Injustice in the Adversarial System Essay Example for Free

In rightness in the Adversarial System EssayDonald Black discussed in his phonograph recording The doings of Law, when a monastic order mothers to grow and experience much coordination compound so does its healthy establishment. The linked States theatrical roles a scheme that may no longer be fit for handling on the hale the mingled problems it is faced with. Society has come to lead with the legal expert system that loyalty is very elusive to find. The nature of the adversarial process may prevent it from r either(prenominal)ing the true goal of every legal system justice. This writing argues that the system in place now is non the correct one for the show familiarity is in now. The adversarial process in place does non search for the core values of Justice and justice its inadequacies create errors in the legal system. The legal system should abolish its value of kind at all cost and the methods it engages to achieve this outcome. This paper will n ot only shed light on the f lawfulnesss in the legal system, but present opposite structures that may be better suited for the present stage of monastic order.BlueprintA few brief critiques of the adversarial process include that during a effort procedure twain brasss ar given the opportunity to present facts to the jury or judge, this allows attorneys to withhold evince and benefit the side they represent. This confuses the romances instead of elucidating the truth. Cases such as this should not be able to come to a guilty or not guilty verdict, because guilt pratnot be turn up with a degree of accuracy (Meadow, 1996). Stratification in law does lead to inequality and perpetuates injustice in society.The procedure that is used in our deplorable justice system has the ability to lead to a false confession and create mistrust in the system. warp in our legal system does lead to injustice. All of these meanss do create injustice in our legal system by sending innocent pe ople to prison and/or by letting convicted felons free. thither are many theories in how to solve the problems with the adversarial process and the legal system in general, but society must lurch the way it reasons before anything house truly change.History of Common Law and the Adversarial do workTo better understand the adversarial process it must first explain through its history and origins. Common law practice developed the adversarial process England adopted common law and made its practice known throughout the world. Legislators began codifying the law, this later became common law. It was written so that it could be interpreted by the courtyard system. When the courts make a decision in how that law is to be applied it is preserved, and able to be used as a guideline for other cases of the same nature. This proved to be a problem, decisions made by judges were establish on the customs of the time period, which became rigid and did not easily allow for change (Cantor, 199 7). The English signifier of common law prohibited representation in court however, during the eighteenth century some courts where kickoff to allow legal representation in English common law.Eventually as time progressed, the contribution legal representation, lawyers, would grow and be more influential in society. The part the Lawyers played in the court system would eventually be the aspect that separated the adversarial process implemented today in the linked States from the processes in England. Law became more and more complex so the use of lawyers or professionals of the law was all-important(a) in Ameri back end law making. New research by Randolph N. Jonakait, New York Law School professor, suggests that the coupled States adopted an adversarial process that somewhat resembled the English model at the time.Besides the already mention use of lawyers, the U.S differed greatly from England, during the 18th century America had prosecution with a public defender present i n the court room compared to no legal representation for the accused in the English model. Also in New Jersey around the same time period, attorneys usually appeared for the prosecution and the defense which in England was rarely practiced. These findings demonstrate that the United States was a forerunner in the creation of the adversarial process that is present today (Jonakait, 2009). attempt for TruthLawyers and Their TacticsOne of the main concepts of the adversarial system is the oppositional presentation of facts. The belief behind this is it will trace all truths to the matter. This leads to the conclusion of the first flaw that realistically everyone knobbed in the case is not in search of the truth. Lawyers are more apt to hide the render that is not favorable to their side heedless of whether it would prove the innocence or guilt of the person on trial (Schroeder, 2012). Clients hire lawyers to win the frugal state of the client is directly related to the skill leve l of the lawyer they can afford. Lawyers who are more expensive will use any tactics necessary to ensure a win.The search for truth is not a key value its keeping your client pleased, being the defendant or the state. Attorneys are known to use questionable tactics so that they maintain the best possibility of winning their case. These tactics include creating doubt in the jury of guilt or innocence, or even by hiding evidence from the jurors. The search for truth and the execution of justice cannot be fully performed if lawyers proceed to use unethical tactics.Solutions to the Hiding of EvidenceA purposed solution to hiding evidence can be demonstrate with a value demonstrated from the inquisitorial system, everyone in the court room works to lounge abouther in search for the truth and justice. The judges, or investigative magistrate, are trained in their profession, taking specific reading about law making them a vital resource to the legal system. slice court is motion the j udge is allowed to ask questions to keep a case in order. Using a system that does not glorify winning would help the hindering of evidence and other tactics being eradicated form the court room. Although, one flaw with this system is the judge is granted too much power and control everywhere the proceeding, more justice is still found here intrusive for truth.Stratification in LawIt is proven that once arrested, black and nonage defendants are fare worse in the criminal justice system