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The Adversary System: The Right to Present False Theories in the Social Ritual

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The Adversary System: The Right to Present False Theories in the Social Ritual Powered By Docstoc
					          Today’s Lecture:




          The Adversary System




Session                          Topic(s)


  3                               3
Lecture Organization:

     Class Announcements
      Help Topic: Professor’s Slide Methodology
    Help Topic: Navigating Class Lectures Online
     Course Paper

     Brief Review
     Trial as Ritual
      False Cases
     Maximizing Truth
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These slides are from a lecture given by Dr. Sean Wilson, Esq., at
Wright State University. To learn more and/or to view the lecture, click
the following:


                         Plays a flash movie of the lecture segment for the
                         slides in question


                   Takes you to a course webpage, where you
                   can access more information (get a syllabus,
                   etc.)



                          Learn more about the crazy
                          professor.




                                                                              Time
                 Class Announcements                    Time



Class Participation
-- don’t forget to hand it in at the end of the class
 Attendance Sheet
-- consistent signature;
-- if name doesn’t appear, print & sign name at the end
 Pop Quiz
-- New rule: pop quiz on reading questions
-- results factored into the midterm/final        Questions?
topic # 27


                    Help Topic: Professor’s Slide Methodology


         Why I use them
                                                     “thematic lectures”
             -- follow my lectures better
             -- to keep you from falling asleep                    “Cognitive Drift”

        Why I DON’T use them
              -- I don’t use them so you can copy everything down; I use
              them so you can pay attention better
              -- the point is not for you to copy what you see; copy what
              you hear


        4/10/2010                  Copyright, Sean Wilson. 2007.                       5
                   Help Topic: Professor’s Slide Methodology


        Pace

             -- When I taught without slides, my lecture pace was no
             different than it is now
             -- I’m not going to slow up
             -- whatever you miss will be online (copy what you hear)




Time
       4/10/2010                  Copyright, Sean Wilson. 2007.         6
topic # 43



                Help Topic: Navigating Class Lectures

         Website
       -- There is a new table of contents feature that has been added
       (let’s take a look …)
Table of Contents
4/10/2010   Copyright, Sean Wilson. 2007.   9
            “i” is for intro




4/10/2010               Copyright, Sean Wilson. 2007.   11
                “a” is for
             announcements




                                                     Any Questions or
Time                                                Concerns about the
                                                        Website?
 4/10/2010          Copyright, Sean Wilson. 2007.                        12
topic # 60


                                   Course Papers


         grading

              -- you have 4 things that are being graded:
                    • exams
                    • notes
                    • attendance
                    • papers




        4/10/2010                     Copyright, Sean Wilson. 2007.   13
         The Items




4   Writing Assignment

     -- worth 22% of your grade
     -- two options
         • interview paper
         • observation paper
         The Items




4   Writing Assignment

      Interview Paper
     -- pick at least two opposing or different
     members of the criminal justice system
         • police officer v. lawyer
         • defense lawyer v. prosecutor
         • judge v. lawyer
         The Items




4   Writing Assignment

      Interview Paper
     -- ask them the questions in the back of your
     syllabus, plus make up some of your own
     -- basic idea: compare and contrast opposing
     attitudes that you discover, and relate it to
     what you were taught.
         The Items




4   Writing Assignment

      Observation Paper
     -- go observe a least two different criminal
     court proceedings
         • magistrate court v. trial court
         • parole hearing v. suppression hearing
         • plea hearing versus “trial”
         • bench versus jury
         • federal v. state
         The Items




4   Writing Assignment

      Observation Paper
     -- all things being equal, these are not
     “different enough:”
         • magistrate court v. traffic court
                The Items




       4   Writing Assignment

             Observation Paper
            -- but these are different:
                • federal magistrate court v. state
                magistrate court




Time
topic # 61
                  The Items




        4    Writing Assignment

                  Basic idea
              -- subject comparison and contrast
              (you want to pick subjects that either make for
              a good comparison, or, at the very least, are
              not clones of one another)
         The Items




4   Writing Assignment

      Grading Criteria
     -- how much labor you put into the project
     (standard not a rule)
     factors:
         • page length
         • the time spent on each subject
         • the quality of the subject
         • the thoroughness of the paper
         The Items




4   Writing Assignment

       General Rules
     -- at least 30 minutes per subject
     -- write the paper with 1st person experience
     (like a diary)
     -- let me see it through your eyes
     -- analogy: paper about “going to the zoo”
         The Items




4   Writing Assignment

        Alert!
     -- the paper should be your easiest grade,
     provided you don’t do one thing:

                         Questions:
                     What is that thing?
                The Items




       4   Writing Assignment

               Alert!
            -- procrastinate
            -- if you wait until 2 weeks before the quarter
            ends to start it, you are sunk.
            -- court hearings will cancel (settle) on you
            -- you won’t be able to line up interviews.


