fandomhigh | 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."

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Momoko raised her hand, a bit confused. "Does everyone get the same treatment? I mean, what if someone was caught in the act and arrested? Would they still get a free lawyer who tries to convince the judge that they weren't doing it? Even though they were caught at it?"

She wasn't sure how this worked. Was this what happened after they dropped the Gangrene Gang at the jail? "Isn't that kind of making what the police and me do unimportant?"

Alex laughed, not unkindly, at that. "Never," she said. "I have nothing but respect for the police, I promise you. We'd be nowhere without their hard work and dedication. And, on a personal note, some of my best friends are cops."

She also tended to date them, but that was beside the point.

"If someone is caught in the act, it's more like I'm the one who's nonessential to the process. I go to the defendant's lawyer and I say, you know we have him red-handed. Do you want to take a slightly lesser charge and save us all the time and hassle of going to court? When the police are kind enough to gift-wrap a suspect for me, I can usually convince their attorney to settle. I offer something minor, like possibly the chance of time off for good behavior, and they jump. They go to jail, and we all get back to work."

Now that was even more confusing. "But why would you make a deal with them? If we caught them doing something, like stealing from a store or something, shouldn't they have to be charged for that? Why should they get a deal and not have to be punished for what we know that they did, when someone else that we didn't catch in the act doesn't get to make a deal?"

Oooh, yes, some systems didn't have plea bargaining.

"Because it's a sure thing," she said. "If we take him to trial, there could be a technicality, one of the jurors could hang the jury, any number of things could go wrong. The defendant has the right to sit back and make the state prove its case. We're telling the defendant that it's in his best interest to waive that right, to save us all some time and effort, and offering him a very minor inducement to do so. The more evidence I have, the less I'll need to offer."

But? "If there's a possibility of a technicality, why have a trial? Why not just have a judge hear the evidence and give the sentence?"

"Judges might be corrupt," Alex explained. "The defendant has the right to a jury of his peers. Twelve average citizens to determine his fate. It makes it harder for the state to convict someone innocent. A judge might be biased, but twelve strangers pulled from the street are harder to unfairly influence."

Well, theoretically, anyway.

This was making her head hurt. How was this justice? "But we caught the guys red-handed!" Or, you know, green-handed. "They're not innocent."

"In this case," Alex said gently. "We won't, most of the time. And someone who was caught red-handed might have reasons for doing what he did. There could be mitigating factors that come out in court."

"Oh!" Okay that part she understood! Well, not the word 'mitigating,' but the idea that someone may have reasons to explain what they did.

"So the jury trial is where you can find out why someone did it, and depending on the reason, the punishment changes. Okay, that totally makes sense now."

"Exactly." Alex smiled at the girl. "We need to understand the crime, so we can give a fair punishment. Motive's a part of it, too. Someone who is placed into a horrible situation and acts impulsively, but badly, should be punished, but not as much as someone who clearly had time to consider his actions and still chose to offend."

Concepts of Justice and The Law [Period 4, Class #4, Jan 26]

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