No free man shall be imprisoned, dispossessed, outlawed, or exiled
except by lawful judgment of his peers (Magna Carta)
A court must do a great deal of work before a trial even starts, and the judge or magistrate is the leader. In the early phases, the judge acts as a negotiator, and most decisions are reached by conferences held in the judge's chambers. These pretrial decisions generally consist of the following:
whether or not to issue (additional) search or arrest warrants
whether or not to authorize (additional) electronic surveillance
whether or not to continue the pretrial detention of defendants
consideration of the amount of bail, or if bail is even a possibility
consideration of any pretrial motions (continuance, discovery, venue, suppression, severance)
consideration of pleas and any plea bargain
As the date approaches for trial, the judge acts as an administrator, and must handle the calendar of cases, called a courtroom docket. This not only schedules the trial, but manages the paperwork and time that various courthouse employees must put in on the case. Most judges have staff personnel assigned to help them, and a few courts have special professionals known as court administrators who handle budgets as well as case flow. New Jersey created the first state-level court administrator in 1948, but the movement didn't catch on until the 1970s. The federal system has had courtroom administrators since 1939.
At the trial, the judge acts as a referee and teacher. They are expected to be an impartial referee between the two opposing sides of a case. They are not supposed to be too closely interested in the facts of a case, but in how legal (and ethical) each of the two sides are behaving. For this reason, it is sometimes said the judge is a trier of law. Throughout the trial, and especially at the end, the judge acts as teacher for the jury (a jury is sometimes called the trier of fact), explaining complicated points of law to the jury, and at the end, giving them an hour or so mini-lesson in law before the jury deliberates on its verdict. This mini-lesson in law is called the jury instructions, and a judge must be very careful with these so as not to suggest the jury vote a certain way, but also inform them of what evidence needs to be weighted more heavily.
Perhaps the most serious problems facing the courts today are backlog, delay, and congestion. Each of these seriously threatens the quality and dignity of justice because courts get behind in their work and then try to speed up and process as many cases as possible. Courts aren't designed to work well under stress, and when they try to work rapidly, all sorts of careless mistakes happen in what is called assembly-line justice. First of all, busy prosecutors will drop cases for no reason at all (this is called nolle prosqui) in addition to cases where they think the police have obtained insufficient evidence. It is suspected that most nolle prosqui cases involve situations where the prosecutor doesn't think a conviction is a sure thing, or slam dunk. Secondly, busy courts tend to increase their rates of plea bargaining. In addition to the usual sentence bargain which involves a lighter punishment, busy courts may increase the number of charge bargains, which means a serious crime the person is charged with gets renamed as a less serious crime in order to produce a plea bargain and get the case over with. Both practices jeopardize the safety of the public. In addition, a stressed-out court component has implications for the rest of the justice system. Police will make more or less arrests depending upon how busy they perceive the courts to be. If the courts are too busy, police may let minor offenders go free, but the unlucky ones will experience extra police pressure on obtaining a confession, because police perceive the busy prosecutor only wants slam dunk cases. Technology, specialty courts, and mediation or dispute-resolution centers are hoped-for ways of alleviating stress-out court systems.
About 35 states have such a stressed-out court system that it's not uncommon for jailed defendants awaiting trial to get "time served" (while in jail awaiting trial) as their one and only penalty when they do come up for trial (Gaines & Miller 2003). This is simply a travesty because such people are often not in jail so much for dangerousness, but because they couldn't come up with bail money. They often only have a public defender to represent them, and most public defenders in America's big cities may handle as many as 200-400 clients at a time (twice the average caseload of any caseworker). Approximately 80% of everyone accused of a felony in America makes use of a public defender. Public defenders are only paid an average of $45 an hour, far less than the $200-400 an hour a private lawyer would charge. It's difficult to prove a lawyer is incompetent. The Strickland test (from Strickland v. Washington 1984) requires showing that the lawyer's behavior was deficient and, additionally, showing that this deficiency caused a losing case. The second part of this is difficult to prove, as it points back to the evidence, not the lawyer's incompetence.
THE ADVERSARY SYSTEM
A misunderstanding of the adversary system is probably the most important reason that the general public is confused or disheartened about the criminal justice system. Because of the adversary system, some opinion polls report that the public has more confidence in garbage collectors than lawyers. The public's image of justice doesn't recognize a lawyer's oath or obligation to protect the adversary system. True justice is associated with truth; adversarial justice is all about winning--of course, winning within the confines of rules about procedure and evidence. An adversary system has four basic components: (1) a neutral decision maker, either a judge or jury; (2) rules on the presentation of evidence; (3) rules about the procedures to be followed; and (4) two sides opposing each other where there is only one clear winner. The assumption, and admittedly it's a big assumption, is that in this setting, truth will emerge as a by-product of opposition between two intensely partisan sides, each of whose goal is to win. Winning is, therefore, everything; and it's this atmosphere that gives lawyers an image many of them hold dear--that of prize fighter or gladiator. Truth is synonymous with victory; to the victor goes the spoils. A lawyer is expected to be an advocate for their client, guilty or innocent, to save their client by any means necessary. They should not consider any harm they bring to others as long as they are preserving the adversary system. Lawyers don't lie; they engage in dissimulation; they use dramatic devices, and rhetorical flourishes.
