Thanksuing/Thanksgiving: A time to Appreciate, Reflect Upon and Ask Tough Questions About Our Adversarial System, by Vlad Frants

At trial, a prosecutor gets away with asking a witness, “the defendant choked you, didn’t he?,” whereas the witness merely stated during her preliminary hearing testimony that she was “lightly choked.”

While preparing his witness to take the stand, a defense attorney “clarifies” what he hears: “Correct me if I’m wrong, but you meant to say that you did not see the other car coming, right?”

During an investigation where a young boy insists that he was never molested by his teacher, overzealous detectives warn that if he doesn’t “disclose [what happened],” then the boy will grow up “gay.” [This example is from the “Complex Persecution: A Long Island Family’s Nightmare Struggle With Porn, Pedophilia, and Public Hysteria” article by Debbi Nathan (published May 20, 2003).]

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Certainly, the mechanics of a trial, such as the cross-examination process, and unequivocally unethical behavior, such as bribing a judge, are the clear-cut cases of “this is part of the adversarial system” and “this goes beyond what is permissible in the adversarial system,” respectively. However, it is less clear where the three above-mentioned examples would fit. Are these the sort of actions that belong in an adversarial system? Do they go beyond what we should expect from an adversarial system? And if instead they fit into that gray, “in-between” area, then does the legal community today draw that proverbial line too liberally? I argue that, in the pursuit of justice today, attorneys and other players in the criminal justice system (such as law enforcement) get away with actions that go beyond what should be permissible, even in an adversarial system. Most importantly, I posit that when it comes to actions that are best characterized as fitting in that “gray area,” where there isn’t a clear-cut case of “this is what the adversarial system should permit” or “this is not something that the adversarial system should permit,” the legal community permits attorneys (and law enforcement personnel) to get away with too much unethical behavior, and justifies this by saying that this is supposed to happen in an adversarial system. I disagree.

In the opening pages of his book, Steven Lubet explains that “[t]he objective of a trial is to do justice…[and] the ultimate purpose of the adversary system is to seek the truth, and thereby to distinguish right from wrong.” Steven Lubet, Modern Trial Advocacy, p 1 (2004). Looking at the first example above, where the prosecutor asks the witness whether the defendant “choked” her, while knowing quite well that the witness admitted that she was “lightly choked,” the attorney is not seeking the truth and is thus misusing the adversary system. As George Orwell noted, “language can…corrupt thought.” [George Orwell, “Politics and the English Language,” 1946]. And certainly, hearing that someone was “choked” versus “lightly choked” elicits completely different images in one’s mind and thus guiding one’s thoughts. Were the hands wrapped tightly around the other person’s neck? Or were the hands loosely resting on the person’s neck? Certainly, I wouldn’t want either one to happen to me – but each is a different reality. One scenario is the truth and the other is not. At best, the prosecutor is “leaving false clues [as opposed to outright lying] or simply remaining silent [by leaving out the word “lightly”]…,” which, according to Elliot Cohen, is even a characteristic mark of a morally bad person [See Ellion Cohen, “Pure Legal Advocates and Moral Agents: Two Concepts of a Lawyer in an Adversary System.” Pg3].

While it is impossible to argue that the prosecutor was linguistically correct in leaving out the word “lightly,” what in fact keeps this situation in the “gray area” (as opposed to the “goes beyond the scope of what is expected in an adversarial proceeding” category) is the fact that in an adversarial system the defense is expected to jump on this verbal exchange between witness and prosecutor during cross-examination – “…the hallmark of the Anglo-American system of adversary justice.” [Steven Lubet, Modern Trial Advocacy, p 70 (2004).] The availability of cross-examination makes the exchange between prosecutor and witness somewhat appropriate, irrespective of whether the defense actually sees to it that the witness clarifies that she had used the words, “lightly choked” in her preliminary statement. For me, this is insufficient. I think that it is inappropriate to rely upon other functions of the adversarial system (i.e. cross-examination) to mitigate the harm done in direct examination by a somewhat unethical, counter-truth seeking, exchange between prosecutor and witness.

