The Adversarial Legal System: Is Justice Served?

The late New York attorney, Martin Erdmann, who in his day defended more than 100,000 people as a public defender, once said, “I have nothing to do with justice. Justice is not even part of the equation.”

There are 2 basic systems of justice, the adversarial system and the inquisitorial one. The adversarial system relies heavily on advocacy by each party with a relatively passive judge acting as an umpire – It is a battle between lawyers. In this system the lawyer has the duty to act zealously and faithfully for his client. Zealous, faithful advocacy means the obligation to search out all favorable evidence, to seek, neutralize or destroy all unfavorable evidence, and to press the most favorable interpretation of the law for his client.

In the inquisitorial system the judge takes a very active role while the lawyers have a very passive role. The judge actively steers the search for evidence and questions the witnesses, including the respondent or defendant.

Ours is an adversarial system. The basic values at its heart, such as presumption of innocence, the right to trial by jury, and protection of individual rights, appear to be firmly cemented as the cornerstones of this U.S legal system. Proponents say that the system is the best to preserve the neutrality of the judge and jury and to limit the corruption of both. While truth is good, justice is better. Forensic evidence supports justice but it does not always find the truth. For the proponents this is an acceptable choice. Proponents argue that the clash of opposing viewpoints eventually yields the truth, and that allowing the sides to fight it out under specific rules that guarantee fair play allows the truth to surface on its own. This is what the adversarial system is supposed to accomplish, and they feel it does.

Those who are opposed to this system point out that this is a system of procedural justice and not substantive justice. Whereas substantive due process is a real and tangible justice, procedural due process only goes through the motions of what looks like justice. Another criticism of the adversarial system is that a higher value is placed on winning, than finding the truth. Lawyers are more apt to hide the evidence that is not favorable to their side regardless of whether it would prove the innocence or guilt of the person on trial. Another criticism is that while we all have the right to be heard in a court of law in front of a neutral judge and an impartial jury, we apparently do not have the right to representation that is equal. The more money we have, the better the attorney we can hire, and thus the better our chances are of winning. Some even feel that too many poor and minorities are in prison and on death row because of this system.

Supreme Court Justice Ruth Ginsburg pointed out “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”

There may not be a better system but that does not mean that change is not necessary. Even some judges who hear criminal cases are in favor of change. If there is evidence that becomes available and proves someone’s innocence it must be heard – a person should be exonerated no matter when the truth is found. No person who is innocent should ever be executed when there is evidence that proves their innocence.

But in the meantime, another person proclaiming his innocence creeps closer to his day of execution; and we still see more and more people being exonerated after serving years and even decades in prison, wrongfully convicted.