So, this was a question on an exam I had the other day.

As the legal system is meant to provide balance and fairness between individual and societal rights and freedoms, is this end best met by an adversarial system in which the party with the best lawyer often wins?

Now, to me, this seemed like a loaded question where the Professor expects people to answer 'No'. I answered 'Yes', for this reason: Going on the assumption that the adversarial system is the best1, you cannot quantify a Lawyer's ability/competence and treat them like they're trading cards in a children's card game. As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling. How insane would it be for someone to declare a mistrial and demand for the case to be retried with different Lawyers because their Lawyer only had a 1500 score in Finance while the Prosecutor's Lawyer had a 2200?

As for discussion value, feel free to answer the question yourself. Maybe the Inquisitorial system is better or something. Iunno.

1Adversarial requires to parties to be arguing over a matter, which is why our court cases are referred to like this; 'Marbury v Madison'. The adversarial system is used in most common law countries, although I think the UK does use the inquisitorial system in some cases while France does it in most cases. America does not. This means that American courts will never hear cases that are based on 'what if' scenarios.

Kopikatsu:

As the legal system is meant to provide balance and fairness between individual and societal rights and freedoms, is this end best met by an adversarial system in which the party with the best lawyer often wins?

Now, to me, this seemed like a loaded question where the Professor expects people to answer 'No'. I answered 'Yes', for this reason: Going on the assumption that the adversarial system is the best1, you cannot quantify a Lawyer's ability/competence and treat them like they're trading cards in a children's card game. As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling. How insane would it be for someone to declare a mistrial and demand for the case to be retried with different Lawyers because their Lawyer only had a 1500 score in Finance while the Prosecutor's Lawyer had a 2200?

As for discussion value, feel free to answer the question yourself. Maybe the Inquisitorial system is better or something. Iunno.

The original wording for the upcoming referendum question on Scottish Independence was just bounced by the Electoral Commission because it used a similar sort of structure that was deemed to possibly bias towards answering "yes".

However, an undergraduate armed with a load of education and (assumedly) reasonable capacity of intelligent, independent thought should be expected to overcome such slight biases.

Well, it'd seem to be aimed at problematising a possible imbalance in the government/wealthy private clients being able to afford better lawyers, and hence potentially stand a better chance of winning. Though it could also be, is "balance between individual and societal rights" served in a system where it's two individuals who have control of the case?

Major law firms can afford to employ highly specialized lawyers, conduct very comprehensive searches for precedence, or hire people to do comprehensive fact finding in support of their case. They also cost significantly more than a random generalist lawyer to employ. This is no different than every other venue of life, where people who can/will devote more resources to a conflict stand a better chance of winning it.

So it's about whether the concepts "balance and fairness" apply only to the process of reviewing what's presented to the court, or also entail actively levelling the playing field for competing individuals in court. Either by having the court itself expending its resources to enlighten the case, or more realistically by supplementing the adversarial system, to pay poor clients' reasonable legal expenses up front when they sue the government and such.

As with all other welfare state steps, it's of course a choice for democratically legitimized politicians to make, not jurists.

Kopikatsu:

As the legal system is meant to provide balance and fairness between individual and societal rights and freedoms, is this end best met by an adversarial system in which the party with the best lawyer often wins?

Now, to me, this seemed like a loaded question where the Professor expects people to answer 'No'. I answered 'Yes', for this reason: Going on the assumption that the adversarial system is the best1, you cannot quantify a Lawyer's ability/competence and treat them like they're trading cards in a children's card game. As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling. How insane would it be for someone to declare a mistrial and demand for the case to be retried with different Lawyers because their Lawyer only had a 1500 score in Finance while the Prosecutor's Lawyer had a 2200?

As for discussion value, feel free to answer the question yourself. Maybe the Inquisitorial system is better or something. Iunno.

1Adversarial requires to parties to be arguing over a matter, which is why our court cases are referred to like this; 'Marbury v Madison'. The adversarial system is used in most common law countries, although I think the UK does use the inquisitorial system in some cases while France does it in most cases. America does not. This means that American courts will never hear cases that are based on 'what if' scenarios.

Do you think guilt or innocence should be determined by the size of the defendant's bank account?

