Comparison of the European “Civil Law” Method Versus the U.S. Adversarial System of Law
A crucial purpose of any legal system is to establish the truth and then apply the law accordingly.
Compared to the U.S., it is probably easier to see the logic behind the European system; the attorneys cooperate with exposing the truth, whether or not the party which one represents loses. With both sides being forthright with their information and understanding of the truth, success would seem to be more achievable.
Alternatively, the U.S. adversarial system is essentially mandated by its Constitution and must operate within its bounds.
Because of a distrust of historical abuses of state authority in inquisitorial trials and unchecked government power, built within the Fifth and Sixth Amendments were procedural rights of criminal defendants which form the adversarial mode of adjudication.[1]
To avoid putting responsibility for the search for the truth in the hands of judicial agents of the state, the Sixth Amendment of the U.S. Constitution guarantees the right to trial by jury and an independent panel of the defendant's peers serves as fact-finder. Other rights afforded to the defendant in the Sixth Amendment include the following: the right to effective assistance of counsel; to testify on her own behalf; to compel the testimony of others; to confront her accusers; the derivative right of cross-examination.
The Fifth Amendment privilege against self-incrimination further limits the coercive powers of the state.
The U.S. Constitution, therefore, recognizes a link between justice and the adversarial system. The European civil law system would not survive under the U.S. Constitution; giving power for discerning truth to court officials (attorneys) simply does not mix with the Framers' suspicion of official power’s ability to provide a forthright, unprejudiced representation of the truth.
Because of the historical corrupting influences of concentrated power in the hands of a type of elite class, the U.S. adversary system and the Constitutional rights therein are superior, in my opinion, to that of the Europeans. Nonetheless, there are problems with the contemporary U.S. system’s truth-discerning utility which are not necessitated by the Constitution; ironically, the problems which are illustrated below are even discordant to the Framer’s intention of limiting corruptible concentrations of power to the detriment of justice and discovery of truth.
Case in Point: State of New Mexico v Valdez, 95 N.M. 70 (Supreme Ct. of N.M., 1980)
The defendant in this case, Richard Valdez, had been convicted of armed robbery in a district court. He appealed since a fellow inmate, Richard Garcia, had confessed to the crime in front of his former attorney, Alice Hector, who was a public defender.
Also present during the confession was Garcia’s attorney, a public defender under Hector, the district public defender. This attorney warned Garcia that Hector was not his attorney and any statement Garcia made would be used at the defendant's trial and could be detrimental to his own interests. Garcia repeated his confession to Hector and indicated his willingness to testify on defendant's behalf.
Garcia later changed his mind and exercised his Fifth Amendment right refusing to testify.
The court upheld an objection to Hector’s testimony of the confession based on attorney-client privilege. Although Ms. Hector was not directly involved in the representation of Garcia, her staff was, and all information obtained by them was thereby imputed to her.
The issue discussed here is whether the attorney-client privilege, which is designed to assure the functioning of the adversary legal system in fostering the finding of truth and justice, should be used in particular situations where such use circumvents justice by keeping critical testimony from the jury.
The need for an attorney’s loyalty to their client and the need for confidentiality in attorney-client communications are crucial to an adversarial system of justice, which can give the best framework for reaching the truth. Yet in instances such as this, where the underpinnings of the adversarial system are used to thwart the goal of the doctrine itself, it becomes incumbent upon legislators and judges to supply exceptions. These exceptions, like all exceptions, must be drafted with enough precision and specificity to keep the underlying doctrine intact and be consistent with its intent.
While such exceptions have been made to the privileged communications of other special relationships, such as those of psychotherapists and their patients, the current state of the attorney’s privileges would likely raise the eye brows of the Framers, as did other unchecked government power.
[1] Article: Professionalism and the Hidden Assault on the Adversarial Process, 55 Ohio St. L.J. 855 (1994)
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