For what it's worth, the adversary system is better than most alternatives, particularly what is called the "inquisitorial system," used in many European and Asian countries. Preservation of the adversary system as it now exists is a conservative force in America that severely limits the chances for legal reform, and its preservation is intended to prevent the possibility of ever becoming an inquisitorial society. Few other alternatives, outside of mediation, are regularly explored. Many of the rules are designed to favor the defense because the prosecution side has so many more advantages and financial resources. Prosecutors are powerful people even in inquisitorial countries, where judges are usually all-powerful. The methods a prosecutor uses are rarely questioned because it's further assumed that prosecutors are out to seek justice, not just obtain a conviction. Defense attorneys, on the other hand, hold to the motto of "deny everything, admit nothing, demand proof." Visit the National Legal Aid and Defender Association for a list of all the things a zealous defense lawyer should do to save their client. You'll be amazed at all the things a lawyer can do on behalf of their client.
Movies like Liar, Liar, which starred Jim Carrey, portray the problems of a lawyer forced to tell the truth. Likewise, the Devil's Advocate, which starred Al Pacino, portrayed lawyering as the devil's work. Such media portrayals only serve to feed public misconception about a lawyer's dedication to uphold the adversary process. It's more complicated than any movie could portray. A lawyer's obligation is listed below. I'll leave you with it to determine for yourself if it's an outmoded, conservative relic--or part and parcel of human rights protection:
To preserve the adversary trial system as it now exists and to fight for the preservation of the rights of individuals; to resist any efforts to curtail the rights of persons who have been injured to seek redress in a court of law; to continue the education of the plaintiff's bar in all phases of trial practice; and to safeguard and defend the advocacy system so that the rights and remedies of all individuals are protected. In other words: TO SERVE AND PROTECT THE PUBLIC.
Source: Alabama Trial Lawyers Association.
THE BAIL SYSTEM
The most important part of a defendant's initial, or first appearance before a magistrate, or lower-court judge is the determination of bail. A few jurisdictions bypass the first appearance and proceed directly to arraignment, and a few other jurisdictions add the step of a probable cause hearing, but the bail hearing (usually done within 48 hours of arrest according to the McNabb rule (from McNabb v. U.S. 1943), is a matter of determining the economic resources of a defendant. These resources, after all, determine if the person can afford a private attorney or must have a public defender. It is also a point at which many defendants are still unruly, intoxicated, or uncooperative. In such cases, the bail hearing is held in their absence. BJS figures for 2001 report the average amount of bail for a violent crime is usually $25,000 or more; for property crimes $10,000-25,000; for drug crimes $5,000-10,000, and for public order offenses $5,000 or less. Defendants charged with murder are frequently denied bail.
Traditionally, the original purpose of bail was to ensure the person's return to court. In other words, the risk of flight was the sole concern. However, since the 8th Amendment doesn't guarantee bail, but just prohibits excessive bail, and offenders coming before the courts are able to have their dangerousness assessed fairly reliably, the modern purpose of bail is to minimize risk to public safety. Nowadays, if the charges are serious enough, and the defendant has a criminal record with few community ties, chances are that bail is denied, and the person is kept under pretrial detention. Defendants facing minor charges, with no criminal record and strong community ties, usually receive pretrial release, also called release on recognizance (ROR), which is a promise that they will appear in court later when required. ROR was invented in the 1960s in an experiment called the Manhattan Bail Project where it was found that only 1% of minor offenders with residential and occupational stability skipped out on their promise. Some research today finds the skip rate to be about 12% for such offenders.
Those who have to post bail are of more concern. Many states utilize the Illinois Plan, which requires only 10% of the amount of bail be put down, but then most of this amount is eventually eaten up by lower-court fees. Some places require more than 10%, up to the full amount, and such defendants often have to convert property over as collateral or deal with a bondsman. The federal court system tends to use property conversion or property bonds, and state court systems tend to rely on bondsmen and bail bonds. The way a bail bond works is like a secured loan. The defendant obtains the services of a bondman by paying 10-15% of the total bail amount directly to the bondsman up front as a fee. The bondsman then covers the whole bail amount. If the defendant "skips" or "jumps", the bondsman has unlimited powers to pursue, arrest, and forcibly extradite the person without regard to due process and without interference from law enforcement. The practice is more than skip tracing, and is more like bounty hunting, and one often hears cases that go horribly wrong with someone shot dead.
THE GRAND JURY
The Jon Benet Ramsey case brought public attention on the institution known as the Grand Jury in criminal justice. Nothing came out of the grand jury deliberations in that case, and it appears that the modern role of the grand jury is rapidly emerging into that of an independent investigating body. A grand jury is composed of private citizens, usually twenty-three persons, although some states have reduced the number, and all states usually follow the federal rule of a quorum of sixteen. They decide things by majority vote (twelve votes constitute a majority). Their deliberations are secret, and they are not bound by the usual rules of evidence (which means they can consider hearsay evidence). The defendant and his/her attorney have no right to appear in front of a grand jury. The reason why due process safeguards are so relaxed is because the grand jury represents the citizenry, not agents of the government. It's the classic case of being judged by one's peers, and in fact, the accusatory role of the grand jury is well known in reflecting the community's conscience when it comes to naming corrupt government officials and organized crime figures.
The function of the grand jury is to hear evidence presented by the prosecutor and to decide whether there is probable cause to return the indictment presented by the prosecutor. If they return the indictment, that is called a true bill. All states except Pennsylvania grant their grand juries the power to indict. The indictment is an official document stating the name of the accused, the charge, and the essential facts supporting the charge. By contrast, when a judge is used in the alternative procedure, known as a preliminary hearing, the judge returns what is called an information. Grand juries have been criticized for being a "rubber stamp" for the prosecutor. Grand juries are not bound by any decisions of a magistrate at any preliminary level. Once a grand jury is convened, it may initiate its own investigations. When a grand jury proceeds on its own via its own investigation, it returns a presentment. The presentment is an official document asking the prosecutor to prepare an indictment. Grand juries have the power to subpoena witnesses and mandate a review of books, records, and other documents crucial to their investigations. After an indictment or information is filed with a court, an arraignment is scheduled, unless of course, there is a challenge about the defendant's competence to stand trial at this point, which essentially throws the process into a round of forensic or medical examinations that temporarily delay the trial or pieces of the trial. Insanity claims don't delay trial, as the examinations are often quickly done, and become the basis of the trial, with the burden of proof on the prosecutor to prove sanity.
