This week’s class was great. I am
glad we are all together in this process.
I want all of us
to revisit the subject of “Adversarial system”, but from our own perspective
rather than Sturz’s or justice Sotomayor’s. What guarantee the victory of
either the defense or prosecution? We could say that the side able to
successfully present enough evidences to persuade the judge or jury to rule on
that person’s favor. Would this mean that the chances of winning for a
defendant attorney would depend on the size of the caseload and the time
dedicated to each case?
I can think of some scenarios that tell me there is an imbalance in the
adversarial system. Most of the time I
hear from friends who have had an interaction with the criminal Justice system
they tell me they have used plea barging. Some of the reasons they have given
me are that plea bargain was an easy way to get a reduced sentence and that they
were advised by their attorneys to take the deal. They all felt that
whether they take the deal or go to trial the system will “screw them” anyways.
I wonder if the people who can afford a lawyer have the same mindset when
interacting with the criminal justice system. I am not criticizing the extraordinary
job defense attorneys do. I just want to bring to the table how people who
can't afford legal representation may have a different perception of the system
from the ones who can.
14 comments:
I actually disagree. The attorney who presents the most evidence will not necessarily win the case. Recently I had been working on a study in one of the psych labs here, called hot-tubbing. I don't know why it called hot-tubbing, but essentially hot-tubbing is a different trial system that involves two attorneys working together to present all the evidence in an unbiased form. This system is used primarily in Australia. That is really all the specifics I can give about the study, since it is unpublished. This form seems, on the surface, to reduce the competition surrounding adversarial trials, and the hope is that research will show it to be more effective and accurate at uncovering the truth.
I feel that in the U.S. attorneys generally are trying to win the case and not necessarily find the truth in each specific case. Prosecutors are usually noted by their success rate. Often times the truth is not as important to the prosecution as winning the case. However, I do feel that the defense attorneys make their best effort to win the case for their client. During the summer, I worked in Kings County Criminal Court in arraignments. Many times defendants were acquitted because of the work and effort put forth by their defense attorney. While I agree there are some who would suggest the plea bargain, this may be because they feel the case has no chance if it were to go to trial or they feel it is the best line of action for their client.
If I understand correctly, Arturo raises some important questions about the "fairness" (justice?) of our criminal justice system as it is structured and currently operates.
Behind Arturo's concerns, might be a set of basic questions: Is the problem that the system is "adversarial" (one side against the other?)? Or, as Arturo seems to suggest, is the problem that inequalities external to the court system determine who gets to court in the first place (who is arrested, for what?; who isn't arrested for engaging the same kinds of activities?)? And once there, what resources are accessible to each "side," resources they can bring to bear on the case? Who has what resources? Do some among the actors in the system have greater access to resources than others? If so, how does that come to be?
In other words, is the adversarial system played on an equal field? If not, how do we know it is not an equal playing field? What are the indicators that the playing field is not equal?
Also, how does all this relate to Sturz's first Vera project on bail?
I believe what Sydney is referring to is a collaborative approach to establishing the factual guilt of a defendant, as opposed to the combative or adversarial approach here in the US. I looked it up and hot-tubbing is formally known as “concurrent evidence” whereby a panel of experts work together instead of for either the prosecution or defense, to provide testimony in their respective fields. If there are disagreements, then the panel can work those out instead of being cross examined by the prosecutor of defense attorney.
I think hot-tubbing can be incorporated into the adversarial process instead of refuting it altogether. There are so many areas of disagreement among experts (like whether the defendant was in the right frame of mind/had the mental capacity to make decisions etc.) and such a panel would circumvent side-taking and provide a neutral venue for experts to reach some sort of a consensus that would move a case forward faster.
With regards to whether the adversarial system favors the defendant, I am reminded of 2 approaches to criminal justice- crime control and due process model. The crime control model is likened to an assembly-line way of dealing with crime: cases are adjudicated quicker and plea bargains are common (as Lauren and Arturo mentioned). In the due process model, the emphasis is on the rights of the defendant and in ensuring whether is case is processed in a manner that is fair and just to him. Factors like political climate, crime rates etc. influence which model is used more often.
