THE MERITS AND CORRUPTIBILITY OF THE U.S. ADVERSARIAL SYSTEM OF JUSTICE

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.

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[1] Article: Professionalism and the Hidden Assault on the Adversarial Process, 55 Ohio St. L.J. 855 (1994)

Should I Confess Something?

Several years ago I got custody of my son after doing the week-end visitation gig for many years. While I would have loved to characterize the occasion as an opportunity to really bond with my son in his teen-age years, the turmoil which prompted the brutal custody battle brought forth a kind of trial I had not experienced before as a Christian.

I found myself associating with people that I never thought I would have before. I hoped to maintain some kind of contact with my son who was completely out of control. Calling the cops never helped. Drug dealers, ex-cons, alcoholics and drug addicts became my new “friends”. I would rarely invite regular friends over to my house; I sometimes felt I was a double agent: I didn’t want the sub-culture types to feel too uncomfortable around me, and I did not really want the “regulars” to see how I lived.

The question which I bring to you, my readers, (and I hope that there will be more comments on this piece), is one related to Christian spiritual warfare. More specifically, can spiritual warfare get physical, biblically speaking, or are you just sinning?

I can almost hear you thinking, “uh oh, what did you do?”

Let me first say that I did not do drugs or commit crimes and so forth. However, the environment I was in, the environment my son would be in with or without me, was patently ghetto. What I did that prompts this discussion is outlined as follows.

I was sitting there in my dead-bolted room when my son pounded on my door in a panic. “Grab your shotgun…NOW!!!”

Apparently, in the front yard there was a rather large, spry young man in his late 20’s who was intent on doing serious damage to my son and others who were dispersing. He was on his way into the house, one way or another. So, grab the shotgun I did.

When I saw that the guy was not armed, I had someone take the shotgun away. Though I was 49 years old and had not been in a fight for several decades, I had no choice but to get it into gear—he was coming at me full tilt. Whatever was going to happen would happen before police would be able to intervene.

Surprisingly, I found myself performing some kind of flying round house kick to his ribs followed up by planting my knee in his groin and an elbow to the back of his neck after he bent over. It seemed like time slowed down as I blocked his blows and fought him, (my son pitched in some, a real bonding moment) till he was neutralized.

Maybe it was good that I didn’t have Christian friends around me. I could see myself, after such a scene, “Hey, brother, let’s go share our faith with the neighbors who were watching! I’m sure they were impressed as they watched my miracle work on the front lawn here!” So I had to get a little Old Testament on the guy?

While Jehovah’s Witnesses will not fight in wars, Evangelical Christians do. And most observe the right to defend yourself and others. For my part, my son is doing very well now; I do not question the work that the Lord has done in this trial, whether it be by using me while in sin or not. However, the New Testament continues to cause me to struggle on this issue.

In Defense of Thinking

As I waited for the mailperson to finish her work so I could get my mail, our small talk turned to the S&P downgrade. I piped in, “Apparently the issue of debt that the Tea Party had is a worthy concern.” Her answer: they are extremists.

This caused my mind to contort. Later that day, I felt a need to confront the conundrum. Could I be the one who is narrow-minded? Am I a hopeless ideologue, unable to engage in a rational conversation with a reasonably intelligent person?

I asked myself these self-examining questions because I have a habit of scrutinizing facts and issues. I am aware that I have biases which may otherwise obscure my ability to arrive at a lucid conclusion. Maybe this is because I have a background in biology. Alternatively, this habit could have come from my experience doing legal research.

Yet, I remember a time when open debate was to some degree anchored in simple, common logic, not “talking points” echoed mindlessly with hypnotic repetition from the media. It didn’t require any credentials or special experience; it was common sense which provided the framework for public discourse.

In the glorious old days, if a president blamed his predecessor for the economy 2-3 years later, he would look like an idiot. If a grass roots movement developed to change the direction the government was heading, such as bankruptcy, they were lauded as a prime example of “the American way”. Simple phrases that don’t need to survive the simplest form of logical debate are used to indoctrinate these days. Just the unified call from on high is needed: the teeea parrrty are terrorists… it’s the faaault of Bussshh … change is always gooood, is enough.

When did Americans stop thinking for themselves by analyzing facts? Maybe mental laziness should be a new disease, MLS, Mental Laziness Syndrome. Maybe the government’s stellar results with education are really to be found in their institutions for victims of MLS?

The conclusion that I arrive at (granted, I am not an Ivy League “intellectual”) is this: in this political season, and during such a critical point in our Nation’s history, conservatives must either a) become very articulate in short logical arguments and/or b) cater their message to the MLS victims.

Suggestions for communicating with MLS victims? Look at the playbook from the engineers of the disease. Use name-calling: e.g. “Obama Zombies”. Use short, simple catch phrases repetitively and with cohesion between all conservative media outlets.

Even though the fate of the nation is at issue, apparently with these mentally lazy victims, it takes too much energy to go beyond a repetitive tweet. Hopefully, these methodologies will still work when facts and logic underlie them.