Kopikatsu:
As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling.

I'm sure OJ Simpson will agree with you, not sure his victim would though.

Which is a sarcastic way of saying you can't claim that lawyer's skill is a valid part of determining guilt. A fair, working justice system is made in the way that the best lawyer loses if his client is guilty, and the worst lawyer wins if his client is innocent.

The above is of course a simplification of how things work, but it should be the general attitude when constructing or changing a justice system.


Not just that, but an adversarial system relies too much on everyone being able to defend themselves in court. And they can't. Many people can't afford legal proceedings and can't afford to get their rights as a result. An adversarial system operates on the false assumption that everyone can stand up for themselves legally, while they can't.

Leadfinger:

Kopikatsu:

As the legal system is meant to provide balance and fairness between individual and societal rights and freedoms, is this end best met by an adversarial system in which the party with the best lawyer often wins?

Now, to me, this seemed like a loaded question where the Professor expects people to answer 'No'. I answered 'Yes', for this reason: Going on the assumption that the adversarial system is the best1, you cannot quantify a Lawyer's ability/competence and treat them like they're trading cards in a children's card game. As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling. How insane would it be for someone to declare a mistrial and demand for the case to be retried with different Lawyers because their Lawyer only had a 1500 score in Finance while the Prosecutor's Lawyer had a 2200?

As for discussion value, feel free to answer the question yourself. Maybe the Inquisitorial system is better or something. Iunno.

1Adversarial requires to parties to be arguing over a matter, which is why our court cases are referred to like this; 'Marbury v Madison'. The adversarial system is used in most common law countries, although I think the UK does use the inquisitorial system in some cases while France does it in most cases. America does not. This means that American courts will never hear cases that are based on 'what if' scenarios.

Do you think guilt or innocence should be determined by the size of the defendant's bank account?

Guilt or innocence should be determined based on the facts presented in the case. A better lawyer simply means that said facts can be presented more effectively, and they can take advantage of the legal system to a higher degree. If you fail to support your side of the argument, regardless of the quality of the lawyer, then you deserve the ruling you get.

Blablahb:

Not just that, but an adversarial system relies too much on everyone being able to defend themselves in court. And they can't. Many people can't afford legal proceedings and can't afford to get their rights as a result. An adversarial system operates on the false assumption that everyone can stand up for themselves legally, while they can't.

An Inquisitorial system is no different. You still have to represent your case before the court. The only difference is that you're trying to convince the court of your innocence or the other party's guilt as opposed to letting them try to defend themselves. If you have no money, the legal system is going to fuck you either way.

It is interesting that this thread was posted when just recently I read this news article:
http://www.tagesschau.de/inland/prozesskostenhilfe100.html
"Two class justice instead of equal armaments?"
It's about plans in Germany by our center-right and loony-liberal government to reduce government support for court cases. That support is considered by many to be essential for the process of justice, because without equal means before the court, there may very well be a bias towards the more money-heavy side winning through better lawyers but also through, simply, a greater ability to "hold out" throughout the various courts that a long and drawn-out case may need to go through.
For that reason? Yeah, I think you need to ensure both sides have equal instruments at their disposal for justice to prevail and the court to be as objective and balanced as possible. Sure, lawyers still differ in quality and thus imbalances can come about, but at least on the outset you need to ensure as much equality as possible.

Kopikatsu:
An Inquisitorial system is no different. You still have to represent your case before the court. The only difference is that you're trying to convince the court of your innocence or the other party's guilt as opposed to letting them try to defend themselves. If you have no money, the legal system is going to fuck you either way.

Uh, no, not really. In such a case you can obviously present a case, but the government can also pursue them if victims are unable, or even, if they are unwilling.

An example of this are human trafficking charges while victims are too scared to press charges. In your system, it would mean that human trafficking and forcing women to prostitute themselves, would become legal as long as you use enough violence to keep them from pressing charges. While that's one very, very ugly world. Pimps are among the worst kind of criminals, the kind that sometimes makes you question why we replaced summary executions with fair trials.

