will have a better chance for exoneration. It puts the burden of proof on the government, with all its associated weight, and not the accused, who is, no matter how dangerous, only one citizen.
"However. Public defenders are overworked and underpaid. Most defendants choose to hire an attorney, and one who does so presumably receives better representation than one who cannot. Especially talented attorneys will have increasingly high price tags. So the system becomes classist: the wealthy have a clear advantage over the poor. Furthermore, the ethics become complicated. Defense attorneys are seen as 'sleazy' by society. The perception is that they become rich by keeping criminals out of jail. Which is fairly unpalatable.
"Those same attorneys would argue they didn't keep their clients out of jail: they only forced the government to try harder to place them in jail in the first place, and the government failed to do so. Is that true? Let's talk about it."
"The adversarial system is a judicial process by which each side gets an advocate to plead their case. In a criminal trial, the People as a whole are represented by a prosecutor - a lawyer specifically employed by the government. The accused is entitled to his own attorney. The defendant can choose any attorney he'd like, so long as that attorney is licensed to practice law, the attorney is willing to take the case, and the defendant can pay whatever the attorney charges. If the defendant can't afford an attorney, he will be assigned one, from a pool of government-employed defenders. Or the suspect can choose not to have an attorney and represent himself, but this is typically frowned upon for a number of reasons.
"In an inquisitorial system, the defendant was interrogated. A confession was the endpoint: the person is guilty, and so the case moves on to sentencing. However, the adversarial system does not stop with a confession. Perhaps the confession was obtained illegally, or under coercion. Maybe the confession was faked by an overzealous police department. The adversarial system seeks to confront these problems. Therefore, knowing that a person is guilty is not enough. The crime must be proven in a court of law, beyond a reasonable doubt, as decided by a jury of citizens. That jury will then determine the defendant's fate.
"This means, yes, that defense attorneys can and will take cases where the client is quite obviously guilty. And the attorney will still fight with every power available to her, every bit as hard as the government is fighting to convict the accused. Every legal maneuver with a fair chance of success, every technicality she can hammer, the works. If she feels she cannot defend the accused with the utmost zeal, she should recuse herself from the case and ask that a new attorney be granted. Ineffective legal counsel could cause a later court to overturn the conviction entirely, which puts everyone back at square one.
"Proponents of the system say that defendants should and must be defended this vigorously; if the prosecution's job is more difficult, then it will be especially hard for the government to convict the wrongly accused. A corrupt police force will be less likely to succeed at framing the innocent, and a victim of unfortunate circumstances will have a better chance for exoneration. It puts the burden of proof on the government, with all its associated weight, and not the accused, who is, no matter how dangerous, only one citizen.
"However. Public defenders are overworked and underpaid. Most defendants choose to hire an attorney, and one who does so presumably receives better representation than one who cannot. Especially talented attorneys will have increasingly high price tags. So the system becomes classist: the wealthy have a clear advantage over the poor. Furthermore, the ethics become complicated. Defense attorneys are seen as 'sleazy' by society. The perception is that they become rich by keeping criminals out of jail. Which is fairly unpalatable.
"Those same attorneys would argue they didn't keep their clients out of jail: they only forced the government to try harder to place them in jail in the first place, and the government failed to do so. Is that true? Let's talk about it."