than their white counter parts (Westervely Humphrey, 115, 2008). This is delinquent to racial stratification in law and a bend based on race in convictions. Instrumentalist would say law is used to dominate groups, and is incorporate so that it can benefit certain groups by disadvantaging other groups, by allowing this to happen it perpetuates inequality (Bucher, 2012). numerous minorities are unable to pay for legal representation in this situation the courts provide representation for them. T his disadvantages minority individuals in low social shape because they lack resources to secure a good lawyer, plot extravagantly social status clients are able to easily obtain skilled lawyers.This perpetuates stratification because upper berth naval division individuals can evade the penalties of the legal system, unlike lower class individuals who cannot afford strong legal representation (Vago, 2012). Marxist theorists would confirm that laws serve the interest of the upper class, and because they use them like a tool, keep the upper class in power. This reinforces inequality in society through the criminal justice system, because the upper class will eternally be able to watch access to more resources they will also always use those resources against the lower class (Bucher, 2012).Process in abominable JusticeIs Justice Served?The pressure matte in a case created by media and the public eye stomach the ability to cause investigations to be sped up. The endangers the adversarial process to make mistakes and possibly out of convenience and pressure convict the first person they count committed the crime. Once police officers make an arrest they tend to not pursue any other possible leads until the person they have in custody is proven to be innocent. This hurts the search for truth because officers become close minded and search only for evidence to convict that individual. Another factor that can discourage the search for truth is false confessions. False confessions, among other factors, are commonly created collect to unethical interrogative execration tactics or confused eye witnesses testimony.A confession is one of the most powerful pieces of evidence that can be presented in court (Westervely Humphrey, 36, 2008). Even if the confession is false, juries have been known to take into favor testimony even when told not to. False confessions are usually given by suspects who are coerced, confused, have doubt in-self, or shame. All this c an be attributed to the psychological games used by interrogators, intentional or unintentional (Gudjonsson, 1992). Can true justice be served when police use unethical tactics to get their confession? This is a question scholars who study ethics have pondered with for decades.Bias in Law in that location are many principles to consider when a jury is deciding a verdict. Racial beliefs, media and number of factors can influence a jurys verdict (David F. manse, 1984). Since each individual interprets the process of the trial differently it greatly influences the decision of case. The way society is socialized leads to certain deflect to people of different races, genders, sexuality, and backgrounds. These factors greatly influence a cases outcome, even though lawyers are allowed to select their jury it is impossible to know each person individually (Albonetti and Hagan, 1982). In common law, legislature creates the laws that are written down and left for reading by the judges of the court, this is called statutory interpretation (Bucher, 2012).The strength of this system of law is the ability that law has to change downfall is that it leaves room for bias in the interpretation of law. Some scholars suggest that law and the legal system is patriarchal. The feminist legal theory suggests that the legal system is male dominated and perpetuates gender discrimination (Bucher, 2012). quarrel can be sloped in law the United States suffers from this weakness. In the Declaration of Independence biased language is evident. All Men Are Created Equal a line from the Declaration of independence has brought onwards discussion and conflict because of biases behind the words.Women have fought for their rights to be considered equal because society takes the patriarchal documents literal, progress is slow made. Everything, including law, can be interpreted differently, making the judges job detrimental to the court process. The diplomacy of the authority in the court s ystem, although important, also creates inconsistency in the legal system. African Americans account for 49.4 part of the 1.3 million Americans in prison (Westervely Humphrey, 2008). Two different theories can explain the bias in society that explains the high population of African Americans. These theories are the singular Explanation system and the Structural Explanation Theory.Individual Explanation TheoryThis theory focuses on the behavior and traits of those involved in a trial. Racism is a factor in explaining why an innocent person is tried. This happens because the adversarial system does not focus on searching for the truth and allows the jury to makes a decision on beliefs and prejudices of a certain race. Stereotyping is also included when a jury convicts someone on account of preconceived notions of a group (Westervely Humphrey, 2008).Structural Explanation TheoryThis theory provides two explanations for the bias. The first is the Blalocks Power-Threat Hypothesis. T he hypothesis states that the increase in minority conviction is due to whites hard to keep power and control over minority races by disadvantaging them. The second explanation states that the treatment of minorities in the criminal justice system is a reflection of societal beliefs. Equality in the criminal justice system is not possible until everything else is equal (Westervely Humphrey, 128, 2008).Plea-Bargains and its deficienciesDue to the amount of offenders that go through the U.S. court systems prosecutors are more likely to use plea bargainings to settle cases quickly. It is estimated that roughly 90-95 percent of all criminal convictions are arrived through pleabargains (Vago, 118). This tactic can be linked to stratification and inequality, when a person on trial does not have the finances for a good lawyer the assumption is that they will lose. This makes a plea-bargain more appealing, as it is the best option to avoid a longer sentence (Kipnis, 1976). The Standing perpetration on