The bulk of cases that the courts deal involve defendants who would be better off in treatment programs as opposed to time in jail. As Lauren mentioned, prosecutors are evaluated based on the number of convictions they secure and in upholding their get-tough-on-crime stance. I believe the adversarial system is not helping most of the defendants it serves. As in the Sturz’s bail project, the prior criteria used for establishing which defendant gets bail is skewed against those who are not wealthy. Race too plays a factor in the outcome of cases, as found by a recent Vera study.
I agree that inequalities external to the courts influence its fairness and I would favor doing away with the adversarial system. An impartial, nonpartisan way of determining guilt would save taxpayer money as well as provide a more even playing field for defendants. What do you guys think?
In general, a defense strategy will emerge as a defense attorney finds out more about what the prosecutor is planning to do. Because each prosecution is different from every other, a particular defense strategy is unique to the situation at hand. In most cases, I would agree with Lauren. Parties may argue against each other without the regard for the truth, because the pursuit of winning often overshadows the search for truth. Sometimes, parties are inclined to ignore the truth.
Again, we are coming back to the discussion about truth. Who defines truth? How many people have access to the true story of criminal scene? Is that possible for defendant to know what actually happened in the scene? When I was a child, I got into accident while driving a bike. Presumably, I was guilty in crossing the street in restricted place. However, I was so shocked at this moment, so I would not able to realize what happened. Was I guilty? That is what other people made me feel.
Additionally, what keeps a defendant and his or her attorney from making up false stories that would tend to show innocence. Generally speaking, defendant that is open and honest with his or her attorney will have a better chance of putting up a great defense. But it is worthwhile to keep in mind that the truth that a defendant sees is not always the truth that a prosecutor sees. Indeed, there are often multiple versions of the truth that exist during prosecution. For example, if a defendant is on trial for murder charges, there could be many different true stories. In one storyline, the defendant killed the victim in cold blood as a premeditated crime. In another story, the defendant only killed the victim in self defense after the victim tried to assault the defendant.
I doubt we'll be able to have any conversation of appropriate depth without at some point challenging ourselves in our definitions of truth and justice. I believe truth and justice are relative to the person claiming that truth or justice. I think there are very few (if any) universal truths, and i think my lack of belief in universal truths makes me keen towards the side of pessimism. all that's left, all that keeps me fighting for the marginalized populations, is what I see as truth and what I believe is just, knowing that I am probably wrong in a good number of people's opinion.
All that said, I don't think the adversarial system does any one any good. it is not just/fair/truth seeking. It is a glorified boxing match. Two opponents, a ring, and a referee. One party wins and the other party is left bleeding to death.
I absolutely agree with Bekah. I think this idea of universal truth is questionable to say the least.... and its the same for "human nature" I think that reforming isn't enough and because it is a perpetuation of this system. This system which we know marginalizes and stigmatizes people of color or essentially all minorities (I say that thinking of gender and transgenders/transexuals). This isn't something that could be bandaged. This is something that needs to be eradicated.... all this after having decided what justice and truth looks like. It scares me to think that way though because one thing that I do believe to be true is that everyone is different and has different opinions, so is a consensus possible?
It is terrifying to think that no matter how much we fight and how much we advocate and push for change it may simply not happen. So how/where do we find the motivation needed to continue? When do we settle? When is enough enough? I mean we know that we may only get bandages to stop the bleeding. So how do we begin to actually heal?
Basically Bekah took the words out of my mouth.
In my opinion, I think the Adversarial system is a complex form of attaining justice. It might not be the best approach in particular cases. However, it can be useful for others. In order to prove its efficacy, we might have to narrow it down to a particular case before drawing a final conclusion.
As we all know, the adversarial traditions brings in before a judge and a jury, two parties who engage in contradictory debates and usually the winner is the party that succeed in presenting their evidence persuasively. Although this is what is generally accepted as the adversarial tradition, however, there also several other ways a verdict can be reached in a criminal trial. Stare Decisis, where the judge uses precedents to deliberate a case, is one of them. In addition to this, the burden of proof is on the prosecution and it needs to prove beyond reasonable doubts that the accused is guilty of the crime.
In the matter of equality within the system, I think the system is structured that both parties are fairly treated. However, this is not always the case. Given that, several other factors influence the justice system nowadays. With that being the case, the adversarial system by itself is not the problem, but the problem is the way the incorrectness behind its application. Having more evidence does not always guarantee victory.
