A) The 112th Congress’ purpose in establishing the law is presented in the OP. Some lawyers are better than others, which makes trials inherently unfair to at least one side.
B) That you “don’t know” is the goal of the thread. It’s science fiction. You take a future scenario; try and figure out what might happen, what seems the most likely given human actors and time; and throw it out there for others to chew on.
I do think the current system is screwed up: it’s insane to let a matter as significant as prison time be decided even in part based on how much money the defendant has. This is one of those areas like medicine and education where the free market plays a harmful role.
How do other countries avoid this problem?
It seems to me that if the prosecutor is chosen more or less randomly, and if the judge is chosen more or less randomly, defense attorneys could be chosen in the same fashion. As an alternate idea, the court could put a set amount of money into a pool by which to pay prosecution and defense attorneys. The defendant could also put money into that pool. The state would use half the money in the pool to hire a prosecutor (who would therefore no longer be a government employee, but rather a private contractor), and the defendant would use the other half to pay defense fees.
I’d see it as throwing out one of the pillars of our legal system - the idea of having an advocate in court. The legal system is complicated and most people are unfamiliar with it. When you go into court you may not have the best lawyer but at least you know he’s yours. He’s the only person there whose sole role is to assist you. He’s the person who supplies you with knowledge of the legal system to help you with your case. The judge and the opposing lawyer may have as much knowledge of the law but they are not present to assist you. So if you make the lawyers represent both sides then people in the court will essentially be on their own.
As a practical matter, this policy would just reinforce the benefits of being wealthy. If the official lawyers were bound to represent both sides then a wealthy person would just get around this by hiring an official lawyer to appear in court and then hire an unofficial “legal advisor” who would work solely for him outside of the courtroom and would help him prepare his case in the traditional way.
They don’t. Money is a primary form of power in our society and that gives a person who has more money an advantage. But this is not a unique flaw in our society. Virtually every society in history has had imbalances in power and the powerful have had advantages over the weak. You can’t design a system where the powerful and the weak can meet on equal terms. Once the system is in place the powerful will figure out ways to use their power to their advantage.
Ok. What will happen is that more people will go to jail, because the defense will no longer be able to withhold incriminatory information from the prosecution, communication between a defendant and his attorney will be impaired, the general quality of defense attorneys will go down, and trials will take twice as long and be twice as expensive.
It’s a bizarre and unworkable idea. The adversary system works, far more often than not, because counsel for both sides are doing their best, within ethical bounds, to represent their respective clients - in a criminal case, the state (be it a nation, state, or locality) and the defendant. You can’t have counsel for each side arguing the other side’s case under the current ethical code, and they couldn’t do it effectively anyway, given confidentiality rules.
By all means pay prosecutors and public defenders the same, taking into account experience and merit - I’m all for that! Not every state does. And frankly, from what I’ve seen in 14+ years of criminal practice, the average public defender is better than the average off-the-street private counsel appearing in a criminal case, because the P.D. will be more experienced and will have done nothing other than handle such cases, while the private lawyer won’t have done nearly as many.
Our justice system has plenty of problems, but this is no solution - it would mess it up even more. As Churchill said of democracy, “It’s the worst system, except for all the others we’ve tried from time to time.”
Or, as Shaw put it, “The theory of legal procedure is that if you set two liars to expose one another, the truth will emerge.”
My guess:
The high priced defense attorney would still offer a high priced defense, but offer nothing new for the prosecution.
Defense attorneys will still get hired based on successful defenses, which is a pretty big disincentive from helping the prosecution.
If there were a mechanism for ensuring that an attorney argued a case to standard, a better idea would be to simply apply it to the original prosecutor.
How do you force the lawyers to actually make a good case for the opposing side? Defense lawyers will still be hired based on their ability to make a good defense, and DAs on their ability to get the conviction, because there are obvious incentives for them.
All I see is that both attorneys would give lip service to the whole process. They’d do the absolute minimum they had to do for the other side to not get in trouble for it. That just wastes time. And, of course, if failing to argue the other side well enough is actually a crime, trying to prosecute them for it devolves into an absurdly recursive problem with no obvious solution.
Professionalism. Why shouldn’t they? Why should they make a good case for their own side as it is now, beyond professionalism?
Because lawyers, especially trial lawyers, are some of the most type A competitive sons of bitches you’ll meet. When a prosecutor or defense attorney gets up there, they’re doing it in large part because they want to win. They also do it because they believe in what they’re doing, and feel they’re serving the interests of justice by doing it. Prosecutors tend to believe they’re on the side of the angels by sending criminals to prison. Defense attorneys are defense attorneys because they believe just as sincerely that it’s their job to defend the innocent, and to keep the state from using its powers to bum rush somebody into prison. Prosecutors, as a rule, wouldn’t make good defense attorneys, and defense attorneys, as a rule, wouldn’t make good prosecutors.
This is especially true in the scenario you’re setting out. Lets say you’re Jack McCoy, from Law and Order, and you’ve got a pretty good case against this guy who’s accused of raping and murdering his neighbor. It’s not a perfect case…the eyewitness testimony is shaky, and there’s probably one of those Law and Order twists coming, but you’re pretty confident. So now after you’ve made your case, you have to then turn around and try to demolish it, pointing out all the weaknesses and tearing apart a case you spent so much time trying to build up?
Or you’re Perry Mason, and you know your client didn’t shoot her husband. Paul did the legwork and came up with the proof. So now that you know all this, you have to do Hamilton Burger’s job for him too? You have to put a woman in jail you know to be innocent?
I explained that in the very next sentence after the one you quoted.
They have a financial incentive to win. Trying to make them argue the other side well sets up an obvious conflict of interest.
I LIKE the question posed in the OP and don’t think it is such an insane idea.
I think the result would be unsatisfactory, though, because of the two lawyers being paid by, and having full access to, only one side each. It would be too difficult to enforce that they “will each also have to argue the case of the opposite side to the utmost of their abilities”.
What about this alternative? Both attorneys or teams of attorneys get paid the same amount. The government pays a set amount into an attorney payment bucket, and anybody (presumably primarily the defendant, but not necessarily) also contributes to the bucket if they wish. Then the bucket is split down the middle to the two legal side.
This sort of accomplishes the OP’s goal, because the rich couldn’t shift their average liklihood of serving time. Though it does still give the rich an opportunity to get a better trial, in the sense of a more accurate one because better people are involved.
I just want to re-frame the question a bit.
Your question really isn’t “what if lawyers were required to argue both sides,” it’s more “what if a new type of legal advocate were created, and no one could act as a lawyer, and the new type of legal advocate had to argue both sides.”