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					          Today’s Lecture:




          The Adversary System




Session


  3
                              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)
                   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
                 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
                 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”
                      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?
Authors and their
   argument?

 False Case?
                    0
                    0
                    0
                     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
                     False Cases


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




                                       Question:
                                What are the facts of the
                                        case?
Facts of Case



                0
                0
                0
                                              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
                      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?
Is this wrong?


 should we
  make it
                 0
  wrong?         0
                 0
Everyone
 Votes!
           1.   Yes, lawyers should be      0
                allowed to do this.
           2.   No. Lawyers should not be   0
                allowed to do this.
                      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


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
                     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


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

     Legal Methods of Falsity
       -- cross examination
       -- direct examination
       -- jury persuasion
                     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


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.
                   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
     for your technical and professional skills
                                          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
       Question:            maximal goal (p.79) about this?
                               Mitchell are having

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?
(enter after the fact)



                         0
                         0
                         0
                   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
                   Maximizing Truth

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”
                   Maximizing Truth

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”
                                           Question:
  Question:
                                 Does the American system
 Is that true?                     really work that way?
 Is this true?


Does it work
 this way in
                 0
  America?       0
                 0
Everyone
 Votes!
           1.   Yes, it is good to do this.   0
           2.   No, it is not good to do      0
                this.
Everyone
 Votes!
           1.   Yes, this is the way it really   0
                works.
           2.   No, this is not the way it       0
                works.
                   Maximizing Truth

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”
       -- my guess is that the true ratio is about 6 to 4
                   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




     Separation of powers / checks and balances
                  Maximizing Truth

4. Some things to consider             Remember OJ
                                      wanted to have his
   -- Power corrupts?                  own crime lab?
   -- Fred Zain in West Virginia
   -- 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
   … no one is above misbehavior

				
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posted:1/14/2011
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