A major handicap of the adversarial system is that the court has to pretend being completely stupid. Anything not presented is left out, while an inquisitorial system, that doesn't mean someone gets to walk away unpunished for their crimes, because a court can order additional investigation before ruling, or employ their own investigation depending on how it's arranged. For instance against organised crime, the inquisitorial system works much better. If the prosecution hits the usual code of silence in organised crime, it has nothing to present while it is clear the truth is out there, and the adversarial judge will have to rule that the organised crime member presented is innocent while they're guilty as sin, but equally good at hiding their crimes. An inquisitorial court can find the facts themselves, or order them found out, if they find the case is lacking all the facts.

To name a recent example: People rigged a speeding camera with explosives, and a member of the bomb squad sent to defuse it lost his hand when it detonated and would've died if he hadn't had protective gear, and another bomb defuser and a policeman were severely and permanently injured. The (suspected) perpetrators were arrested. They confessed to placing the explosive. The British lab hired to analyse the bomb remains screwed up however had nothing sensible to conclude. So the Dutch court ordered further investigation into the matter because the bomb's method of detonation was of crucial importance to the case. If there was a manual trigger mechanism you're looking at severals attempts at premeditated murder with a terrorist modus operandi. That's life in prison for both suspects. While detonation from friction or static electrity means provisional attempt at manslaughter or agrevated assault, ussually resulting in no more than two years in prison, and often no prison sentence and a 240 hour community service.
An adversarial court would've had no choice but to find the bomb makers innocent, and the three victims would've had no justice at all, the inquisitorial court got their additional investigation, and sentenced the bomb makers to 34 months and 20 months in prison, which reflected the findings that the bomb's detonation during defusal was accidental, rather than deliberately done at that moment by the suspects.

Another recent appeals case shows the importance even more. In this case, a woman buried her three babies in the backyard. A lower court mistakenly acquitted her because it couldn't be established the babies were born alive, while the chances of three consecutive stillbirths is neglicable, and the odds of one or more babies having been alive (and thus having been killed by their mother) is huge. Also the full verdict indicates that some medical mistakes were made in examining the bodies, meaning the court questions the stillborn diagnosis based on their own medical experts. The appeals court appointed a gynocologist and statistical expert, and will investigate the matter further, the appeals ruling said.
A likely outcome is that it's established either medically or statistically that she must've killed one or more of her children, after which she'll be sentenced to a prison sentence or justicial psychiatric treatment depending on how mental stability ( think the latter is more likely considering someone who does that is hardly in their right mind). In this case, an adversarial court would've failed, and what's likely a triple murder would've gone unpunished.

Blablahb:

Kopikatsu:
An Inquisitorial system is no different. You still have to represent your case before the court. The only difference is that you're trying to convince the court of your innocence or the other party's guilt as opposed to letting them try to defend themselves. If you have no money, the legal system is going to fuck you either way.

Uh, no, not really. In such a case you can obviously present a case, but the government can also pursue them if victims are unable, or even, if they are unwilling.

The reason that I'm not addressing the rest of your post is because it's based on a flawed premise. In criminal trials in an adversarial system, the state or federal government can and will prosecute regardless of how the victim feels about it. Say there's a guy named Billy Bob who has sex with an underaged girl. Neither of their families nor the people involved want to prosecute Billy Bob (In fact, the girl and her family actively opposes it) but the state will prosecute him regardless, and the case would be 'Billy Bob vs Minnesota' (If it happened in Minnesota). That is the purpose of the District Attorney's Office.

They don't say 'Oh, your son got murdered? Well, you can't afford the court fees, so the murderer walks free. Tough shit.' It's on the government to enforce their own laws, not the citizens.

Kopikatsu:

Leadfinger:

Kopikatsu:

Now, to me, this seemed like a loaded question where the Professor expects people to answer 'No'. I answered 'Yes', for this reason: Going on the assumption that the adversarial system is the best1, you cannot quantify a Lawyer's ability/competence and treat them like they're trading cards in a children's card game. As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling. How insane would it be for someone to declare a mistrial and demand for the case to be retried with different Lawyers because their Lawyer only had a 1500 score in Finance while the Prosecutor's Lawyer had a 2200?

As for discussion value, feel free to answer the question yourself. Maybe the Inquisitorial system is better or something. Iunno.

