Creators Syndicate
August 6, 2024
Everyone accused of a crime is presumed innocent until
proven guilty — guilty "beyond a reasonable doubt." Those fundamental
rights are well known, but are they well understood?
America's criminal justice system is an adversarial
process. The prosecutor is pitted against defense counsel. The trial is a
"fight." The most flamboyant presentation; the ability to cast the
opposition in an unflattering light can often have more impact than the
underlying facts.
The system is contentious and competitive. Those who
practice the art of trial advocacy believe the best way to get at the truth is
to have each side advocate as strenuously as possible, in a partisan battle, to
convince the trier of fact that their side should prevail.
Much of what we know and perceive about the
adversarial system in America is shaped by movies and television shows.
Hollywood had the first try at bringing trials to the screen. Movies like
"Anatomy of a Murder," "12 Angry Men," "To Kill a
Mockingbird" and "Witness for the Prosecution" are courtroom
classics that still resonate today.
On the small screen, Perry Mason was the hero of his
day. Mason's character originated in 82 bestselling novels written by author
Erle Stanley Gardner. Mason was portrayed on television by actor Raymond Burr.
He starred in 271 hour-long shows from 1957 to 1966. Mason beat up on inept
prosecutors, conniving witnesses and corrupt police officers.
"L.A. Law," "Law and Order,"
"The Good Wife," "Ally McBeal" and "Better Call
Saul," to name a few, have — for good or for bad — influenced the way we
look at lawyers and the law. Heck, today you can stream live trials on your
iPad and take to social media to critique the participants in real time.
We have learned that, at times, real life can be
creepier, scarier and stranger than any classic movie or long running
television series.
The criminal justice system is not foolproof and has
never claimed to be. Beyond a reasonable doubt is not the absence of all doubt
or guilt by some mathematical certainty. What's more, a finding of not guilty
is not a claim to innocence. The system can convict the innocent and set the
guilty free.
In an adversarial system, judges focus on issues of
law and procedure and act as a referee in the contest between the prosecution
and defense. Juries decide the facts. Those laws and facts can often be
convoluted.
The law has become more complex and trials more
protracted. It was little more than 60 years ago when the U.S. Supreme Court
finally decided that individuals accused of a felony were entitled to legal
counsel. Today, merely having a lawyer in a capital case is not enough. Lawyers
without specialized training are off-limits in matters of life and death.
The complexity of trials and the time and effort that
must be committed to trying a case have all but eliminated trials as a
reasonable and accessible way to resolve disputes. According to the American
Bar Association, in nearly 98% of federal criminal cases and about 95% of state
criminal cases there is no trial at all, cases are resolved by plea bargain.
Former U.S. Supreme Court Justice Anthony M. Kennedy
wrote in a pair of cases in 2012, "In today's criminal justice system the
negotiation of a plea bargain, rather than the unfolding of a trial, is almost
always the critical point for a defendant."
Kennedy wrote that plea bargaining "is not some
adjunct to the criminal justice system; it is the criminal justice
system."
The adversarial process has been replaced by the
negotiation process. The burden of proof — beyond a reasonable doubt — has been
replaced by a "reasonable" agreement. The American criminal justice
system is the best in the world, but it is far removed from what the founders
envisioned.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book "The Executioner's Toll,
2010" was released by McFarland Publishing. You can reach him at
www.mattmangino.com and follow him on Twitter @MatthewTMangino.
To visit Creators CLICK HERE
Posts
No comments:
Post a Comment