Is the Adversarial Process Fair?
The adversarial process in the US court system refers to the reliance upon the skills of the advocates who are representing the cause of their clients in an ongoing case to determine the truth (Anders v California (1967); United States v Cronic 1984). This system is differentiated from the inquisitorial system where a judge or group of judges conducts the investigation of the case. In the adversarial process, judges play the role of ensuring the application of due process such as deciding questions of admissibility of evidence and achievement of justice. ( 1977)
There are two significant ways of differentiating the adversarial from the inquisitorial process. First aspect of differentiation is the process following the admission of guilt of the defendant. In an adversarial process, the case proceeds to sentencing after the admission of guilt because is no longer any controversy to be settled. However, the process does not work in case of false confession so that in most states, the courts mandates or allows the defendant to have allocution. In the inquisitorial system, the confession is included as evidence but does not remove the requirement of case presentation by the prosecution. In the adversarial system, plea bargain is allowed and many cases before the courts have been determined using the plea bargain. Second aspect of differentiation is the rules of evidence. Since evidence in the adversarial system is deemed presented to laymen the rules on evidence are strict when compared to the inquisitorial evidence when the evidence is presented to jurists with the ability to distinguish the merit of evidence. The admissibility of hearsay is strictly considered in an adversarial process relative to an inquisitorial process. (1977)
In criminal cases governed by the adversarial process, the presence of counsel is inevitable (Strickland v Washington 1984; Penson v Ohio 1988). However, representation by counsel was only declared by the US Supreme Court as a right in 1963 through Gideon v Wainwright. In this case, the court held that courts are mandated to by the Sixth and Fourteenth Amendments to provide counsel to defendants in criminal cases without the financial capacity to acquire legal services. This decision enhanced the adversarial process by ensuring that all defendants in criminal cases have lawyers to advocate their cause and rights in court.
Reliance upon the advocacy skills of lawyers in the adversarial process gives rise to several issues hinging upon the fairness of the process. The first issue is the lawyer’s possible manipulation of truth by advising a client not to testify and provide evidence. In a criminal case, the defendant has the option to choose whether to testify or not. In case, the defendant chooses to testify, his testimony is subject to cross-examination with the possibility of being declared guilty of perjury in case of any validated lies. Since, defendants may not have the proper skills to make the decision lawyers influence their decision. In case putting the defendant on the stand would be detrimental to him, the lawyer would invoke the defendant’s right not to testify preventing the presentation of possibly self-incriminating evidence.
Another issue is the possibility that a favourable judgment may be obtained only due to the personal appeal of the lawyer and not based on evidence. Juries, despite their duty to be unbiased and decide based on the weight of evidence, form impressions of the parties to the case and their respective lawyers. A charismatic lawyer would likely have a captive audience with the jury compared to a less or non-charismatic adversarial opponent. This offers an important issue in the delivery of justice.
Still another issue is that the adversarial process is akin to ancient systems of discerning the truth such as trial by ordeal because the basis of deciding the case depends upon the persuasiveness of the parties and their advocates to their cause. The adversarial process is considered as a display of rhetoric prowess among lawyers with little weight given to the evidence presented.
Despite these issues, the adversarial process is fair because it allows the parties the freedom to settle the case amicably through plea bargaining giving the defendant to choose a course of action. Concurrently, it is also fair because the state is not given any room to develop biases against the defendant because of the protection given by the Fifth Amendment to defendants in a plea bargain by preventing the judge and jury from developing any negative notions against the defendant. In relation to the role of counsel, the presumption is of course their diligent performance of their duty but the law does not hesitate to sanction any lawyer proven to have erred in his legal duties.
0 comments:
Post a Comment