1Adversarial requires to parties to be arguing over a matter, which is why our court cases are referred to like this; 'Marbury v Madison'. The adversarial system is used in most common law countries, although I think the UK does use the inquisitorial system in some cases while France does it in most cases. America does not. This means that American courts will never hear cases that are based on 'what if' scenarios.

Do you think guilt or innocence should be determined by the size of the defendant's bank account?

Guilt or innocence should be determined based on the facts presented in the case. A better lawyer simply means that said facts can be presented more effectively, and they can take advantage of the legal system to a higher degree. If you fail to support your side of the argument, regardless of the quality of the lawyer, then you deserve the ruling you get.

Right. But if you can't afford an effective lawyer, how does this mean you "deserve the ruling you get"? It's not as if an untrained person could present their own case effectively, especially against a prosecution that enjoys the full resources of the state.

Kopikatsu:
The reason that I'm not addressing the rest of your post is because it's based on a flawed premise. In criminal trials in an adversarial system, the state or federal government can and will prosecute regardless of how the victim feels about it.

And can you also compel it if they don't? Plus there's a lot of civil sides to such a case, like damages done. That won't have to bother someone who's intimidated his victims in an adversarial court, but an inquistorial court would find this, and add it to the case.

Plus you're still stuck with that the adversarial system, the court has to play dumb, and can't rescue a case if the prosecution or the defense messes up.

Take for instance the scandal surrounding people being detained without a trial after hurricane Katrina. Archives flooded and cases were lost. People were being held because their lawyer had failed to present a case. An inquisitorial system would've had the court holding the ruling, instead ordering that to be done first. In that case nobody had bothered to give notice to the statepaid lawyers that the case even existed, because the administration in which that was stored had been flooded and destroyed. The suspects were in large majority very poor people, often without family or without the knowhow to fight on their own behalf. So they just sat in prison while innocent. An inquisitorial court would've rectified those mistakes over time during the proceedings. In the US however, the adversarial system failed, and innocent people were held imprisoned untill journalists eventually found out, aired the story and caused a scandal. Likewise it's likely that cases where the prosecution's case quite literally sank due to the flooding, will have had the guilty acquitted.

Leadfinger:
Right. But if you can't afford an effective lawyer, how does this mean you "deserve the ruling you get"? It's not as if an untrained person could present their own case effectively, especially against a prosecution that enjoys the full resources of the state.

I think you're misunderstanding how the legal system works. If you can't afford an attorney, the court will appoint you one. Court-appointed attorneys (Public Defenders) tend to be better than ones that you hire yourself, because they tend to have much more experience both generally and in the field that you're in court for. Public Defenders aren't unpaid, they're just not paid for by you. Since they're also hired by the state, they're just as good as the Deputy District Attorneys.

But as far as criminal trials go, yes. If you did not commit the crime, then proof cannot exist. Evidence can point to you, but there cannot be proof of something you did not do. I've been in court a few times, and it's actually very easy to support your side if it's worth supporting. The only exception is when the jury pool sucks (Which ended up getting the West Memphis Three sent off to jail- one went to Death Row, despite all three being innocent. Which is exactly why I waive my right to a jury trial in every instance that the court allows it. If you're innocent, you want a bench trial. If you're guilty, you want a jury trial.)

Blablahb:

Kopikatsu:
The reason that I'm not addressing the rest of your post is because it's based on a flawed premise. In criminal trials in an adversarial system, the state or federal government can and will prosecute regardless of how the victim feels about it.

And can you also compel it if they don't? Plus there's a lot of civil sides to such a case, like damages done. That won't have to bother someone who's intimidated his victims in an adversarial court, but an inquistorial court would find this, and add it to the case.

Plus you're still stuck with that the adversarial system, the court has to play dumb, and can't rescue a case if the prosecution or the defense messes up.

Take for instance the scandal surrounding people being detained without a trial after hurricane Katrina. Archives flooded and cases were lost. People were being held because their lawyer had failed to present a case. An inquisitorial system would've had the court holding the ruling, instead ordering that to be done first. In that case nobody had bothered to give notice to the statepaid lawyers that the case even existed, because the administration in which that was stored had been flooded and destroyed. The suspects were in large majority very poor people, often without family or without the knowhow to fight on their own behalf. So they just sat in prison while innocent. An inquisitorial court would've rectified those mistakes over time during the proceedings. In the US however, the adversarial system failed, and innocent people were held imprisoned untill journalists eventually found out, aired the story and caused a scandal. Likewise it's likely that cases where the prosecution's case quite literally sank due to the flooding, will have had the guilty acquitted.

