On The Asymmetry Of The Adversarial Justice System

We are used to thinking of the justice system as being finely balanced between the different parties, but that is not the case. In some cases, the balance can weigh differently, and efforts to redress what are apparent imbalances can create more notable imbalances in the opposite direction. Be that as it may, there is often at least a desire to balance the two parties, although there are certain asymmetries built within the system itself, try as we might to make the two somewhat even in their operation.

Let us note that there are several key parties in an adversarial justice system. We have a judge, whose job it is to engage in sentencing, if the defendant(s) is/are found to be guilty, and to ensure a level playing field during the course of the trial by dealing with objections and motions and providing fair jury instructions and so on. We have a jury, made up of twelve people (plus alternates) whose job it is to hear the testimony and arguments and to decide whether or not the defendant(s) were guilty beyond a reasonable doubt or not. We have a prosecutor whose purpose is to seek the truth and seek justice for the victim(s) of a given crime but who can all too easily be twisted into seeking mere victory, whether it is just or not. We then have a defense attorney, whose job it is to defend his or her client as vigorously and ably as possible, as well as the defendant, who stands on trial at the risk of his or her life or freedom.

Why is this asymmetrical? The key asymmetries come about between the prosecutor and the defense attorney and defendant. The prosecutor’s job is to seek justice, an aim that is inseparable from seeking truth, but it is sometimes easy, especially when justice is overly politicized, for such a person to seek conviction instead. On the other hand, as has been noted above, the defense attorney’s job is to get the defendant to go free by providing enough testimony from cross-examination or direct witnesses or exhibits to lead to reasonable doubt or even, as sometimes happens, the strong conviction of innocence. Similarly, the stakes are rather asymmetrical. A prosecuting attorney or defense attorney may lose a fair amount of business or their jobs if things go wrong, but a defendant’s life and freedom are at stake, and no one in the courtroom has higher stakes than the person standing at the bar.

It is vitally important for us to know who is standing at the bar in given situations. When we use trial language metaphorically, we like to think of ourselves as being the judge or jury, deciding various factors and fancying ourselves to be just and fair-minded people when it comes to determining and weighing and balancing what is true. Yet when it comes to our relationship with God and the Bible and truth, we are not the judges of what is true, but rather we are held accountable and judged by a true standard. As much as we might fancy ourselves as being the ones in charge, we all too often end up being the ones at the bar, or trying to do the adversary’s job by bringing up other people to the bar so that we may rejoice in their stress and discomfort. And is that a really worthwhile task?

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2 Responses to On The Asymmetry Of The Adversarial Justice System

  1. Catharine Martin says:

    This blog brings to mind a movie, “The Freedom Writers”, which is about inner-city high school students (some of them gang related) who were taught English by a starry-eyed, young, upper middle-class, first-time teacher. One jaded student stated that “justice” isn’t about finding the guilty person; it was about closing the case. I tend to believe that this perception is the reality in America’s adversarial system.

    It is right that the jury should be kept from all the news reporting in order to minimize bias; however, it allows rulings against the admissibility of evidence, which keeps these people–the ones who must ultimately decide the outcome based on all the facts–from knowing everything they necessary in order to render a “just” decision. Their ability to reach the truth is, as often as not, a crap shoot. Evidence after the fact has revealed that many innocent men have been executed while the guilty have gone free. DNA evidence is exonerating people who have been incarcerated for decades. The jury got it wrong because much of the truth was filtered out in some form or another. It is also being used to convict others for the same reason.

    Wealth is also a destabilizer because money can buy attorneys who know how to manipulate the legal system. Even though all people, including the indigent, have the right to legal counsel, their appointed lawyers–from the Public Defender’s Office–are severely overloaded with case files and underpaid. They barely know their client’s name, much less have had an opportunity to review their file by the time of arraignment. While the wealthy can negotiate their terms of bail or release on recognizance, the opposite is true for the poor, who often sit in jail until their trial–and through it.

    God makes no such distinction. He is our Judge and jury–a good thing because He created law and He is truth. The American system is divided against itself. The judge is the finder of law and the jury, the finder of fact–and may the two never meet. This is why appeals are so difficult to win. Our attempts to justify ourselves puts us at odds with Jesus Christ, our Defense Attorney–the One whose duty it is to advocate for us. When we point fingers and blame or accuse others, we take on the role of Satan, the accuser of the brethren. He is the spiritual prosecuting attorney, who brings us to court and puts us on trial because of our sins.

    King David set a wonderful example of how to treat one’s enemy–especially at his downfall. God never rejoices when this happens. David mourned when Saul died and commanded that the entire nation do the same. We should be sobered when these things happen, not gleeful or joyful. We are commanded to exhibit a type of love toward them that would enable us to honor them, wish them well and pray for them. Doing what comes naturally–loving only those who love us–is far from being worthwhile. It is considered worthless to God.

    • I am not familiar with the movie The Freedom Writers but there is definitely a related set of movies that deal with that phenomenon. The fact that the conviction rate is so high in our country that it leads to plenty of space for people to seek appeals when novel forms of evidence (like DNA) are relevant suggests that the American justice system badly fails when it comes to preserving the presumption of innocence for those accused and the cultivation of reasonable doubt as to whether the accused is guilty of all that they are accused of. Given that prosecutors are incentivized to seek convictions rather than to seek the truth of a given case, those prosecutors who do the devil’s work (as you accurate say) and who boast in their high conviction rate in the face of the lack of truth that is often discovered in cases do not do so at their credit.

      I was struck in watching so much of the Rittenhouse trial online–often with the commentary of various defense attorneys as well–that the prosecution actively hindered the efforts of the jury to determine truth by engaging in all kinds of fallacious reasoning and throwing all kinds of accusations to see if something stuck, and this cannot be an isolated occurrence.

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