The definition of an arraignment is the first appearance in a court with the jurisdiction to conduct a trial on the specific kind of criminal case at hand. Usually, this is a upper-level court, with a powerful judge, one who closely follows the Rules of Criminal Procedure. Such a judge only wants to hear one of two things out of the defendant's mouth when asked "How Do You Plea?" -- guilty or not guilty. A few offenders will try to plea no contest (nolo contendere), but this is rare, and only used to protect someone when there is a simultaneous civil lawsuit going on. 90% of the time, a guilty plea is entered on the basis of a pre-established plea bargain, and another 4% simply plead guilty. Only 6% of defendants plead not guilty. Those who plead guilty are sentenced there on the spot, receiving what is known as the "going rate" for their offense in that jurisdiction. Rules prohibit plea bargaining from being conducted in open court during the arraignment, but sometimes a short continuance is granted for the purpose of putting one together at the last minute, and some judges do allow open court last-minute negotiation. Rules also require the judge to inquire if the defendant: (1) understands the rights they are forfeiting by pleading guilty; (2) is making a voluntary plea; (3) is making their plea on the basis of a plea bargain agreement; and (4) has a factual basis for making their plea.
The last of these inquiries is important, as it concerns the judge attempting to find out whether or not the defendant is actually (factually) guilty or not. It is the thing that comes closest to truth. Unfortunately, because of the nature of plea bargaining, there may be no resemblance at all between what the person did and what the plea is for. For example, a crime of rape might be reduced to a crime of assault. Most plea bargains involve minimizing the social stigma of what a person really did, and plea bargains are chosen on the basis of the going rate for punishments rather than for accuracy in description (Sudnow 1965). Theoretically, there is a doctrine called the principle of lesser included offenses, which means that there should be some relationship accuracy. A driving while intoxicated crime, for example, should only be reduced to something involving automobiles, for instance. However, most states have a long way to go toward standardizing what counts as lesser included offenses. In addition, states with strong victim rights legislation often require the victim to be notified of any plea bargains that change the name of what a person did, and give the victim a right to complain about it.
PROSECUTION AND DEFENSE
Prosecutors work under a constraint known as the speedy trial requirement. The right to a speedy trial was guaranteed by the 6th Amendment, made binding on the states in Klopfer v. North Carolina 1967, made a non-fighting right in Barker v. Wingo 1972, and formalized with the Federal Speedy Trial Act of 1974. It is essentially a way of starting and stopping the clock. A federal prosecutor has 30 days from the date of arrest to obtain an indictment or information, and 70 days after that to go to trial. This means a guarantee of trial in 100 days (the federal standard). States use a 180 day standard. Delays attributable to the defendant or their defense attorney (such as motions for continuance) stop the clock from running. Delays attributable to the prosecutor do not stop the clock. This inhibits prosecutors from making too many pretrial motions. Exceptions include a 30-day extension to assemble the grand jury when not in session, and a 110-day extension for locating missing witnesses. The prosecutor is not an employee of the court. They are only a representative of the government. People who are employed by the court include the judge, the court reporter (who must type 200 words a minute), the clerk of the court, the bailiff, and the jury (who are temporary employees).
Prosecutors can be considered the chief law enforcement officers of their jurisdiction. They can investigate even police chiefs and sheriffs, and often do in cases of corruption or organized crime. They can launch vice investigations, and often have their own small staff of detectives or investigators. They can order crime lab tests. Prosecutors can change the charges against a defendant, mostly for reasons the police have overcharged someone, or charged them with the wrong crime. Cross-training the personnel of police and prosecutor offices so each party knows what are the most appropriate charges in most cases is the hallmark of a task force approach known as the Maine approach. Generally, a prosecutor's office will employ a number of attorneys who assist the chief prosecutor. If the office is organized so that different assistants specialize in working on different parts of the case, this is known as zone, or horizontal case management. If the office is organized to that each assistant is a generalist who handles each case from start to finish, this is known as fluid, or vertical case management. In recent years, vertical case management has become fashionable. Prosecutors are not supposed to charge someone with more than the evidence allows, a doctrine that results in a great deal of prosecutorial discretion, where charges are lessened or dropped. Prosecutors also cannot engage in prosecutorial vindictiveness, which occurs if they act harsh simply because a defendant has exercised their right to a time-consuming jury trial. They cannot legally consider court backlog or judicial leniency as factors in deciding whether to drop a case or not. They cannot ethically consider community sentiments against a defendant who has achieved "celebrity" status in the media, but it would be naive to think that prosecutors don't consider their political future at stake during such times. Politically, most prosecutors look upon their job as a "stepping stone" to higher office, as they often want to run for Governor, Congress, or the Presidency one day.
