Apples and Nuts

Barrels full of crisp, delectable apples will always contain a few nuts – or rotten apples, if you prefer that analogy – just as the world will always have people who steal, kill, cheat, lie, and abuse.  The U.S. utilizes an adversary system, as opposed to an inquisitional system, in order to deal with their nuts/worm-riddled fruit.

Adversary systems are thought of as being just and fair, giving defendants a long list of rights for protection against abuse (see Bill of Rights, U.S. Constitution, and the numerous decisions in the Supreme Court).  The criminal procedure consists of opposing sides, battling it out in court to either prove – prosecutor’s job – or disprove – defense lawyer’s job – the guilt of the accused.  This competitive nature is often less about finding the truth than it is about the innate rights of the accused, whether guilty or innocent.

Freedman and Smith in their article Lawyer’s Ethics argued that even if a defense lawyer knows his client is guilty, it is still his duty to defend him zealously, even at the humiliation or degradation of the victim.  The example used in the article is that of a rape victim.  The defense lawyer knew that his client was guilty and yet was still bound to zealously defend him.  They argued, along with Chief Justice Warren Burger, that the lawyer should reduce the credibility of the victim by destroying her reputation; doing this would allow the judge or jury to question whether she had made a false accusation, therefore allowing the defendant to go free.  Additionally, the lawyer adds to the victim’s injury while ensuring the guilty defendant goes free, free to potentially commit another crime.

In contrast, a different process that can be used in the criminal procedure is that of the inquisition system.  In this scenario it is the judge, or a panel of judges, who collaborate with both the prosecutor and defense in order to find the truth.  Truth finding, rather than the rights of the defendant, is where the Court is focused.  This would mean that if a defense lawyer knew the guilt of his client, than his client would go directly to jail, would not pass go, and would certainly not collect $200 dollars.  However, there is a cruel and unjust side of the inquisitional system: torture.  Because it is an effective way of coercing confessions out of the guilty, many governments have historically tortured or imprisoned their citizens in the name of justice.  Many falsly accused innocent people have also confessed to crimes due to this.

My question: Isn’t there a better system, where the guilty don’t go free and torture techniques do not have to be used?

My answer: But of course, yes!

A modern example of the combination of inquisition (cruelty-free) and adversary system can be found in France.  They use a limited form of inquisition as a preliminary trial, where a panel of judges actively investigates the truth in order to determine whether enough evidence exists for an adversary court to even consider the guilt of the accused.  Building onto that, I would like to broaden the rights of victims.  I find it a little off-putting that long lists of defendant’s rights are mentioned at the core of many fundamental U.S. documents, and discussed extensively in Supreme Court cases, while victim’s rights seem to be far fewer and even at times ignored.

For instance, a victim has the right to be treated with “fairness, respect, and dignity, and be free of intimidation, harassment, or abuse throughout the criminal justice process.”  I would argue, along with many others, that this right is largely ignored by zealous defense lawyers, such as it is in the previously given example.

By being more focused on finding the truth in a case and by increasing victim’s rights, without detracting in any way from defendant’s rights, I believe that our justice system would be far more, well, just.

But… just to be on the safe side…


About Wunderkynd

"What is to give light must endure burning." - Vikto E. Frankl
This entry was posted in Uncategorized. Bookmark the permalink.

9 Responses to Apples and Nuts

  1. ryrooney says:

    When you talk about the inquisition system and how if a defense attorney knew his client was guilty his client would automatically go to jail, not collect $200 ect., but would this be so for petty crimes too? Or are you only talking about crimes that are seen as the utmost important, crimes that require “excusable torture”? And when talking about the adversary systems and how it does not focus on the accused rights so much as it’s focused on proving them either guilty or not guilty; isn’t having your rights impinged upon a form or torture? A very minor form of torture, but torture non the less?

    You used a great example about rape and the victim being not only degraded because she knows that the lawyers is lying to try and cover his clients butt, but also because there is a potential that her rapist might go free and commit the same crime. The inquisition system would work perfectly for cases like this but I think many people would argue that the inquisition system infringes upon more rights than the adversary system. If a person’s lawyer knowing that their client is guilty is what sends the client to jail, I don’t see a point in hiring a lawyer. Plus, I believe this brakes the lawyer client confidentiality?

    • elason13 says:

      To be clear, I am NOT advocating torture.

      When I spoke about the inquisition system in the 4th paragraph, it was from an informational/historical perspective. I suppose back in the day when this system was used, it was used for petty crimes as well as major, although I’m not sure if this is what you were asking?

      What I am advocating is a combination of inquisitional and adversary systems, as in France. However, I do not believe that inquisition and torture are inextricably linked; just because a panel of judges are used to actively find the truth in a case does not mean (in my mind, at least) that torture has to be used.