Time
topic # 62
                  The Items




        4    Writing Assignment

                Rules!
              -- you can’t use your own court experience
              -- you can’t interview your family
              -- you are not getting an extension
              -- cancelled hearings are no excuses
              -- you are to have your subjects lined up by
              April 30th or face a grade penalty.
              -- start thinking about your subjects TODAY.
         The Items




4   Writing Assignment

    How to line up your subjects
     -- find some criminal justice participants that
     you know and ask them to sit for an interview
     -- find out where the courthouses are. Call the
     “court clerk”
         [explain what this office is]
                The Items




       4   Writing Assignment

            How to get an A.
            -- do multiple subjects
                • more than two interviews gets a better
                grade than just 2.
                • more than two observations …
                • throw an interview on top of an
                observation paper (something extra)
            -- let me see that you spent labor on this.
Time
            LABOR MATTERS, NOT APTITUDE
                              Review


Trial of Jesus
1. Trial Purpose (legitimately take life, liberty property)
2. Trial Method: Inquisitorial
3. Attitudinalism in judging
Grace Sherwood

1. Different Sort of Ritual
2. Suggestion: Trial Was a Social Ritual
                 conceptualizing guilt


Some examples:
O.J.
Jesus                  Form                  Function

                   De Jure Guilty        De Facto Guilty
        Facts:     (guilty according     -            -
                   to the ritual)        (guilty in reality)
                  Mala in Prohibita Mala in Se
        Law:      (wrong because it (it is inherently
Time              is prohibited)    wrong)
topic # 63


                             The Trial as Ritual


        historical forms of the ritual
             • Dunking
                 (witch trials)
             • Battle
             • Endurance
             • Lot
                 (remember the novel, The Lottery?)
             • Inquisition
                   The Trial as Ritual


basic idea
-- summon the ritual (social practice) to take life, liberty and
property
-- success in the ritual is what allows this. It’s what the ritual is
for
-- if life, liberty or property is taken through some other means,
it is illegitimate. But through the ritual of the trial the taking is
now “sanctified.”
                    The Trial as Ritual


basic idea

  compare: football champs

-- the ritual of conflict (the battle)
    “the best team prevails”
     (BCS?)


                                         Question:
                                Did the ritual of combat
                                 fail in the NCAA this
                                           year?
                    The Trial as Ritual


basic idea

  compare: football champs

-- the ritual of conflict (the battle)
    “the best team prevails”
     (BCS?)


                                         Question:
                          NFL: is the system in trouble if an
                            11-5 team cannot make the
                           playoffs, but an 8-8 team can?
                    The Trial as Ritual


basic idea

  compare: football champs

-- the ritual of conflict (the battle)
    “the best team prevails”
     (BCS?)


                                         Question:
                            And if the 8-8 team goes on to
                          defeat the “better team,” does that
                          mean the ritual is a kind of fraud?
                           The Trial as Ritual


       basic idea

         compare: football champs

       -- the ritual of conflict (the battle)
           “the best team prevails” (BCS can be illegitimate?)
           -- but note the problem with the ritual this year. Has the best
           team prevailed in the NFL?

                                                Question:
                                  Is the trial process a “fraud” if the
                                          guilty win the ritual?
Time
topic # 64


                           The Trial as Ritual


        ritualistic components today

             costumes
              • Judges wear dark robes
              • Judge has a gavel
              (England = wear wigs).
                 The Trial as Ritual


ritualistic components today

 atmosphere
   • swear on the Bible or on your honor


                                 Question:
                        What does that accomplish
                        socially? (Surely there is no
                                science to it)
                 The Trial as Ritual


ritualistic components today

 atmosphere
   • swear on the Bible or on your honor
   • stand when the judge enters and sit when the trial begins.
   • be well dressed.
   • chant when the judge arrives … “Oyez oyez”
                    For Trial as Ritual
West Virginia RulesThe Trial Courts

3.02 Opening Court
 ritualistic components today
When the judge enters the room for the purpose of opening court, the
sheriff, deputy, or designated bailiff shall say in a distinct voice:
    atmosphere
"Silence, all present will arise. The Judge of the _______ Court of
      • swear on
_______ County." the Bible or on your honor
     • stand when the judge enters and sit when the trial begins.
Then the sheriff, deputy, or designated bailiff shall make the following
      • be well dressed.
proclamation: "Oyez! Oyez! Oyez! Silence is now commanded under
pain of fine and imprisonment, while the Honorable Judge
      • chant when the judge arrives … “Oyez oyez”
_______________ of the ____________ Court of ____________
County, is sitting. All persons having motions to make, pleadings to
enter or actions to prosecute come forward and they shall be heard.
God save the State of West Virginia and this Honorable Court.“
                    For Trial as Ritual
West Virginia RulesThe Trial Courts

