Unlikely, but thanks. In return, I promise never to knowingly vote for KarlGauss or for myself.
Gah! I remember that too. Why I Defend Guilty Clients or something like that, and I’m as hazy on the details as you are. It was more than “a few” years back, too. Something about a fatal traffic accident, and the supposed driver wasn’t really, or some such?
What is in the best interests of the state, particularly since we are the state? If it is protection from criminals, then the simple solution would be to round them all up and gas them. Yes, it might be a bit extreme, particularly concerning shoplifters and their ilk, and yes, a lot of innocent people might get mixed in, but it would certrainly protect us from criminals. On the other extreme, if it is in the best interests of the state that all individuals be free, then the simple solution would be to close down all law enforcement agencies and all courts, give everyone a gun, and boy-howdy let’s all have at it. What I am getting at is that there are a lot of conflicting interests that must be accomodated when determining just what is in the best interests of the state, and it is a balancing of those interests that has led to where we are with an adversarial system.
The judge’s job is to be neutral, the appeal judge’s job is to be neutral (and there are several levels of appeal), and the judicial review judge’s job is to be neutral. The police’s job is to investigate, arrest and report. The Crown’s job it to investigate and prosecute. The defence attorney’s job is to defend the accused. All must play within the rules of the game.
If the defence attorney were to assist the police in their investigation and the Crown in its prosecution, then it would not be defending the accused – it would be investigating and prosecuting the accused. Accused persons would not hire defence attorneys and confide in them. That would leave accused persons without the assistance of counsel when being investigated and prosecuted.
The rules of the game can and are changed on an ongoing basis, by the elected Parliamentarians who make the laws, and by the neutral judges who apply the laws. When looking at balancing the protection of the public from individuals verses protection of individuals from public prosecution, Parliamentarians and judges have tended to take the position that the accused should have a lawyer. This ranges from the right to counsel being enshrined in our Charter of Rights (s.10), to provinces providing counsel to people who cannot afford it.
Note, however, that nothing is absolute. There are situations in which the defence counsel has an obligation to breach confidentiality. If a client tells me that they shot the sheriff, I cannot divulge this information. If a client tells me that he is going to shoot the sheriff, and I have reason to believe that he is actually going to do this, then yes, I would be acting appropriately in calling the cops. The rule of thumb here is that a lawyer cannot help a client break the law, and the lawyer should not break confidentiality unless it is a matter of imminent serious physical harm. If that is not a reasonable balance, then the mechanism exists to change that balance in either direction (for example, most recently, concerning the reporting by lawyers of large cash transactions – lawyers here are exempted from reporting internal cash transactions, but must report trans-national cash transactions of over $10Ks – there has been a lot of controversy over this).
Thus if one wants to oblige defence lawyers to disclose confidential or privileged information in certain extreme circumstances, it is simply a matter of getting the law amended. There is a very great difference, however, between permitting or requiring disclosure in certain extreme circumstances, and making it the norm.
Throwing out an entire legal system that has functioned reasonably well for hundreds of years, and putting in place a legal system in which the defendant’s lawyer assists in investigation and prosecution of the defendant, probably would not fly in Parliament, or in the Courts under our constitution, and quite frankly, I doubt if most folks would go for it. I know I sure wouldn’t, for if I were ever in a legal pickle, I would want someone to help me out against the powers of the state.
To continue from above –
Although dealing with juries rather than defence attorneys, you might find the history of recognitors interesting. Back in the 1100s, a recognitor was a cross between a jury member and a witness. (My great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-grandmuffin was one.) By the 1400, the roles of jury and witness were distinct. Error 404
At that time, there really wasn’t anything that we today would think of as on-their-feet-making-submissions defence counsel. In fact, up until the late 1600s, a defence counsel could not make submissions – they were more what we sould think of as legal advisors. By the early to mid-1700s they were cross-examining and presenting arguments in lesser matters, but not for most of the more serious matters, and even then they were restricted in what they could say concerning evidence or explanations. It wasn’t until the Prisoner’s Counsel Act of 1836 that we (as in England and its colonies) had what today we would think of as a real defence attorney.
Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries on JSTOR (fee)
http://www.historycooperative.org/journals/lhr/23.1/smith.html
Meanwhile, on the continent other forms of law were developing, including inquisitorial systems, more along the lines of what we might think of as a Royal Commission, or a low level administrative tribunal, where the person heading the inquiry more or less controls where the case is going. But even then, the defence attorney remains what we would think of as a defence attorney in terms of acting for the accused rather than for the state. Inquisitorial system - Wikipedia
Two points come out of this. First, under both the adversarial and inquisitorial systems, the defence counsel is there for the accused, not the state. Second, we didn’t get where we are all of a sudden. It took centuries, and I doubt if the system will start moving back to heavily restricting the role of a defence counsel, let alone putting in place a sea change by which the defence counsel becomes an agent of the state.
In this thread, the OP author has failed to show back up, regardless of what anyone thinks of his OP, so we can’t know what he thinks about our comments.
That’s the thing about this recreational outrage, it seems. The outrage is so short-lived that issues that made the person so mad are too soon forgotten. And consistent caring and productive action, which takes a more tempered response are not undertaken. Tempered responses seem more useful because of that.