Prosecutorial discretion has been studied extensively for the reasons why some cases are dropped and others are prosecuted (Jacoby 1979). These reasons are sometimes called the prosecutor's philosophy, or charging patterns, and there are four of them: (1) legal sufficiency, where the presence of evidence supporting both act and intent means the case is prosecuted; (2) system efficiency, where weak cases are screened out and strong cases may involve overcharging in order to force the system into plea bargain mode; (3) defendant rehabilitation, which describes those rare cases when the prosecutor thinks a defendant can be treated or cured; and (4) trial sufficiency, which is the same as the winnability of the case, or what makes the prosecutor look good. It is estimated the first and fourth patterns are the most common. Prosecutors can also grant immunity, and frequently do so, if they think a defendant makes a useful informant in some case against a more important criminal.
Defense attorneys operate under the presumption (premise) that anyone charged with a crime is innocent until proven guilty, a presumption that's supposed to characterize the entire criminal justice system. Its purpose is to enable a vigorous and zealous defense even for clients that defense attorneys know are guilty. The Sixth Amendment guarantees the right to effective assistance of counsel, not just any counsel. The Supreme Court has also extended this right to any critical stage of the process, including interrogation, lineup, preliminary hearing, first appeal, and probation and parole revocation hearings. Juveniles also have a right to counsel. The effectiveness of counsel, in practice, is determined by who the lawyer knows, not what they know, and most clients are better helped by courthouse regulars rather than high-priced private attorneys. Any defense lawyer, however, can visit the local jail at all hours of the day or night. Legally, effectiveness of counsel is determined by the Strickland test (from Strickland v. Washington 1984), which requires a review finding the lawyer did not only advocate ineffectively, but that their ineffectiveness led to the conviction. It is sometimes easier to find instances of reversible error on the part of a judge's mistake than to claim ineffective counsel.
Defense attorneys are either privately hired or publicly hired. A defendant is allowed to have as many private defense attorneys as they can afford. They can also represent themselves (pro se), but this is strongly discouraged. A defendant is entitled to have a public attorney hired for them, but only if the maximum possible punishment exceeds 6 months (the same being true for the right to jury). When a defendant requests a public attorney be hired for them, the court examines that person's finances to decide on eligibility for an indigent defense program, these having been required since Gideon v. Wainwright (1963). One type of such program is the assigned counsel system, which calls upon the good graces and volunteer time (pro bono) of attorneys in the area. This is the oldest and at one time, the most widely used system of indigent defense (today, only 23% of jurisdictions use it exclusively). Bar association ethics requires lawyers do volunteer service anyway. The court usually reimburses this kind of attorney, but it is far less that what they are used to making, and there certainly isn't any money available for independent investigators or lab tests. The second type of program is the public defender system, which is better equipped to conduct separate investigations, but is overworked and used exclusively in 28% of jurisdictions. Women and minorities are somewhat overrepresented among the ranks of public defender offices. The third type of system is the contract attorney program (used in 8% of jurisdictions), which involves the court making semi-annual contracts (lowest bid accepted) to retain the services of a large firm or consortium of firms to supply lawyers when needed. The rest of jurisdictions use some combination of programs.
THE JURY SYSTEM
The Constitution requires that a person be tried by a jury of their peers. However, the Supreme Court has never interpreted this literally. Instead, a jury pool (called a venire) is selected from a broad base of citizens who are representative of the community. Registered voter lists, a driver's license database, or local phone directory are often used for the venire. A common criticism is this excludes some people who are too poor to own a car or phone. When a person is called up for jury duty from the venire, they have the opportunity to decline, but each jurisdiction sets legitimate reasons and illegitimate reasons for declining to serve. Illegitimate reasons include that it's not worth it for $40 a day. Legitimate reasons include illness, conviction of a felony, not being able to comprehend English, and being in a public service occupation. A rather large group of potential jurors are called, and then questioned by each side for their fairness (this questioning being called voir dire). Eventually, the group will boil down to 12 persons and no less than 2 alternates. This number of jurors is not a Constitutional requirement, but a tradition. Some states allow juries as small as 6, 7, or 8.
There are two kinds of questions during the jury selection phase of voir dire. Each side, prosecution and defense, can ask an unlimited number of questions about anything that might bias the potential juror. These are known as challenges for cause. For example, a juror might be excused from duty if they say they were once a victim of a crime similar to the one in this case. Another type of question is called a peremptory challenge, and involves any subjective hunch or feeling that the juror just isn't "right" for this case. The basis for asking such a question may only be known to the attorney asking it, but all the attorney has to say is they didn't like the answer, and can have this juror excused from duty. Attorneys are only allowed a limited number of peremptory challenges.
There are other issues associated with the jury system. One of these is scientific jury selection, an emerging technique that allows lawyers to use correlation statistics from social science research to pick which type of juror would vote for conviction or acquittal. Wealthy defendants can also use a technique called a shadow jury, which consists of persons privately hired who demographically match the real jurors, and the defense can try out various arguments on them as practice before going in front of the real jury. All these techniques, and many more involving consultants and presentation aids, fall into the emerging field of litigation support, for which companies like DOAR, Inc. is an industry leader. In recent years, sequestered juries, like gag orders, have become an issue because jurors seem to be more willing to talk to the media and/or write a book or something after their experience. Race and juries are still an issue because in some states, 95% of the time, the only black person in the courtroom is the defendant. The jury system as we know it may be an outdated institution, as Rothwax (1996) and others (Hernandez 1996) have argued. Many critics have argued for replacing the lay person jury system with one characterized by professional jurors. In conjunction with improved technology, a professional jury system would go a long way at addressing numerous problems that courts presently face or will face in the future, such as the need for bilingual translators.
