Question

Describe ways you could make our criminal law system less adversarial and outline steps you would take to do this. Be very detailed.  

Answer 1

Lawyers rarely admit that the justice system has failed for most of the general U.S. public. Even rarer is the public statement that depending mostly on lawyers to assist and resolve criminal legal issues will eventually lead to a complete breakdown of the legal system. Eighty percent of low-income individuals and the majority of moderate-income individuals do not get or believe in the justice system. It has been estimated that it would cost $20 to $25 billion to provide only for one hour of a lawyer’s legal services to meet this vast need for assistance. Plainly, throwing money and effort to provide lawyers to all who need legal assistance is not the solution, only out-of-the-box thinking and offering friendly suggestions and cautions might help.

Some suggestions for change within the existing adversarial legal system might help, the criminal justice system is based on all parties having lawyers who are adept with the law and who will advance the interests of their clients. But the current adversarial system is fundamentally unfair to individuals who represent themselves. The criminal law expects unrepresented litigants to know and understand how the law works and their rights, it demands them to have the ability to advance their interests.

In the current system, untrained individuals do not fare well when facing an opponent with a lawyer. Also, although two unknowledgeable parties without lawyers will ultimately resolve their legal issues, the outcome may not comply with the law or be just. The use of technology in today's times provides great access for being able to resolve legal problems but it does not necessarily obtain results that are fair or in accordance with the law either. reforms that just increase access to tools that can resolve legal problems but which do not assure adherence to the law and the achievement of fair outcomes is also an unjust system of practice.

Lawyers and the public must embrace the fact that the adversarial system in today’s criminal justice system does not work for the millions of individuals who have to face the justice system without lawyers. Using technology to provide better access, I urge the justice system to leave the notion fostered by an adversarial system that parties win or lose because of their ability to present their cases on their own, without transparency about rules and procedures and without assistance from the court, if needed. Instead, parties must be told what the law is and what both parties have to prove to win their case. They should be required to put forward their proof without the hurdles of discovery rules. They should receive a shared valuation of the strengths and weaknesses of their cases before negotiations take place or the lawsuit moves forward.

Courts laggard to implement simplification and plain language. Simplification and the use of plain language can be adopted with the development of technology. Implementing technology on a widespread basis without simplification and plain language complexes the problems that the average court user has with the legal system.

Widespread use of technology will not only benefit individuals struggling with legal problems, but it won`t be the solution for many of those individuals. Many users of the justice system will face problems created by poor education, dependence on oral instead of written communication by persons living in generational poverty, lack of access to technology, and technophobia. Some individuals will need lawyers and any number of substitutions for legal counsel will not suffice. Learning to juggle resources is crucial. The legal system must use technology to increase justice, but it must be careful not to resort to a one-solution-fits-all approach.

Many judges are reluctant to handle cases with disadvantaged litigants. Lawyers serve as a safeguard between the judge and the defendant. The education of judges on how to handle cases without lawyers would be needed to eliminate lawyers could be put in place.

Lawyers also serve as the eyes of the legal system, often setting right what happens in a courtroom that unqualified litigants would not recognize as wrong or have the power to change. Before lawyers are excluded, the criminal legal system will need to consider how to ensure that there are mechanisms for spotting and resolving problems in the courtroom.

Changing how the legal profession perceives criminal justice and its administration requires changing thinking embedded within the justice system since the founding of our country. Law schools and law professors must ignite conversations and be the catalyst for change.

The increasing number of pardons revealed by various ‘innocence’ projects has led to the realization that wrongful principles occur more frequently in the US than had previously been supposed. A number of legal scholars believe that the American justice system requires drastic reforms to better accommodate those who are ‘actually innocent’ (who did not commit the crime), as opposed to merely ‘not guilty’ (who committed the crime, but it cannot be proved that they did so). A new post of ‘judicial officer’ is proposed wherein a judge is trained in investigative techniques with a responsibility to uncover the truth. This judicial officer would supervise police investigations and make all information collected by the police available to the tribunal, before pre-trial. These reforms would require an accused who insists that they are in fact innocent to testify at trial, thus waiving the Constitutional right to silence/ the privilege against self-incrimination. The judiciary must also take a more active role. It would be for the trial judge, rather than the parties, to determine which witnesses are to testify, to lead the questioning of those witnesses at trial and to appoint expert witnesses to assist the court. The accused who maintains innocence to waive the right to silence during police questioning and to give unsworn testimony at trial. Similarly, a special process must be held for those accused who claim to be innocent, a process that commands a more thorough investigation of such cases by the prosecution, pre-trial. A judge should make it mandatory for those on the ‘innocence’ track to answer questions from state officials at the investigation stage and to give evidence at trial. I acknowledge the fact that requiring an accused to testify on oath would breach the Fifth Amendment, but the quid pro quo for benefitting from improved ‘actual innocence’ procedures is that the accused has to waive certain rights, including not only the right to silence but also the right to object to illegally seized evidence, and to trial by jury. In turn, there would be pre-trial disclosure by the prosecution and also by the defense. The accused who insist on their innocence should be required to co-operate with the police investigation, submit to questioning, and waive their right to confidentiality regarding communications with their lawyer. These proposals are radical in nature, predominantly where they encroach upon the confidentiality of lawyer/client communications and the defendant’s right to silence, two principles which many defense lawyers regard as sacrosanct. Many leading legal scholars embrace aspects of ‘inquisitorial’ or continental European systems of criminal procedure.

Examples: 1) pre-trial procedures should be overseen by a judicial officer.

2) Proposals for the trial judge to become a more active investigator ‘a mixture between pure adversarial and pure inquisitorial, one that moves closer to the procedural regime that exists in a number of civil law countries.’

Grabbing just a few elements from one system of criminal procedure and relocating them into another, quite different, the system is a sure recipe for disaster. The desire on the part of society, political and social activists for some sort of ‘magic bullet’ which will ‘fix’ all our problems, such solutions rarely work when directed at ‘grown orders’, rather than ‘made orders’. Made orders are fashioned whole, but grown ones are those which have evolved over many years: ‘the criminal justice system is a grown, not a made, order, just like the body is a grown, not a made order. This is the reason that the search for the magic bullet to cure cancer has failed, and why the search for the magic bullet to cure the criminal justice system is even more likely to fail. ‘I conclude that magic bullets which are shot into grown orders ‘have a way of producing deplorable results’ and caution: ‘If one is going to shoot a magic bullet, especially from a foreign land, care must be taken.