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…