Summary Of Lawyers And Their Penchant For The Adversarial

In the video, Lawyers and Their Penchant for the Adversarial, Richard Heffner and Judge Marvin Frankel on the shift of lawyer’s role in the adversarial system. He also questions Judge Frankel whether the American adversarial system is failing to serve justice due to the defense’s only desire to win their case. In the second half of the video Judge Frankel shares his opinion of how the criminal justice system should change by removing police station confessions by making inadmissible at trial.

The American adversarial system allows someone accused of a crime to be able to defend themselves against the criminal charges. There are many complexities in the legal system that require defendants to hire a defense attorney. The defense attorney’s ultimate objective is to contest to evidence presented by the
prosecutor and to dissuade the judge and jury that his/her client is guilty of the crime for which they are accused. A defendant should have complete trust with his attorney and must let him know all the facts so that the attorney can build the best defense case. While the defense attorney should protect their client’s constitutional rights and make sure that proper justice is served. The problem discussed in the video is that many lawyers are no longer worried about justice nor are their clients. The only thing on their minds are winning their case, the lawyer for his pension, and the client for avoiding a conviction.

The defense counsel will do almost anything within their legal boundaries to win their case. This can sometimes result in defense attorneys stretching the truth in court with full knowledge of their client’s guilt. This makes people question if America’s adversary system is adequate to serve justice. As Judge Frankel stated, “lawyers aim less (in developing the truth) than an ideal system of justice”. This appears to the public like unethical defense misconduct, but there is an attorney-client privilege in which a defense attorney cannot disclose any incriminating information and must keep all conversations with his/her client private. Judge Frankel defends this position by explaining how the defense attorneys can only advise them on what they can do with their knowledge of the courts and that it is ultimately up to the client if he wants to take that route of stretching the truth. He also mentions that sometimes they won’t know the exact truth but that they are not in a position to judge their client. This issue brings up an important ethical problem within the American justice system.

Richard Heffner asks if we are at a disadvantage in this country because the adversarial approach of lawyers?
While it may seem that we are, The United States has more prisoners in jail than any other country. Despite the high number of prisoners, very few convictions happen in court. According to Judge Frankel, it is harder to get a conviction at trial in The US than any other country. The prosecutor has to a great burden to prove; he must convince the jury that the defendant committed the crime beyond a reasonable doubt which can be a difficult task. Most convictions are obtained through plea bargains for lesser sentencing hence why the jail population is so high. Many defendants plead guilty because the term would be shorter even if they had a high possibility of winning their case at trial. Judge Frankel gave the example of how a defendant might sit in jail because they couldn’t make bail for a year waiting to go to trial. In order to get out of jail faster they plead guilty rather than waiting for trial and pleading innocence. With this in mind, the conclusion can be made that the system is a disadvantage, not to society but rather to people accused of
crimes.

In order to fix the American justice system so that it can serve justice accordingly it must go under some reforms. One of Judge Frankel’s propositions to begin to fix the system is to not allow police station confessions to enter the courtroom as evidence. People who are accused of a crime are more susceptible to giving false testimonies in front of police officers. He believes that even with the Miranda warning some people are dumb enough to talk themselves into prison without the aid of a lawyer. His compromise is that after a crime is committed the defendant shouldn’t tell the police anything. He should be paired with his lawyer and given proper legal advice then go in front of a magistrate to be questioned in an open courtroom in public. With this method an attorney can guide his client on when to answer and not answer questions. This interview can be recorded and later used at trial so that the jury can compare the defendant’s current testimony with the one from back then. The practices of a defense attorney can seem a bit skeptical at times. Their sole purpose is to protect their client’s rights but they are also there to serve the defendant. A good defense attorney must not judge or contradict his client and must defend them zealously and competently. They must also advise their client about the risks of stretching the truth but ultimately must let the defendant decide what path to take in a criminal trial.