3.02 Opening Court Answer:
 ritualistic components today
            It’s enters seems for the
When the judgenaturethe room to be purpose of opening court, the
    atmosphereor designated purpose
sheriff, metaphysical. But it’sbailiff shall say in a distinct voice:
         deputy,
"Silence, all present will arise. The Judge of the _______ Court of
       seems to be something political
      • swear on
_______ County." the Bible or on your honor
        and social. Getting the right
                                                           trial begins.
     • stand when the judge enters and sit when thethe following
Then the sheriff, attitude frame.
                  deputy, or designated bailiff shall make
      • be well dressed.
proclamation: "Oyez! Oyez! Oyez! Silence is now commanded under
                                         Question:
pain of fine and imprisonment, while the Honorable Judge
                               How is … “Oyez oyez”
      • chant when the judge arrivesthis Court of ____________
_______________ of the ____________ different from a
                           blessing given at to make, pleadings
County, is sitting. All persons having motionsChurch? What is to
enter or actions to prosecute come forward and they shall be heard.
                                    it that this DOES?
God save the State of West Virginia and this Honorable Court.“
 Time            The Trial as Ritual


ritualistic components today

 so what?

                                   Question:
                       If the trial process is ritualistic,
                        should that trouble us? What
                           does it matter if it is true?

              Question:
 Is the trial process we have today
     designed to get at the truth?
topic # 65


                             False Cases


        assigned reading
       -- let’s go over it                 Question:
                                    Who are the two authors
                                      and what are they
                                        arguing over?

                                            Question:
                                     What do you think a false
                                            case is?
 Time                False Cases


definition
-- a “false case” is where the lawyer defends a client’s theory of
events even though he/she knows that the defendant is, in
truth, guilty.
   -- Doesn’t just defend by negating, but defends by
   advocating a theory of the case that is, in fact, not true
topic # 66


                            False Cases


         the case
       -- rape case
       -- strange and peculiar facts




                                              Question:
                                       What are the facts of the
                                               case?
Time




                                              illustration

“Atypical” facts:

-- ground too hard                     RAPE
-- went to his apartment
              Theory
-- went backTheory 2I
              for the watch
-- he walked her out of the building
                                        JUST SEX
-- left apartment to avoid being
discovered by his girlfriend
topic # 67


                             False Cases


        the lawyer’s role
       -- duty is to construct the false version before the jury



                      Question:
                   Is this wrong?

                                              Question:
                                       Should we make this
                                             wrong?
                      False Cases


the lawyer’s role
-- duty is to construct the false version before the jury
  the lawyer as soldier

       -- ultimate loyalty is to the client
       -- lawyer is not a bureaucrat; he/she does not work for
       the government (although the government may be the
       one paying).
       -- compare: Great Britain and the role of a barrister duty
       is to construct the false version before the jury
                     False Cases                     Time



other examples of false theories
   -- murder v. missing person
   -- O.J.: a drug hit
   -- DUI case: i wasn’t driving (switch seats)
   -- Intoxication: scientific error
   -- Theft: I thought I had permission (I was only borrowing)
   duty is to construct the false version before the jury
topic # 68


                               False Cases


        types of falsity
             -- the lawyer’s behavior must be obedient to certain
             parameters

              Illegal Methods of Falsity

             -- fixing testimony (perjury)
             -- fictitious documents (fraud)
             -- arranging an alibi (obstruction of justice)
             (Lawyer can be disbarred and/or prosecuted)
                    False Cases                      Time



types of falsity
   -- the lawyer’s behavior must be obedient to certain
   parameters

     Legal Methods of Falsity
       -- cross examination
       -- direct examination
       -- jury persuasion
topic # 69


                               False Cases


        negation v. affirmative construction
             -- negation is simply knocking down the other side’s
             allegations
             “I didn’t do that” (“no I didn’t defense”)
             Here is how you do it:
                 -- use cross examination to cast doubt upon the other
                 side’s witnesses
                 -- argue before the jury that the proof is not sufficient
                 (“they haven’t proved their case”)
                     False Cases


affirmative construction
   This is where you affirmatively construct your own theory of
   what happened, no matter that it is false
       -- hire experts
           • missing person case or murder?
           • the blood alcohol science is flawed
           • O.J.: the police put the blood in my room
           • Kennedy assassination: where the fatal shot come
           from? (head moving forward)
                     False Cases


affirmative construction

  experts
   Experts market themselves to one side or another (defense
   or plaintiff’s experts)
   You pay them for consults and informal opinions, but they
   don’t get their trial money unless you decide to hire them for
   trial
   In other words, you only buy what will help your case
   Many cases in the system have experts that testify to
   contradictory things
                     False Cases                      Time



affirmative construction

   Affirmative construction of false theory therefore requires
   you to use your own witnesses to actively construct your
   theory
   Much more than just negation
    Note: not optional!
   The adversary system REQUIRES that a lawyer do this on
   behalf of his or her client
   A lawyer is a GUN FOR HIRE. A soldier.
topic # 70


                                False Cases


             watch perjury issue!