Why should it be the court's directive to 'rescue' a case? If the prosecution or defendant fails to make their case, then that's righty the end of it.

Besides, I don't see why a few isolated incidents poison the entire system. The West Memphis Three, for instance, went to jail and one ended up on Death Row for a very long time while they were innocent. That doesn't make the system bad, just not perfect.

Edit: Forgot to mention, no, you cannot compel the DA's office to prosecute. The reason the DA won't prosecute is because they feel there isn't enough evidence to insure a conviction, so they won't even bother. Unless you personally come up with admissible evidence, then they're not going to reconsider.

Morally its not right for someone with a deeper pocket to win a case but the law is not in the business of deciding morality. So it is what it is, not the best system but there are enough protections built in to allow a just defense 99% of the time.

dmase:
Morally its not right for someone with a deeper pocket to win a case but the law is not in the business of deciding morality. So it is what it is, not the best system but there are enough protections built in to allow a just defense 99% of the time.

Actually, that is all law does.

Why is slavery, littering, torture, etc illegal? Because we (as a society) find these things morally reprehensible. The Greeks did not, so such things were acceptable, for example. Homosexuality went from being outlawed to accepted, because of a shift in public perception and morality.

Law and legality is all about morals and morality. That is the foundation for the entire system.

Kopikatsu:

dmase:
Morally its not right for someone with a deeper pocket to win a case but the law is not in the business of deciding morality. So it is what it is, not the best system but there are enough protections built in to allow a just defense 99% of the time.

Actually, that is all law does.

Why is slavery, littering, torture, etc illegal? Because we (as a society) find these things morally reprehensible. The Greeks did not, so such things were acceptable, for example. Homosexuality went from being outlawed to accepted, because of a shift in public perception and morality.

Law and legality is all about morals and morality. That is the foundation for the entire system.

There is a weird disconnect from morality of a group and morality as a philosophy. Every philosopher I've ever read says that law is not morality though it tries to imitate it. And morality often disconnects with law in all the examples you give.

Kopikatsu:

Leadfinger:
Right. But if you can't afford an effective lawyer, how does this mean you "deserve the ruling you get"? It's not as if an untrained person could present their own case effectively, especially against a prosecution that enjoys the full resources of the state.

I think you're misunderstanding how the legal system works. If you can't afford an attorney, the court will appoint you one. Court-appointed attorneys (Public Defenders) tend to be better than ones that you hire yourself, because they tend to have much more experience both generally and in the field that you're in court for. Public Defenders aren't unpaid, they're just not paid for by you. Since they're also hired by the state, they're just as good as the Deputy District Attorneys.

But as far as criminal trials go, yes. If you did not commit the crime, then proof cannot exist. Evidence can point to you, but there cannot be proof of something you did not do. I've been in court a few times, and it's actually very easy to support your side if it's worth supporting. The only exception is when the jury pool sucks (Which ended up getting the West Memphis Three sent off to jail- one went to Death Row, despite all three being innocent. Which is exactly why I waive my right to a jury trial in every instance that the court allows it. If you're innocent, you want a bench trial. If you're guilty, you want a jury trial.)

I understand about how the court will appoint an attorney for a defendant if he or she can't afford one. But there are some problems with this system you are overlooking. One problem is that in many places, the attorney who is appointed is not a public defender but a regular lawyer who the court pays (not very well) to take on public defense cases. In many cases, there's a cap on how much the lawyer can be paid per case, so if your defense is long or complicated, too bad. Also, it can take the court six months or more for the lawyer to be paid. There are some good lawyers that take on these cases out of a sense of public service, but there are also many inexperienced or incompetent lawyers who can't get better paying work. So you still have this problem where a poor person is much more likely to be convicted than a poor person.

