NCJ Number
188475
Date Published
2002
Length
11 pages
Annotation
In addressing the issue and nature of justice in America's judicial system, this chapter focuses on pretrial abuse, the inherent corruption of the adversarial system, abuse on the part of attorneys, witness tampering or coaching, and problems with the jury system; possible strategies for reform are presented.
Abstract
A tenet of the adversarial system is that each side's attorney will fight as hard as he/she can to counter the opposing side, promote its own interests, and "win" a decision in the case favorable to its own objectives. Thus, the attorney's duty of "zealous advocacy" is prescribed in the various professional codes that purport to delineate ethical conduct for attorneys. This makes adversarial excess endemic to the system, however. Although the system expects attorneys to adhere to the rules of evidence and confine their strategies to the ethical boundaries of the rules, they often bend the rules and stretch the strategies. Attorney abuses begin before the trial, particularly during the discovery process, during which a litigant may request of the opposing party any relevant information (not protected by privilege) that the party has or to which that party has access. Discovery abuses now constitute the single greatest source of dispute, delay, cost, and trickery in the adversarial system. Once a trial begins, tricks by attorneys can escalate, due largely to the bench's historically lax enforcement of professional conduct rules. Truth-corrupting practices by attorneys include coaching witnesses, untrue or misleading statements by attorneys, witness abuse, emotional appeals that distort or selectively interpret the evidence, tactics intended to distract or mislead the jury, and the use of partisan expertise. This chapter has one section on problems with the jury system and a concluding section on reform of the adversarial system, with attention to judicial practices and jury selection. 12 notes