THE COURT REFORM MOVEMENT
Alexis de Tocqueville once observed: "The courts of
justice are the visible organs by which the legal profession is enabled to
control democracy. The judge is a lawyer who works with lawyers to maintain
the status quo and aggressively denounce any legal reform that would
strengthen the Constitutional rights of the American people. Lawyers are
united in their common interests and intent to maintain the status quo at all
times." Too often when the guilty go free or the innocent get convicted,
Americans chalk it up to chance without considering whether the system is at
fault. After all, it's the "best" legal system in the world, isn't it? Or if
it isn't the best, it's the only one we got, and every patriotic American
ought to support it, right? Well, actually no, on both counts. England runs a
far better adversarial system than America does (with solicitors investigating
cases and barristers trying them), and it's the duty of every American to cast
a critical eye on their legal system. A dynamic society must continually
reevaluate its institutions. They exist to serve us, not to be served.
Legitimacy is not a tenure to be presumed.
Oliver Wendell Holmes, the famous Supreme Court justice, used to admonish young, idealistic lawyers by saying "This is a court of law, young man, not a court of justice." It must be remembered that judges and lawyers don't define "justice" in substantive terms. They define justice procedurally. If the procedures followed are fair, they think the outcome must also be fair. This is all that is legally meant by doing justice, or seeing that justice shall be done. The American courtroom was never intended as a forum for social reform. It's badly overextended as a panacea for social, economic, and political problems. Yet Americans seem to think that litigation is the answer for just about anything, and they expect their lawyers to use every dirty trick and handball tactic in the book to advocate on their behalf. It's hypocritical to expect a more just society when we individually expect whatever injustice suits our purposes.
In a nutshell, what got us to where we are at today is the notion of trial by ordeal. There were many ordeals in colonial America (fire, hot water, poison, combat). What they all had in common was some physical trauma inflicted upon the accused, followed by some evaluation of the bodily reaction. One reaction indicated God's determination of guilt; the opposite reaction innocence. Generally, if the defendant healed quickly, the verdict was innocent. Today, we know from biocriminology that rapid healing is associated more with guilt than innocence, but the point is that even back then, justice was firmly established as procedural. God was the actual decision-maker; people only established the tests by which God's decisions were interpreted.
However primitive, ordeals were an improvement over the hue and cry system, in which posses of townspeople were hastily put together to hunt down and kill perpetrators on the spot. The more civilized ordeals were usually accompanied by a process of compurgation, or oath-taking. A defendant could defeat the claims against him if he obtained the required number of compurgators (usually twelve) who would swear to his innocence. Procedural effectiveness was determined by how sincere the oath was sworn. If a compurgator stuttered or vocalized any errors during their testimony, it was taken as a sign of the defendant's guilt. This process eventually became the basis of evidence rules on how lawyers could or could not rattle and chastise witnesses on the stand. The side with the least-rattled witnesses wins the case, today as in yesterday.
Lawyers like to think they got involved in the system from the ritual of trial by combat. This practice was brought into Anglo-American law by William the Conqueror during the Norman Conquest. The basic idea is that litigants could hire mercenaries or "champions" to fight a battle for them. Thus arose a profession of "hired guns," roaming the country for clientele. Lawyers today think of themselves as professional adversaries or "champions" engaged in a battle of "hired guns."
The jury system, as we know it, is also a Norman-French rather than English development. Juries in England were essentially spies for the King or Queen. The word juror comes from the French jure, which means "sworn" to truth. America, however, kept the number of jurors as twelve in deference to English methods.
The role of judge must be understood by contrast with the inquisitorial system (which existed throughout much of Europe and is also known as Romano-Germanic law). Anglo-American law is based on the adversarial system (which existed in England and America and has Hebrew roots). Briefly, inquisitorial systems conduct trials as an inquest by the state. The defendant is already presumed guilty, the trial is mostly a sham, and judges are expected to take an active part in the persecution of the accused. Under the adversarial system, a defendant is presumed innocent until proven guilty, and judges are expected to be impartial and disinterested observers.
CHARACTERISTICS OF THE ADVERSARY SYSTEM
Presumption of Conflict -- The court system is designed
to only handle conflicts, or disputes (as they are called) which cannot be
resolved by means other than adversarial proceedings. Once the dispute is in
court, it becomes the property of the court and it does not matter if the
parties to the dispute are able to settle their differences out of court. The
parties are bound to obey any declarations by the court in resolving a
dispute. Courts are under no obligation to inquire if their resolution solves
the underlying problem or not.
Party Autonomy -- The parties in court are expected to frame their dispute in legal terms, not everyday language. It is the responsibility of opposing parties, not the court, to see to it that evidence, testimony, and information flow reaches the decision maker. If it becomes apparent that the real source of conflict is something other than the case before the court at present, judges are not allowed to expand the parameters of the trial to those issues.
Zealous Advocacy -- Parties are to be represented by attorneys who not only can but should do everything to advance their client's position. The lawyer's advocacy should be energetic but not illegal or unprofessional. Lawyers have an obligation to their client as well as one to their own interests in remaining an upright person who can earn a satisfactory living.
Judicial Impartiality -- Judges must avoid even the appearance of partisanship. They should not pose their own questions or suggest which witnesses to call. Their role is limited to that of a referee overseeing adherence to rules of procedure and avoiding adverse publicity. They should neither endorse nor shy away from popular or unpopular opinions for the sake of their political careers.
Lay Jury -- Juries will always consist of amateurs untrained in the law with no special fact finding skills. A jury of one's peers means jurors representative of the community. Lawyers and judges are under an obligation to ferret out any biased jurors. When it is time for a verdict, the judge must instruct the jury on the law, and the jury must apply the law to the facts as it finds them. Jury deliberations are secret, and they need not explain their methods of deliberation, their fact finding, or how they applied the law.
