Say, for instance, that it was decided by the 112th United States Congress that so as to combat the (perceived) inequalities in the justice system whereby those with more money can afford a better lawyer and hence escape the reach of justice where the poorer can’t, that they will make it so that trials will continue as they currently are except for that the defense lawyer and the prosecutor will each also have to argue the case of the opposite side to the utmost of their abilities, their wage being evenly matched by the US government.
Just off the top of my head, I’d suggest that bribery would become rampant as the defense and prosecution started passing money to each lawyer to present a worse argument for the opposite side.
How does a prosecutor offer up a best-of-his-ability defense of an alleged criminal without the ability to privately interview said alleged criminal (as a defense attorney can)? Seems to me without the ability to talk to the defendent, any kind of defense is crippled (violating rules of effective counsel), and with the ability to talk to the defendent, the prosecutor could learn information that he won’t be able to resist including in his prosecution (violating rules of legal confidentiality).
It would make trials twice as long. There would also probably be a lot of cribbing.
Prosecutor: Ladies and gentlemen of the Jury, we are here today seeking justice for a terrible crime. The prosecution will prove that the defendant…
<Prosecution puts on its case>
Prosecutor: Prosecution rests its prosecutorial case
Judge: Defense may begin its prosecutorial case
The defense attorney picks up the trial transcript:
Defense attorney: Thank you, your honor. <Reads from transcript> Ladies and gentlemen of the Jury, we are here today seeking justice for a terrible crime. The prosecution will prove that the defendant…
It wasn’t intended to be well thought out. That there would be repercussions entirely tangential to the purported purpose of the law, most likely for a sum negative, is a given and precisely the point of the exercise. That doesn’t make it any less interesting to try and think what precisely those repercussions would be.
The closest thing in real life to what the OP is proposing is probably the inquisitorial system of justice used in France. The judge is in charge of the investigation, not just the trial. His job is to find out the truth, not secure a conviction.
Which essentially means that criminals will have less incentive to reveal information to either of their lawyers. And it could mean that both lawyers would do their best to not talk to the defendant at all.
So figure the most likely outcome is that the “defense” lawyer would try to get the defendant to say as little as he could to the police. But whatever was said during the police interview, would form the entire base of knowledge (outside of physical evidence) for the trial.
Is that necessarily going to be a bad thing? If anything, I could see a bunch of defense lawyers sleeping easier at nights.
Doesn’t this get in the way of “effective assistance of counsel”? Seems to me anything that blocks a defendant’s free communication with counsel is problematic.
I’m not talking about interviews with police, where a defendent should keep his mouth shut, anyway. Before trial, though, the legal strategy pursued by a lawyer can depend heavily on information shared by his client. What if the prosecutor and defense attorney, in their required roles to defend, disagree about whether or not the defendant should take the stand? What if the defense attorney, in his required role as prosecutor, used information he learned in confidence?
I don’t think defense attorney insomnia is as a big a problem as you imply.
That was my point. There wouldn’t be anything learned “in confidence”. The lawyer wouldn’t view it as being his job to keep anything under wraps, but simply to make sure that the person received a fair trial. To accomplish that, quite possibly he’d tell the defendant to not tell him anything at all.
Well, aside from destroying the concept of legal confidentiality, what are you accomplishing? It’s unclear to me that the legal system in the U.S. is sufficiently broken to need so dramatic a change.
On further reflection, the biggest effect would to change a presumption of innocence (an innocent person, after all, could tell his lawyer everything without repercussions) to a presumption of guilt (a guilty person couldn’t tell his lawyer anything without repercussions).
If you’re starting with the assumption that all criminal defendents are guilty and the only thing keeping justice from being done is defense attorneys who game the system in their clients’ favour (an impression helped along mightily by Hollywood in recent decades), fine, put in place a system that cripples the ability to wage an effective defense. May as well do away with defense attorneys altogether at that point.
Can you flesh that out with examples? What sort of confidential knowledge is necessary for the defense that is both only a boon for the defense if the prosecution doesn’t know about it (until the trial, presumably), and isn’t necessary to be shared according to proper evidence sharing rules?
Well, let’s say the defendent has two alibi witnesses, which he mentions to his lawyer. The defendant also describes witness A as being an upstanding kinda guy with no criminal record, but witness B is kind of a creep who once admitted on a message board that he’d gladly commit perjury to help a friend, especially as a “fuck you” to the legal system. The defense attorney will cheerfully put A on the stand to testify the defendent was elsewhere when the crime was committed, but prefers not to put B on the stand, even to reinforce the alibi, because doing so invites the prosecution to try to impeach the character of B by introducing information about B’s past (assuming they thoroughly research B). The reason the defense attorney knows not to do this is because his client can speak in confidence about the nature of his associates. If the prosecutor knows this information and is compelled to as defense attorney, he may be inclined to call B to the stand (in his role as defender) just to impeach him and call into question the alibi and, by association, the character of the defendant (in his role as prosecutor).
How exactly would a lawyer who must argue both sides of a case approach witnesses, anyway?
If both lawyers are required to argue both sides of the case, then how can we label one as the “defense” attorney and one as the “prosecutor”? They’d both be doing exactly the same job. And if they’re both doing the same job, why do we need two of them?
It allows the defendant to choose someone that he trusts to give a fair trial. And it allows the government to choose someone that they trust to not throw the prosecution case.
That both lawyers are paid by both is a way to ensure that neither lawyer has any motive to throw the case either way. Their job is to make sure that everything is considered and both sides argued.
If there’s only one lawyer in the court and he is hired by the government to represent both sides, the defendant would necessarily argue that the one lawyer was chosen by the government as someone who would prefer their side.
If there was only one lawyer and he is hired by the defendant, the government would argue that the lawyer was chosen as someone who would prefer the defendant.
Regardless that the job is the same, with a two lawyer system each side believes one of them to be trustworthy and has little reason to complain.
Having two lawyers also opens the question of to whom is a higher waged lawyer worthwhile, if he’s going to be operating against you half the time? Would innocent people hire more expensive lawyers and guilty parties add the lowest bidder to the trial? Or would lawyer wages mostly flatten out? These are just some interesting question to ponder over.
Well so why is this a given to be a bad thing? That it is different from the way things are currently doesn’t mean that it is innately bad. In the end our purpose is to convict the guilty and to exonerate the innocent. Preserving the current rules of confidentiality for no other reason than that it isn’t how we currently do it isn’t really a concern.
Ultimately, more information gets put into the trial, and the same caliber of and even same person gets to examine the same data from both sides, which is theoretically of more use to the jury. There are two witnesses, one of them is trustworthy, one isn’t so much. But it seems more the job of the jury to decide the value of their testimony than for the defendant and the state to do so.
I suspect that he would get up and.
A) Verify what you know
B) Verify the reliability of that knowledge
Depending on the lawyer, he might expend as much energy on both of these as necessary, bringing up all the leading questions he can to show how questionable a witness might be or propse all the hypothetical alternate situations that would explain the testimony while not requiring guilt on the part of the defendant. But possibly the change in style would reduce the amount of theatrics since their premiere goal is establishing truth rather than acting as defense/prosecution. However, I suspect that some lawyers would be better at one or the other and this is largely what would factor into their being chosen by the defense or by the state more often.
I read it, but the thing is, in the current system, there already are two lawyers, one who represents the State’s side to the best of his ability, and one who represents the defendant’s side to the best of his ability, so I don’t know how your system is better than the current one.