VIEWS: 283 PAGES: 65 CATEGORY: Templates POSTED ON: 4/10/2010
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.
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 Notice to DocStoc Users: 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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