Legal Aid and Indigent Defendants summarized the state of representation as follows Overall, there is abundant evidence in this report that defense services for the poor are inadequately funded. As a result, millions of persons who have a constitutional right to counsel are denied effective legal representation (Mosteller, 2011).This is another factor to cause change in the legal system so that truth can properly be found. The ability to plea-guilty hinders the search for truth and justice. In the inquisitorial system guilty pleas and plea-bargaining are not allowed so that the system can properly search for the truth. It does not give the accused rights, unlike the United States.While in the United States the adversarial process gives the accused the ability to plead guilty for a lesser sentence which some would consider soft on crime. In the adversarial process after a confession is given, the investigation is typically over even if the individual is innocent. In t he inquisitorial system a confession is not warranted since it is the duty of the court to come up with evidence and prove guilt (Berger, 1972). injusticeWith all this bias in our legal system this gives room for errors in justice. An error in justice is any personnel casualty from an optimal outcome of justice for a criminal case (Frost, 2004). There are two types of errors that can be described systematic and random. Systematic is when there is an error within the law that consistently creates injustice. When a law is in enacted and it oppresses a certain group consistently this is systematic injustice. Random errors are created while criminal justice officials are enforcing the law and the error is sporadic (Frost, 2004). Both of these can create errors of due process, which is when the rights of the accused are violated. The first error is miscarriage of justice an example of this is when an innocent man is convicted of a crime.The second type of error of due process is error o f impunity, when an error in the procedure of due process is committed and as a result guilty convict is set free. Both of these do create great mistrust in the legal system and deter people from getting involved within its legal processes (Sherman, 2002). This can lead to what Black was suggesting when he stated that law will wobble back to a more primitive family based form of sanctions, because of mistrust in the authority that was alleged(a) to protect them.ChangeWith new understandings of societal factors (race, gender, sexuality) the adversarial system necessarily to be revised so that it assist the search for truth or it will be blinded by these factors. Society has grown complex and so has its problems with in the legal system. The courts must come up with different resolutions for crimes and convictions, not just a one size fits all solution. In essence the adjudication system is not wrong, but the insult of evidence and human error leads to mistakes. One might ask sho uld we change the adversarial system entirely or fix the many flaws within the system.The current process being used relies on the state (prosecutor) to determine if the court should or shouldnt present the evidence accumulated from the crime, or if that would benefit the accused in some way. All evidence should be given to a neutral party, such as the court, and have the court system decide what should be done. This would remove the ability of the prosecutor to hide facts that could be all-important(a) to the investigation (Westervely Humphrey, 2008).In an ideal system the court should base their decision after learning all the facts, without any evidence withheld from either side. There can be a mixture of different processes, which can better achieve justice in a complex society. For example, a different process would be needed to determine if a dangerous criminal is guilty than that of finding parental rights. Forms such as the inquisitorial investigation, mediation, private problem-solving, group negotiating processes could be used to search for truth.ConclusionThe adversarial systems values do not match what the goals of the system should be. In the ideal system restorative and reformation justice would be employ to the fullest in order to help the people going through the criminal justice process learn and become productive members of society. Societys beliefs are that of retribution and vengeance. Society as a whole wants to see criminals punished for crimes that they feel where committed upon them. To completely change the beliefs of the criminal justice system, society needs to change its values from retribution and vengeance, to a form of justice that will help society instead of looking for revenge.Values in the criminal justice system represent what that society believes in. The belief in winning shouldnt be enforced, like the adversarial process has done, because it does not accomplish what the main goal of the criminal justice system is to provide justice to the citizens of the country the system serves, along with the search for truth. The values of rehabilitation and restoration should be the foundation on which we build our new system. If this is done than our society will begin to help its self in creating a strong nation that is just and true.ReferencesAlbonetti, Celesta and Hagan, tush. Race, Class, and the Perception of Criminal Injustice in America. American Journal of Sociology, Vol. 88, No. 2 (Sep., 1982), pp. 329-355 Berger, Moise. The Case Against Plea-Bargaining. American Bar Association Journal. Vol 62.pg621.(1972) Black, Donald. TheBehavior of Law. The University of Michigan, Academic Press. 1976 Bucher, Jacob. Law and Society. Lectures. Baker University. 2012 Cantor, Norman F. 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Ethics , Vol. 86, No. 2 (Jan., 1976), pp. 93-106 Meadow, Carrie M. The Trouble with the Adversarial System in a Postmodern, Multicultural World. William and Mary Law Review. V.38. 1996. Merrill B. Hintikka Jaakko Hintikka, How Can Language B e Sexist?, in Discovering Reality, supra note 31, at 139. Mosteller, Robert P. Failures of the American Adversarial System to Protect the Innocent and conceptual Advantages in the Inquisitorial Design for Investigative Fairness.2011. University of North Carolina School of Law. Sherman, Lawrence W. Trust and Confidence in Criminal Justice. NIJ Journal, March (2002) 23-31. Vago, Steven. Law and Society. Pearson Education, Practice Hall.2012.