Zero Sum Remedy -- There is always to be only one winner and one loser. There are no shades of black or white, right or wrong. All parties must be sent away either victorious or defeated. Courts are not allowed to distribute gain or loss other than by fully awarding complete gain or loss. All decisions in terms of remedy are final; only procedures can be questioned afterwards on appeal.
Adversarial-style combat may be one way to justice, but in a larger sense, it institutionalizes and sublimates our battle instinct. The legal system's greatest contribution to society may be that it's a fairly decent and civilized substitute for bloody fistfights. In this sense, the legal system serves much the same purpose as the Olympic Games, which were instituted to avoid battle among nations. It provides a soapbox or arena to showcase the talents and creativity of our best litigants, or modern-day gladiators.
THE SPECTACLE OF JUSTICE
The United States has more lawyers per capita than any
other country in the world. A lawyer is supposed to be your friend as well as
willing to do battle for you. Courtrooms are supposed to be user-friendly.
Alexander Hamilton, in Federalist Paper #83, referred to our court system as
the friendly aspect of liberty. An important subset of this friendliness
aspect is the entertainment value. Going to court is always supposed to be a
matter of taking your chances, at winning the prize. This unpredictability is
why 90% of cases get plea-bargained before going to court. Judge Roscoe Pound
called it the sporting theory of justice, and the dean of evidence law, John
Wigmore, called it legalized gambling. Others have called it a game of chess.
The most ironic thing about it is that people want to win so bad they will use
the law to beat the law. Few games offer that much manipulation of the rules.
The most obvious defect of our legal system is its incapacity for truth-finding. The most common justification for our present system is that the truth will emerge when two sides fight it out down to the last detail. However, does it really make sense to believe that truth will emerge when two sides fight as unfairly as possible? Fight does not necessarily lead to truth, only honor and valor. Heated arguments don't bring out the truth, and ugly partisanship has no place in the courts, just as it has no place in law-making or politics as a whole. Courts are inherently political, and politics always succumbs to distortion of the truth. How are you supposed to trust that a friend who lies for you isn't lying to you?
The origin of the idea that truth emerges from dialogue comes from Plato. His Dialogues teach that by conversing a long time over something, examining every presupposition, negation, and proof along the way, some sort of flash or insight will occur, and both sides will see the truth all at once. We've come a long way since Plato, but our legal system hasn't. Plato didn't believe in science, or have the benefit of scientific improvements. Courts are inherently unscientific. They stick to a rudimentary method of determining truth, reliability, and validity.
One reason for why the truth never comes out is because of less than pristine evidence. Smoking-guns (being caught red-handed), holy grails (confessions), and eyewitnesses (reliable ones) are rare. Circumstantial evidence and just-yes-or-no questions are more common. It's rare for the truth, the whole truth, and nothing but the truth to come out. Both pretrial and trial tactics are geared to victory, not the discovery of truth.
THE PROBLEM WITH PROSECUTORS AND DEFENSE ATTORNEYS
Any prosecutor receives a great deal of media attention.
In all but a few jurisdictions, they run a political campaign to get elected.
Being a prosecutor has often been a stepping stone to higher public office.
Politically, it's the ideal public office because it's the source of much
patronage and can be used to destroy the political careers of your rivals.
Patronage in this case means protection since the prosecutor can decide not to
prosecute and legally need not provide any reason, a process known as nolle
Prosecutors often hire assistants, but there is much turnover. The office may be organized to handle cases horizontally (a zone defense) by having assistants specialize or vertically (by caseload) by having assistants see a case throughout the entire judicial process. The duty of a prosecutor is to seek justice, not merely to convict, and in practice they accomplish this by holding the police to high evidentiary standards. Because these standards are often at the winnable level of beyond a reasonable doubt, it's rare to see any prosecutor with less than a 99.9% conviction rate. Prosecutors are a continual source of irritation to police departments because they don't communicate what they are looking for in cases that are other than "slam dunks."
Defense attorneys are private advocates, and by private is meant they are not bound by any government obligation to seek the truth. In fact, their job is to thwart the truth. The presumption of innocence requires that the State's case be put in the worse possible light, and it's the duty of a defense attorney to make the State look bad. Defenders don't really care if their clients are innocent or guilty, and they're not supposed to care. It's best if they don't know. Anyone facing any kind of prison sentence and cannot afford to hire a lawyer is entitled to a public defender. It's debatable which is worse, a private defender or public defender. Private defenders require at least part of their fee up front because most clients stiff them, so they therefore have to take a lot of cases to capitalize their time. Public defenders are likewise overworked, and have the additional disadvantage of low salary. Some 70% of the nation's population is served by public defenders.
Public defenders have nothing to gain politically since they can't run for office with a record of being tough on crime. Their clients often resent them because they are being paid by the enemy, and like most welfare institutions, you get what you pay for. The public defender's role is to make it look like justice is being done, to give the appearance of legitimacy to the system. They rarely risk contempt charges by being aggressive on behalf of their clients. It's almost impossible to prove inadequate counsel since the standard under Strickland v. Washington (1984) requires that even if one's defense lawyer falls asleep or is drunk during trial, it must be shown that this unduly prejudiced the jury or caused a harsh verdict.
THE PROBLEM WITH WITNESSES
In direct examination, a lawyer puts their own witnesses
on the stand and tries to get them to say "I'm absolutely positive" as many
times as possible. In cross-examination, a lawyer questions the witnesses of
the other side and tries to get them to say "I don't remember" as many times
as possible. A standard practice is for lawyers to interview witnesses prior
to trial. Sometimes, these interviews are put down in the form of written
statements or recordings, called depositions. If any inconsistencies come out
at trial between the trial testimony and the prior deposition, a lawyer will
seize on the opportunity to play word games. More commonly, prior interviews
involve coaching sessions. Coaching is illegal in most states, but the
practice is known by a variety of names -- rehearsing, relaxing, prepping,
horseshedding, and sandpapering.