               If a lawyer KNOWS that his/her client is lying on the stand,
               the lawyer must immediately withdraw from the
               representation
               You are not allowed to assist perjury
               … so here is what good lawyers do
                    False Cases


watch perjury issue!

  Strategic Intake Counseling

     -- will not ask “so did you do it”
     -- doesn’t want to know the truth; only wants to know the
     evidence and the client’s story
     (a lawyer’s intake counseling is not like a police report …
     this is what I found out today)
     Lawyer will first educate the client about the charge
     before he or she probes the crime’s explanation explain
     to the client what the rules are.
     .. example
                    False Cases


watch perjury issue!

  Strategic Intake Counseling

     “if I know you are lying, I can’t put the story on the
     stand”
     Then explains what the rights and defenses are
     (only contingently get into the story)
                   False Cases


watch perjury issue!

  Strategic Intake Counseling

    Example

 -- after explaining the alibi defense, the defendant then says
 “well I wasn’t there, and my cousin will testify to that.”
 -- Your job is not to question your client’s veracity. You are
 not his mother. You don’t work for the government or the
 public.
 -- All you do explain to him the risks involved in perjury and
 that if you ever become aware that the story is, in fact, not
 true – you would have to resign
                        False Cases


   watch perjury issue!

       Strategic Intake Counseling

        Example

         -- Other than that – if that’s his story, you go with it. You
         only critique it for the chances of whether it will win, not
         whether you are suspicious of its origins
         -- The standard is that you have to KNOW (certainty)
         that he is lying; not merely have suspicions
         -- He’s HIRING you NOT for your moral character, but
Time     for your technical and professional skills
topic # 71


                                               Question:
                                 One assumes that the process is
                                       What get at the truth; the
                                 designed to is the fundamental
                                 other assumes that is not theand
                                     disagreement that Subin
                                 maximal goal (p.79) about this?
                                    Mitchell are having
             Question:
  Who is right about this?
  Is the process designed
      to maximize truth?                       Question:
                                         What does this have to
                                           do with the truth?
                     Question:
                Is the truth served by
                      this or is it
                 compromised by it?
                                                           Time
topic # 72


                             Maximizing Truth


       1. There are two types of structures I want to describe to you
             Integrated Authority Structure
              -- power is concentrated into relatively few participants
              -- no checks and balances
              -- someone is the judge, jury and executioner
              -- examples:                             These systems
                  • mafia    How do they get at truth? maximize truth
                  • parent or fiduciary Do children have privacy?
                  • inquisitorial system                    Question:
                                                       But at what cost?
                                                          Question:
   Question:                                         Does the American
                          Maximizing Truth
  Is that true?                                      system really work
                                                         that way?
       2. Integrated authority structures have a danger to them
          -- more easy to corrupt (prosecute your enemies)
              (e.g, Russia?)
          -- they can “over judge”
          -- they can send some people away who are not guilty
          -- What is that wonderful piece of poetry used to describe
          the American adversary system?
              -- “It is better to let 10 people go free than to convict 1
              innocent person”
Time          -- my guess is that the true ratio is about 6 to 4
topic # 73


                             Maximizing Truth


       3. Because of the dangers of an integrated authority structure,
       America set up a different kind of trial system
         Disintegrated Authority Structure
             -- separation of powers and checks and balances
             -- right to silence
             -- burdens of proof
             -- rights to counsel and juries
             -- adversarial contest that can say something about truth,
             but only within the context of basic liberty first.
                                                 illustration

Separation of powers / checks and
                    The King
balances WITHIN the judiciary itself.
                        Leg
                       Jud
               (absolute monarchy)
                      Exec
                       Juries
                     Judge
                      Lawyers


                                     Question:
                         Is it really worth it? Is this an
                          antiquated idea from a day
     Separation of powers / that is now long passed?
                             checks and balances
                      Maximizing Truth

   4. Some things to consider                  Question:

       -- Power corrupts?                  Remember OJ
                                          wanted to have his
       -- Fred Zain in West Virginia
                                           own crime lab?
       -- California crime lab
       -- FBI files on Timothy McVeigh
       -- Story in your supplement about FBI misleading secret
       courts?
       POINT: there are good and bad “everythings.” Good and
       bad lawyers, good and bad police officers, good and bad
       military soldiers, good and bad judges
Time
       … no one is above misbehavior

				
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Description: This lectures covers the right of defense lawyers to present theories of cases that they know are false. It shows what lawyers can and cannot do. The trial is seen from the vantagepoint of a social ritual with roots deep in history.