In conclusion, I think the imbalance does not originate from the adversarial tradition. It originates instead from the inadequacy of litigators, who are failing to fulfill their duty as they are supposed to. In New York City for instance, criminal courts are dealing with congestion and delays when it comes to trying cases. Some have argued that, such delays are in favors of the defense. For during the delay period, evidences are being obstructed, witnesses are hard to find and some do not even have the exact recollection of the events.
The article Courts in Slow Motion, Aided by the Defense, published on August 13, by William Glaberson in the New York Times, talks about factors that are preventing justice from being done in the Bronx criminal court.
The article can be found by following the link below:
http://www.nytimes.com/2013/04/15/nyregion/justice-denied-courts-in-slow-motion-aided-by-defense.html?pagewanted=all&_r=0
Marina, I think you are also raising an interesting point by touching on the role of the defendants. I think the goal of the defense attorney is not always to get the defendants acquitted of the crimes that they are accused of. But rather, to make sure that they are being given a fair trial, where the constitutional process are followed and they are treated fairly.
Marina's comments make me so excited for the week in which we read "In a Grove"!!
While there is NO ONE who loves deconstructing ideas like "Truth" like an English professor, I will make a pitch for the importance of not throwing this particular baby out with the bathwater. While context and perspective are incredibly important, sometimes we can just find out more and things become clearer. As I write this, the Ravens have just released Ray Rice and the NFL banned him indefinitely. Why? Not because he was guilty of domestic violence -- that he was was evident when he received his 2 week slap on the wrist (4 weeks suspension for a joint, y'all) -- but because a fuller video showing him knocking out his wife got released.
Putting aside the politics of watching the video, before this extra video was released, we had tweets from Rice's compadres about his character, about this being an out-of-the-ordinary event, about how sometimes women can punch and start things up -- basically the whole relativistic nonsense that allows aggression to continue in the shadows. Of course we can't have video of everything (though the temptation to do so is evident in the putting of cameras on cops in NY and in Ferguson, MO) and even video can have different interpretations. But just because we can have folks who can spin a yarn making black white and white black (or so grey that a jury can't really believe in any truth) doesn't mean we shouldn't keep trying to figure out what can be known.
I absolutely love the idea of hot-tubbing and would really, really like to know what the derivation of that term is.
While many of themes brought up by my peers are very crucial when determining what a truly just criminal justice system looks like. I think we ought to look at the bigger picture -- outside the defender, the prosecutor, and the judge and instead focus on what Lauren said. Prosecutors and Defenders are glorified by how many cases they win. When a lawyer wins tons of cases,it increase the value of his work. Can we say that this may be correlated with capitalism? When a lawyer is able to uphold a certain number of won cases, the value of his work also increases and therefore we end up putting a price on a system that should be based on truth and justice not on money. How can a lower income person present a present the truth of his case in a more persuasive way when the better lawyers are exclusively working for the people providing bigger checks. Why instead of investing money in ways to better the lawyers defending the poor, we allow for mediocre lawyers to represent the poor and for the better lawyers to remain exclusive. While it would be ideal to change an entire system like Monica said, I also recognize that it close to impossible when there are so many variables to consider, from the lawyers, gender inequalities, race, and a indoctrinated system that have filled us with our biases about "criminals", cops, and court.
Wow! Everyone is bringing up such great points. All of which require a great bit of philosophical and theoretic discussion. There is no way I can touch upon all aspects of this conversation, but there are things I know I'd like to respond to.
In response to the racial disadvantages to the adversarial system, in terms of trial presentation I think it goes beyond the race. I think it has more to do with the financial abilities of the defendant. If you are able to afford an attorney who can put the time and effort into the defense, the skin color or minority status of the defendant will not matter. However the truth is that the likelihood of a minority defendant having the money for a good private attorney is low.
In addition, most people do not realize that jury vior dire (picking a jury) is an adversarial process done by the attorneys. The Judgement is where race and minority status plays a major role despite how good of an attorney the defendant can hire. Both the prosecution and the defense are theoretically trying to create an impartial jury, but in reality they are picking jurors based on the likelihood they will vote in a particular way. The prosecution and defense have t make arguments about which jurors should be struck, and the judge makes the decision. Many times attorneys are basing their cases based on experience or "gut feelings". Research has shown that their judgements are not reliable in predicting jurors decisions. Sometimes the recommendations actually to strike the jurors who are more likely to vote the way the counsel wants. Despite all the research, most attorneys are set and believe heavily in their judgement of potential jurors. Jurors have been shown in numerous studies (many done here at John Jay) to make judgements based on stereotypes, and jurors consistently make bad decisions in lab studies. This is a major problem of the adversarial system that does not receive a lot of public attention. I could talk all day about jury studies and racial bias in juries, but I really wanted to bring the issue to light.