During cross-examination, lawyers use a variety of dirty tricks. The most common question is "How did you know that?" Objections can be raised, sustained or denied, but rarely is a lawyer disciplined for excessive showmanship. Rule 8.4 of the Model Rules of Professional Responsibility (MRPC) prohibits: conduct involving dishonesty, fraud, deceit or misrepresentation; and conduct that is prejudicial to the administration of justice.
THE PROBLEM WITH JURIES
Juries consist of 12 people that decide who has the
better lawyer. The jury is supposed to be concerned with fact-finding and
truth. This role for the jury has never been realized in practice. In fact,
it's probably beyond the capacity of the average juror. The main problem is
that juries are too often confounded by the rules of law they must apply to
the facts. It's not that they are untrained in law. They are just structurally
located in a position to receive the finer points of law that would confound
even the most skilled legal scholar. Courts treat juries as idiots one minute,
and then expect them to perform legal miracles the next. Courts are inherently
inconsistent. They prohibit juries from seeing or hearing certain things,
order them to forget things the next, and then, at the end, give them a short
course in law, called the jury instructions. Along the way, each and every
legal standard, doctrine, test, or terminology is explained. A basic paradox
exists in trying to educate jurors in law: if you give juries
complicated instructions, they may not understand the law and misapply the
facts, but the judge and lawyers are satisfied because the quality of legal
interpretation is high. If you give juries simplified instructions, they
may overlook a relevant point of law and over generalize the facts, giving
lawyers grounds for appellate reversal.
More and more each day, juries engage in something called jury nullification. Broadly defined, this means a verdict that is clearly at odds with the law. The most common pattern is towards leniency. The phenomenon is believed by many to be the impact of extralegal factors entering into the jury's decision, but others believe it may be a reaction to the way courts treat juries. Let's take a look at some of the ways most courts treat juries:
Jurors cannot take notes
Jurors cannot ask questions
Jurors cannot hear evidence in a logical, sequential order
Jurors cannot get a transcript of testimony
Jurors cannot view videotapes
The most common justification for a prohibition on note-taking is that jurors would doodle or scribble. The reason they can't ask questions is because that would supply feedback to the lawyers who would then tailor legal arguments. Trials often present evidence in disorderly fashion, and judges are reluctant to respond to jury requests for a transcript of a particular witness' testimony because they don't want them unduly influenced by any one witness. Videotapes are avoided, as well as computer animations, because they too, might be overly influential.
Juries are also selected in a manner which almost ensures jury incompetence. Almost any white-collar professional can get exempted from jury service. Voir dire challenges also weed out people who are too competent, at least from the lawyer's point of view in terms of not being easily swayed. A common tactic when the lawyer knows their client is guilty is to pick jurors based on personalities -- jurors who hate one another. That way, the jury is likely to become deadlocked in deliberations. No verdict; no conviction.
THE PROBLEM WITH JUDGES
Judges act as mediators or referees. They are supposed
to be unbiased and impartial, which means they safeguard the rights of the
accused as well as look out for the public interest. They are also supposed to
be the finders of law (juries are the finders of fact), which means that they
should be concerned with legal guilt, not factual guilt, and they should not
let their courtrooms be used for anything other than fact-finding or
law-finding. In most jurisdictions, judges sometimes dispense substantive
justice in the form of sentences after a verdict has been rendered or when
someone waives their right to a jury trial. However, most of their duties are
tied up in ruling on matters of law, weighing objections, deciding on
admissibility of evidence, and disciplining people who act up in court.
Judgeships operate on the principle of seniority. Older, more experienced judges get to become chief judges because they have sat a long time on the bench, not because they have any special managerial talent. All federal judgeships require Presidential nomination and Senate confirmation. At the state level, judges either run for office in political campaigns or receive a gubernatorial appointment. Politics plays a role either way in state systems. Some states have adopted what is called the Missouri Plan, which has a nonpartisan commission of citizens recommend appointments to the Governor and then has the judge run for election after a specified term in office. Arrangements like the Missouri Plan are the closest thing to merit review.
In rural courts, family courts, justice of the peace courts, local magistrate, and some district courts, judges don't even have to have a law degree, college credentials, or be a member of the bar. This number accounts for about 80% of all judges. To their credit, most jurisdictions do perform a criminal background check.
The most common cases of judicial misconduct involve fixing tickets (for friends) and sexual harassment. When judges are brought up on charges, the most common punishment is censure, which still allows them to serve on the bench. Even judges who commit criminal acts can only be removed by impeachment, which takes a two-thirds vote of the legislature. A few states, mostly in the West, allow for recall or referendum elections if the public circulates a petition with enough names on it. Some states have established judicial inquiry boards, but these are used mainly for charges of being old, feeble, or incompetent, and although they have the power of forcing involuntary retirement, they usually don't go that far. Judges are some of the most overpaid and overrespected individuals in the criminal justice system.
THE EVILS OF PLEA BARGAINING
Ninety percent (90%) of cases involve plea "agreements"
(nobody uses the dirty word "bargaining" anymore). It is defined as anytime
the defendant enters a guilty plea with a reasonable expectation of receiving
some consideration from the State. In many ways, the trial is also like a plea
bargain since the defendant's side quickly learns that NOT objecting as the
trial proceeds might result in a lenient sentence. While plea agreements might
serve a small number of understandable goals, like reduction of court
overcrowding and avoidance of uncertainty with a jury trial, there are many
arguments against it.