Well, to chime in, at least in USA, an overwhelming majority of criminal cases doesn't even make it to the courtroom so the debate should not start at what ruling is given in a trial because of which side had which lawyer. Especially since the point of plea bargains is to settle the matters quickly and at a lower price, and the defense and prosecution are usually more concerned about the bottom line than justice, and neither side cares about what actually happens to the defendant as much as it does about how much that happening is going to cost.

Now imagine if all all defendants suddenly refused to take a plea bargain. Your judiciary would collapse within nanoseconds. And if a system can only function by relying on people opting out of using it to the full availability, well, that's a rather shoddy system.

Kopikatsu:

As the legal system is meant to provide balance and fairness between individual and societal rights and freedoms, is this end best met by an adversarial system in which the party with the best lawyer often wins?

Now, to me, this seemed like a loaded question where the Professor expects people to answer 'No'. I answered 'Yes', for this reason: Going on the assumption that the adversarial system is the best1, you cannot quantify a Lawyer's ability/competence and treat them like they're trading cards in a children's card game. As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling. How insane would it be for someone to declare a mistrial and demand for the case to be retried with different Lawyers because their Lawyer only had a 1500 score in Finance while the Prosecutor's Lawyer had a 2200?

As for discussion value, feel free to answer the question yourself. Maybe the Inquisitorial system is better or something. Iunno.

1Adversarial requires to parties to be arguing over a matter, which is why our court cases are referred to like this; 'Marbury v Madison'. The adversarial system is used in most common law countries, although I think the UK does use the inquisitorial system in some cases while France does it in most cases. America does not. This means that American courts will never hear cases that are based on 'what if' scenarios.

Well, it depends on whether or not decent lawyers can be accessed by your average lower-income Joe. If having a good lawyer gives you an advantage in court, then obviously there will be a certain level of unfairness between those who can afford good lawyers and those who cannot (or, those who can't really afford to go to court at all, for civil cases). Unless you're trying to say that there's no difference whatsoever between a good lawyer and a bad one?

Anyway, it's still probably the best system around. I'm not sure I'd trust an Inquisitorial court, lol. At least this way you get a real shot at a defense.

Kopikatsu:
Why should it be the court's directive to 'rescue' a case? If the prosecution or defendant fails to make their case, then that's righty the end of it.

Because a court case is not about who can present bigger stacks of paper, whether that's casefiles or banknotes. It's about fact-finding and justice.

"My lawyer/the prosecutor forgot to bring some papers" shouldn't be a reason why someone ends up in prison, or acquitted while guilty.

Blablahb:

Kopikatsu:
Why should it be the court's directive to 'rescue' a case? If the prosecution or defendant fails to make their case, then that's righty the end of it.

Because a court case is not about who can present bigger stacks of paper, whether that's casefiles or banknotes. It's about fact-finding and justice.

"My lawyer/the prosecutor forgot to bring some papers" shouldn't be a reason why someone ends up in prison, or acquitted while guilty.

For the former, negligence on behalf of the lawyer is grounds for retrial. In fact, it's one of the most common appeal arguments as it's seen as a simple matter of course if the defendant has been convicted and doesn't have a better appeals argument. In the case of the latter, that is not an inherent feature of an adversarial system, but rather a protection the federal government imposed upon itself.

The "adversarial" system works just fine, as its a good way of presenting both sides of the case.

The problem is when this battle is played out in front of a jury. I find it a gross injustice to allow a group of biased laymen to make important legal decisions. Court cases have been won and lost by a jury who later said that the one lawyer was more friendly, or that one of the lawyers was a jerk. Petty individuals who side with the lawyer that is "nicer" to them or even simply more attractive.

The common man doesn't have the training, knowledge, or moral character to make such important decisions. People resent this idea because every single person thinks he has the intelligence and ethics needed to arrive at a just decision, but the vast majority obviously do not.

Leadfinger:
Right. But if you can't afford an effective lawyer, how does this mean you "deserve the ruling you get"? It's not as if an untrained person could present their own case effectively, especially against a prosecution that enjoys the full resources of the state.

Actually, my understanding is that the results might surprise you. A study from a few years ago suggests that pro se criminal defendents don't do terribly worse in court than those with legal representation, as odd as it sounds.