Also Professor Reitz, I will ask Margaret Kovera why we call it Hot-tubbing next time I see her.
Great comments everyone! Sydney and Gina I appreciate the references to alternative lawyering strategies. Caroline, my assumption after reading this article
http://www.mwe.com/files/Publication/fa3c49c1-d18f-44eb-89cb-d50ac716a22b/Presentation/PublicationAttachment/725b089b-c684-43b9-94e2-febab3c6e8d7/The%20hot%20tub%20method,%20Arbitration%20News%20(Feb%202014).pdf
is that the colloquial "Hottubbing" stemmed from all parties sitting in the metaphorical "hot water" together. There is also "Radical Lawyering" strategies- the defense and prosecution actually collaborate about what would be the best possible outcome for the parties involved. Novel idea ;). Some radical lawyers function outside the adversarial justice system. Other radical lawyers stay committed to advocating for the most humane judgement within the system.
Aspects of radical lawyering are found in "Problem Solving Courts": http://www.nycourts.gov/courts/problem_solving/. Problem solving courts focus on one issue i.e. Domestic Violence, to insure that the best possible resources are being offered, coordinated and closely monitored for both the defendant and victim.
I worked in juvenile justice for 20 years as a therapist, advocate, researcher and policy analyst. The most successful example I saw of problem solving courts was in the San Francisco, CA Youth Court. Judge Abby Abinanti would meet with the youth's assigned Guardian Ad Litem, family, prosecution, teachers, coaches, social workers, friends, family, and any other supports relevant to the positive development of the youth. This multi-system team informed the judge of the best possible plan for the youth before she went through her docket. Her decisions were based on the team's recommendation.
This Youth Court was especially effective with the significant numbers of youth from Honduras in court for essentially being used as "drug mules." Mainstream practice was to detain and deport the youth. Judge Abinanti invited immigration advocates, child welfare services, and a host of other supports to develop a plan that would actually be in the best interest of the youth. This practice significantly reduced detention and deportation.
This strategy is of particular relevance with the flood of youth languishing in detention and on the streets at the borders between the US and Mexico.
STUDENTS! I'd love to read what YOU discover about alternative models to the adversarial justice system, and examples of radical lawyering within the adversarial system.
Really interesting. Ok, so two more points: 1) on Professor Rose's point about CA Youth Court, this seems SO RIGHT. It also seems resource intensive. What is the data on this? Is it cheaper, over the long run, than a cycle of incarceration and re-entry? It is obviously more humane, but I'd imagine they have to make the $ case, as well; and 2) more abstract. I think of the adversarial system more metaphorically. If we think of ourselves as adversaries (ok, so more like a simile) then isn't that a self-fulfilling prophecy? Like when we use "War on X" doesn't the metaphor of a "war" determine the way we approach the problem? Think of the name "Common Justice" (the demonstration project where Kevin is interning) and put that next to the word adversary, and think about it.
Re. Danyeli's point about capitalism, I will not say that $ doesn't talk. Of course it does, but maybe the capitalist ethos is also at work on a more metaphoric level here, too. We believe in this country (maybe it is true? maybe it is indoctrination?) that competition yields the best: medical care, technology, government, individual achievement. In a way, our court systems are really more of a competitive system (the coveted "wins" many of you have talked about and that Sotomayor discussed) than anything. Do we want our lawyers competing with each other to yield justice? Is collaboration better than competition? Always? or when is it not?
I am also excited to discover new alternatives to adversarial system. Please post anything connected with that topic. I am looking forward to read that. By the way, it is strange. When I start typing in Google the question which actually bothers me a lot: "what is truth?", results were all connected with religion. Is that any other way to find out truth:)? Everybody knows that truth is something illisuive, partial, dependent on characteristics of the knowers. Today, epistomology has changed sufficiently so that we need to reexamine the attributes of the adversarial system as the ideal type of a legal system, and to find our what truth really means. I wish truth would be something what is based on evidence. But what evidence? Looking the TV Shows about court trials and justice system, I tend to believe in our justice system less and less.
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