First of all, it encourages police and prosecutor overcharging. This is when the State throws the book at a defendant, something like 14 different criminal charges for one act. Police do it because officers get credit for the most serious charge they can call something by. Prosecutors do to leave room for plea agreements and collect "favors" from defense attorneys. Critics often say plea agreements encourage leniency, but the whole process is about convenience and expediency for those who work in the court system, not the defendants who come and go.
Overcharging leads to higher bail, so defendants spend more time in jail awaiting trial. Jails are worse than prisons, and jail overcrowding is worse than prison overcrowding. The constant pressures put on defendants to accept plea agreements creates undue stress on defendants while relieving stress for the State. The defendant is disadvantaged at every turn. Innocent people plead guilty because they see no hope. Those daring enough to reject a plea agreement and go to trial often find themselves with a longer sentence (though perfectly legal, the maximum the law will allow). Conformity is rewarded. Attorneys who participate in the process build up credit or "chips" they can cash in, about once a year, on any big case they really need a break on.
THE PRICE TAG
The United States has the clumsiest and most expensive
court system in the world. It is slow and inefficient. It takes at least four
years for a civil suit to come to trial, and about a year and a half for a
criminal case. Delay tactics are common and serve several purposes other than
pressuring the innocent to plead guilty just to get it over with. Civil
defendants use delay to defer making payments. Criminal defendants who can
afford bail get to remain free while awaiting trial. Witnesses die, papers get
lost, etc. Pretrial motions and getting a jury seated account for 80% of trial
delay. The cost for any trial involving a shooting, for example, can easily
run close to $1 million. Celebrity cases easily cost about $5 million. The
average courtroom in America costs the taxpayer about $6,500 a day to run,
which includes salaries, staff, overhead, depreciation, maintenance, etc.
Insanity and death penalty cases are the most expensive because of all the
additional hearings, appeals, scientific witnesses, and time involved.
Attorney fees in the U.S. are higher than anyplace else in the world. Every country other than the U.S. regulates attorney fees. American lawyers also bill by the hour ($150-$200), a practice unheard of in other countries where lawyers offer standard rates for specific services. One of the most controversial practices in the U.S. is the contingency fee, where lawyers agree to represent somebody in a suit against another party and set their fee based on a cut of how much they can get out of the other party's deep pockets. Jurors and expert witnesses, are by contrast, notoriously underpaid. Courts are inherently economic, the sole source of income to those working full time in the legal profession, and play an unrecognized role in a market economy. The decline of the industrial era may have more to do with lawyers than the information age. Whole sections of the manufacturing industry have had to shut down, close plants, or downsize because of astronomical settlements achieved by lawyers in suits against business.
The best lawyers are only available to the wealthy. The rich enjoy mock-jury preparations, jury consultants, computer support, and a thorough re-investigation of the crime. Unequal wealth equals unequal justice. Public defender systems exist for the poor, but these lawyers are only paid an average of $45 an hour. There is no Sixth Amendment equivalent of the public defender system in the civil justice system; claimants have to use Legal Aids, Clinics, or Societies. The American Bar Association (ABA) has long recognized that 70% of the population is not being reached by the legal profession.
It is highly important that the worst excesses of the
adversary system be done away with -- overly zealous advocacy, hardball
tactics, discovery and pretrial motion abuse, witness coaching, and dirty
tricks. Attorneys, however, nourish these freedoms as much as writers nourish
their creative freedom. Currently, the only thing standing in the way of these
excesses are the often-unenforced ethical codes of bar associations. There
should be laws preventing the truth from being thwarted, distorted, or hidden.
Mandatory discovery or disclosure laws should require parties to exchange all
Juries should either be done away with, or replaced by a system of professional jurors trained in the law. The present system selects jurors who cannot possibly comprehend the law, and it seems as if this system contributes to complexity, obfuscation, and pettifoggery. Jurors should be allowed to see all the evidence, perhaps even hearsay evidence. Some cases should not even go to trial; they should be handled by non-legal arbitration and mediation centers.
There should be strict merit standards on appointing judges, and their power in the courtroom should be expanded. Judges should perhaps be given the power of paycheck, rewarding attorneys on the basis of their performance. Complex trials should be broken down into smaller, more issue-separated trials, and time limits ought to be placed on discovery and pretrial motions. Court managers should be used to schedule and administrate court systems.
All attorneys (judges, prosecutors, defenders) should be required to undergo regular professional development training. There needs to be more specialization in criminal law, and perhaps special licensing, certification, or accreditation standards. The same can be said for expert witnesses. Criminal law specialists need to concentrate on their role as working professionals, avoiding part-time extravagances such as teaching criminal justice at local colleges or seeking honorariums in other ways. In order to make sure they earn a decent income, there should be tax relief for such professionals, perhaps tied to their performance evaluations.
It's also time to do away with the bar's monopoly on legal services. In the field of medicine, paramedics and nurse practitioners do as good a job as doctors. In law, paralegals can often do as adequate a job as lawyers. Reform of the marketplace cannot come too soon. Our present system is too costly, too unfair, too destructive, and too inefficient for a civilized society.
Adversary System and Divorce
A Look Inside How a Court Operates
American Law Sources Online
Association of Trial Lawyers of America
Court Reform of the Adversarial System
Grand Jury FAQ
How Grand Juries Operate
Is the Adversarial System Eroding?
National Association of Criminal Defense Lawyers
Philosophic Logic of the Adversary System
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Last Updated: 05/10/04
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