Asita:

Leadfinger:
Right. But if you can't afford an effective lawyer, how does this mean you "deserve the ruling you get"? It's not as if an untrained person could present their own case effectively, especially against a prosecution that enjoys the full resources of the state.

Actually, my understanding is that the results might surprise you. A study from a few years ago suggests that pro se criminal defendents don't do terribly worse in court than those with legal representation, as odd as it sounds.

Judges probably do their best to protect them (or have a tendency to do so) and lawyers that seem to try to take advantage of the lack of representation lose some ethos and pathos. Or it could just be an indictment of the quality of work of state-appointed defense attorneys, I suppose.

Seanchaidh:

Asita:

Actually, my understanding is that the results might surprise you. A study from a few years ago suggests that pro se criminal defendents don't do terribly worse in court than those with legal representation, as odd as it sounds.

Judges probably do their best to protect them (or have a tendency to do so) and lawyers that seem to try to take advantage of the lack of representation lose some ethos and pathos. Or it could just be an indictment of the quality of work of state-appointed defense attorneys, I suppose.

Entirely possible. I have heard it said that the lower courts in particular are prone to bending over backwards to help people who represent themselves, but that's hearsay on my part and I don't know of any real studies that corraborate or dispute the claim.

Kopikatsu:
As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling.

I don't think I agree with this statement. A lawyer can do his best, but it still might not be enough (either because his best is not that good or the other lawyer is better) to acquit an innocent, and if the innocent is convicted, then the ruling is unjust.

Kopikatsu:

As the legal system is meant to provide balance and fairness between individual and societal rights and freedoms, is this end best met by an adversarial system in which the party with the best lawyer often wins?

Now, to me, this seemed like a loaded question where the Professor expects people to answer 'No'. I answered 'Yes', for this reason: Going on the assumption that the adversarial system is the best1, you cannot quantify a Lawyer's ability/competence and treat them like they're trading cards in a children's card game. As long as a Lawyer has supported their client to the best of their ability, then the ruling given is a fair and just ruling. How insane would it be for someone to declare a mistrial and demand for the case to be retried with different Lawyers because their Lawyer only had a 1500 score in Finance while the Prosecutor's Lawyer had a 2200?

As for discussion value, feel free to answer the question yourself. Maybe the Inquisitorial system is better or something. Iunno.

1Adversarial requires to parties to be arguing over a matter, which is why our court cases are referred to like this; 'Marbury v Madison'. The adversarial system is used in most common law countries, although I think the UK does use the inquisitorial system in some cases while France does it in most cases. America does not. This means that American courts will never hear cases that are based on 'what if' scenarios.

One solution could of been was to simply state that it is a loaded question, with built in bias by the wording. The teacher would have to confront the reality that they wrote a bad question to begin with.

Asita:

Leadfinger:
Right. But if you can't afford an effective lawyer, how does this mean you "deserve the ruling you get"? It's not as if an untrained person could present their own case effectively, especially against a prosecution that enjoys the full resources of the state.

Actually, my understanding is that the results might surprise you. A study from a few years ago suggests that pro se criminal defendents don't do terribly worse in court than those with legal representation, as odd as it sounds.

That was interesting and thought provoking information. I wonder, though. The number of people who choose to represent themselves is very small. Do you think if more people chose to represent themselves, it would lead to fairer outcomes?

In any event, I made this statement as part of a larger point that in the U.S. at least, the poor are hugely disadvantaged by the adversarial system.

Vegosiux:
Well, to chime in, at least in USA, an overwhelming majority of criminal cases doesn't even make it to the courtroom so the debate should not start at what ruling is given in a trial because of which side had which lawyer. Especially since the point of plea bargains is to settle the matters quickly and at a lower price, and the defense and prosecution are usually more concerned about the bottom line than justice, and neither side cares about what actually happens to the defendant as much as it does about how much that happening is going to cost.

Now imagine if all all defendants suddenly refused to take a plea bargain. Your judiciary would collapse within nanoseconds. And if a system can only function by relying on people opting out of using it to the full availability, well, that's a rather shoddy system.

Isn't that the case with every juridical system, though? Or many? That they offer a lower possible sentence if they plead guilty right away, and most people who are guilty (and know the evidence is stacked against them) do so?
I'm no jurist, so I don't know, but isn't it?

 

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