Sunday, April 06, 2008

When does the adversarial system commence?

Even most non-lawyers know that the United States uses an a adversarial system of justice in both civil and criminal law. Recently in Rothgery v. Gillespie County, the US Supreme Court heard oral arguments regarding the question of precisely when the investigative function of police ends and the adversarial legal system commences - is it upon indictment, at the bail hearing, upon arrest?

Doc Berman has used the phrase "comfortable legal fictions" to describe high-minded but empirically erroneous theories undergirding the legal system, and one such fiction is the idea that, under an "adversarial" system, investigation and prosecution of crimes are separate functions. Police are "fact finders," under this theory, while the adversarial system as it's usually understood commences when formal court proceedings begin.

To judge by the oral arguments, Justices on SCOTUS appear inclined to decide that the adversarial functions of the criminal justice system commence sometime after arrest, either at the initial bail proceedings or perhaps weeks later upon indictment. The case should be decided later this year, so we'll get their official answer then.

But an excellent new book I'm reading right now, "Police Interrogations and American Justice" by Richard Leo, makes a strong case that the adversarial system really begins well before the point in the process discussed in Rothgery. "Once police have decided to interrogate a suspect," he argues, "they have, in effect, crossed the line that separates police work from prosecutorial work. They have aligned themselves with the prosecution in orientation and goal; their function at this point becomes more prosecutorial than investigative."

Leo says that "American police interrogators are adversarial in the sense that they are committed to the goal of incriminating the accused in order to assist the state in its prosecution"; they are "highly partisan, strategic, and goal directed."

Why is that a bad idea? "If police act as partisans or become committed to a prosecutorial agenda in their investigations, it is not just prosecutors whose perceptions and decisions may be distorted. Defense lawyers, judges and juries may also end up relying on biased, incomplete, erroneous, or one-sided information in forming judgments, making decisions, and dispensing justice."

Leo describes how police are trained and encouraged to use "fraud" and "deception" to elicit incriminating statements, an analysis even prosecutors would find hard to deny. Indeed, "unlike courtroom lawyers, police interrogators do not represent themselves as the suspect's adversary. Instead, in what must be one of the deepest ironies in American criminal justice, they portray themselves as the suspect's advocate."

Strong stuff, and Leo provides the evidence and concrete scholarship to back it up. As Anne Reed over at Deliberations declared, "There are briefs to be written out of this book. If enough of them win, the reforms Leo proposes in his final chapter might begin to take hold."

At a minimum, the portion of the book I've read so far tells me the debate over when the adversarial system commences will likely not be finally decided in Rothgery, save to preserve the comfortable legal fiction that police activities in the interrogation room are not aligned with the prosecution.


Anonymous said...

The cops want to convict everyone they arrest.

The prosecutor wants to win every case, and the only wins are convictions. Convicting on all charges is preferred to conviction on only some of the charges.

The judge wants convictions, despite protests to the contrary. Imagine a newly-sworn judge whose first case ended in acquittal, and then the second, and the third, and so on and so on. How many losses would his employer tolerate before he got yanked? So, yes, the judge wants convictions.

What about the defense attorney? He makes his best money by drawing out the process as long as he can, collecting all the fees he can along the way, and then getting a conviction, which lets him hope to shake some more coing from the money tree on appeal.

There is only one side in the courtroom, and that is the government's side. They even pick the jury they like -- the judge, prosecutor, and defender all working in collusion to 'improve' the jury more than a random selection, which by definition cannot be improved upon. The judge is not bound by the jury's decision, so the jury really is there just for show, a pretense of fairness.

What side is the accused on? He doesn't have a side, he's alone.

Anonymous said...

While there might be some legal definitional terms of art involved, it's pretty clear to the layman when the adversarial process begins in many cases. This is reinforced when the govt. refers to enforcement activities as "war", and dresses up the LEOs as soldiers. I could go on, but you get my point.

Good post!

Anonymous said...

American Police interrogation methods are utterly barbaric and wrongheaded. So about par for the course for this country.

Anonymous said...

There is only one side in the courtroom, and that is the government's side. They even pick the jury they like -- the judge, prosecutor, and defender all working in collusion to 'improve' the jury more than a random selection, which by definition cannot be improved upon. The judge is not bound by the jury's decision, so the jury really is there just for show, a pretense of fairness.

Random people have random biases. Weeding them out in voir dire is not collusion between the lawyers and judge, it's getting rid of preconceived notions and find the twelve who will most closely listen to the evidence and follow the law.

Gritsforbreakfast said...

Rage, if you believe a) that people are not entitled to their "preconceived notions" and b) that lawyers don't have any, that's totally fair. If you believe every citizen has a right to participate in the process regardless of race or "creed," or that the legal system has its own unstated biases, it's understandable that non-lawyers might not view jury selection so benignly, and perhaps they shouldn't. (Another word for "preconceived notions" is "values.") It's arguably the most important factor determining the outcome of a trial.

The truth is certainly some layered intermixture of both. Though I don't subscribe to Rose's conspiracy theory view of the justice system, neither do I believe that voir dire in criminal law weeds out "bias" - rather it encourages certain biases over others, which is a different matter entirely.

Anonymous said...

I must agree with all of the above comments, especially after what I have personally witnessed and experienced here in the Dallas County justice system. The police I encounter were not concerned about finding out the truth. The prosecutors following my arrest were equally unconcerned with what determing facts from fiction. And the Judges, particularly Manny Alvarez was the most dishonest, unprofessional and unethical person I have ever known that was allowed to sit on the bench.

Had I been in any other jurisdiction in this country, my arrest and indictments would of required much more truths/proof that a crime actually occurred. Far more then what the police and prosecution have relied upon to run up a $250,000.00 bill (and counting)that taxpayers have been left to pay. Prior to my arrest in 2005, had anyone told me that these sort of things were occurring and would continue on after D.A. Watkins came into office I would of argued them down. But even D.A. Watkins has shocked and disappointed many of those following my case by him promising to look into my case after I told him I am INNOCENT, last year during a criminal justice workshop during the Justice Summit held at Friendship West Baptist church. To date, D.A. Watkins has not fulfilled his promise because had he done so I would not be preparing for my first of two jury trials on April 21, 2008.

My cases gives D.A. Watkins and other "concerned elected officials" a blue print of things wrong with our county justice system that need to be addressed, especially in non-DNA cases. With all the DNA exonerations and pressure to free the wrongfully convicted where DNA samples are available, problems surrounding the prosecution of innocent people in non-DNA cases have literally taken a back seat whenever discussions about reforms and the Dallas County judiciary have been discussed.

I hope some day that convictions and locking up the majority of our society wont be the priority, although that doesn't seem likely because the Pew Center on the States released a devastating report, "One in 100: Behind Bars in America", finding that more than one in every 100 adults is now incarcerated in a US prison or jail. The numbers are 1 in 54 for men, 1 in 36 for Latino men, and 1 in 15 for African-American men.

Lakeith Amir-Sharif (Sharif)
Making The Walls Transparent (MTWT-Texas)