When considering the second example above, about the attorney preparing his client to take the stand, the expression “it’s not what you say, it’s how you say it” comes to mind. And, regrettably so. I find it remarkable that an attorney can get away with indirectly prompting the client to say one thing or another, if he does so tactically. For example, had the attorney in the second example above said to the client “tomorrow you have to say…,” then this would be inappropriate. However, if the attorney is careful in what he says, he may indirectly guide the client without violating any ethical or professional code. Quoting former Supreme Court Justice Byron White who wrote, “Our interest in not convicting the innocent permits counsel…to put the State’s case in the worst possible light…In this respect…we countenance or require conduct which in many instances has little, if any, relation to the search for truth,” Frederic Dannen wrote that “[c]ritics tend to forget that in our adversarial system it is defense counsel’s prescribed role to be disingenuous if it will help win an acquittal for his client.” Frederic Danne, “Annals of Law: Defending the Mafia.” So this seems to suggest that the reason why “tactfully guiding” a client to say one thing or another during testimony remains in that “gray area,” and should not be considered to go beyond the scope of what is permissible in the adversarial system, is because it gives attorneys the opportunity to acquit innocent clients. But, this is not what an attorney is supposed to do – and certainly not something that should be embraced by the adversarial system, especially because everyone is presumed innocent until proven guilty in a court of law. “Through the use of logical theories and artful techniques, the advocate will present the most compelling arguments for her client,” not by fabricating the story. [Steven Lubet, Modern Trial Advocacy, p 1 (2004)] There is absolutely no justification for an attorney to be able to “tactfully guide” a client to tell aspects of the story, if the story did not, in fact, occur that way.

The third example above, where the detective attempts to coerce the boy into telling him the story he wants to hear, is an example of something that taints the trial later on. If the objective of a trial is to do justice, and the ultimate purpose of the adversary system is to seek the truth, then how can either of these be accomplished if the trial itself is based on falsities? Some would justify the behavior of the detective by making an argument which is completely opposite to Frederic Dannen’s argument. Whereas Dannen would argue that a defense attorney should do anything in his power to free the innocent, some would argue that a prosecutor or law enforcement personnel, as in this instance, should do anything in their power to penalize the guilty – even if it means using unethical means to extract the kind of incriminating evidence that they are looking for. This, and because of the deference the legal and broader communities tend to give our law enforcement personnel, keeps a lot of their actions in the “gray area” and not beyond the scope of what is permissible in an adversarial system.

For each of the examples above, there are arguments that justify keeping many otherwise potentially unethical actions carried out by members of the legal and law enforcement community in the “gray area,” as opposed to the “outside the scope of actions permissible in an adversarial system.” However, I wonder whether such arguments really do or should justify those actions, which are, in my opinion, unethical and problematic. Despite these arguments, I wonder whether the legal community has stopped to think about why we are still permitting these activities and questioning if the justifications that have permitted these actions really are sufficient. It seems that, absent the most egregious, clear-cut cases of impropriety, an attorney’s actions are justified as simply "well that's just how the adversarial system works." This is no longer a valid justification. The legal community needs to stop and think about what its members want from an adversarial system. As Elliot Cohen argues, “[f]or it is our full conception of the role of a professional which sets the parameters on the kind of personality compatible with that role and which serves to shape the personalities of its participants accordingly...”[Ellion Cohen, “Pure Legal Advocates and Moral Agents: Two Concepts of a Lawyer in an Adversary System.” Pg33.] Without giving these “gray area” actions more thought, simply maintaining a habit of justifying the unethical behavior we see as “natural consequences of an adversarial system” is no different than upholding an antequated tradition of stoning to death the unlucky villager who draws the wrong slip of paper from a little black box simply because that’s the way things have always been. [See: The Lottery by Shirley Jackson].

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