      As for your question on the adversary system, I actually believe just the opposite of what you stated… the adversary system is more focused on the rights of the accused than the factual innocence or guilt.
      Is having your rights infringed upon a form of torture? I suppose that depends on what right is being infringed: The right to life? For sure. But the right to petition? Not so much. Torture is a pretty extreme, not to be taken lightly…

  2. dlsimps2 says:

    I like the general idea of the way you explained the inquisition system that is in place in France. Working toward the truth is something everyone can get behind. I feel in practice though, that I personally wouldn’t like it should I find myself on the stand defending myself. While I don’t believe that it is right that rape victims are so harshly persecuted on the stand, I think that it may be necessary to ensure that everything is laid out. When someone’s freedom is on the line I don’t think that it is fair to take away the one person (their lawyer) that they have as a confidante no matter how bad a person they really are. Hopefully they aren’t as smart as they think they are and the prosecutor can put them away and if not then it is not often that you stop at one offense so they will get caught eventually…

    • elason13 says:

      The accused would not be lawyerless in this system. He or she would still have a lawyer who knows the accused rights, knows what the truth seekers can and cannot do, knows what evidence to submit on the accused behalf, knows and can explain his or her side of the story. If the accused was innocent, he or she would get off as the truth seekers would inevitably find out of his or her innocence. On the other hand, if the defandant was guilty, there wouldn’t be much a lawyer would be able to do… The lawyer could still ensure the defendant’s rights aren’t infringed upon… The guilty are guilty and the truth comes out.

      I don’t know. Just a though.

  3. I would have to argue against this system because it would be highly cumbersome and bureaucratic. Firstly, giving every person accused of a crime a “fact finding” hearing would be a lot of money for taxpayers. And if the accused is someone important, say a powerful politician this “fact finding” mission might throw out the case before it even hits the ground. Or perhaps someone really is guilty but there is little evidence readily available, and finding some would take time. The case could be thrown out if it seems too “trivial” to bother dealing with. Ie petty theft or vandalism etc.

    I would rather error by letting people plea out or have their day in court versus a committee telling me that i got no case. Such as in the case of Al Capone, who almost got off but was caught on tax evasion.

  4. rubit91 says:

    Unfortunately, many of us have to admit that our court system is messed up. Like any other change, it is possible for the court system to improve. However, it will be a change that will take a lot of time, effort, and structure.

    I read the comment posted by ryrooney and I completely agree with him/her when mentioned that if lawyers admit to their client’s guilt there isn’t a point for clients to have a lawyer. I believe that those guilty of a crime should pay their consequences by imprisonment. However, I also believe that defense attorneys should defend their clients regardless if they are guilty or not because that is their job to do so.

  5. amkavana says:

    I have to agree with others that while this sounds like a good idea, ‘inquisition’ is just a really bad name for a process in this day and age. However, in seeking the truth amongst a panel of judges, several questions are raised.

    Who picks the judges? On what grounds?
    Does this not expose the victim to the accused, which may be traumatic for him or her?
    Are facts and testimonies uncovered during this preliminary inquisition to be used during the trial?

    Essentially, what are the parameters for the preliminary inquiry? That’s not to say I dislike the idea – I don’t – I just am unsure if it is truly a solution to the problem of innocent people going to jail.

    While it may not seem like the best idea, I can sympathize with the argument for a zealous defense no matter what, as it leaves a very important door closed and locked: Where, whether guilty or innocent, dislikable people end up punished.

  6. Tracy Encizo says:

    Very interesting post! I made some connections between it and our discussions in POS 470 today: the Ellsworth and Perry articles and the benefits and problems of the jury system.

    Regarding the data about juries not understanding the law, we considered the idea that judges should decide on the pertinent legal issues of cases while juries would continue to deliberate on the facts of the case. One student suggested we eliminate the process of voir dire since we learned that it is very common for jurors with education to be rejected during this process. The data seems to suggest that this isn’t good because it was found that oftentimes, jurors don’t understand the judge’s instructions, in addition to not understanding the legal issues. Instead of letting attorneys choose jurors, juries would be assembled by a disinterested party based on a required balance of ethnicity, age, and gender.

    The idea of a preliminary inquisition “where a panel of judges actively investigates the truth in order to determine whether enough evidence exists for an adversary court to even consider the guilt of the accused” could also improve the jury system. Is what you describe similar to what is done in the grand jury? The system already in place could be enlarged, refined, or whatever to make the preliminary inquisition (maybe we could call it the Preliminary Interrogation or Investigation) a workable, not overly bureaucratic process. And keep the politicians out of it.

    The class reading “Rape” by Susan Estrich discussed many issues pertinent to rape cases: consent, mens rea, force, etc., but what I found most compelling was the point made about not putting the victim on trial and, instead, focusing on the perpetrator’s actions. Wunderkynd mentions broadening victim’s rights and the above is a good example. Just my thoughts.

Leave a Reply