Injustice in the Adversarial System

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Injustice in the Adversarial System
By: Ryan McIe

Law and Society
SO380
Dr. Bucher
Baker University
September 20, 2012

Donald Black discussed in his book The Behavior of Law, when a society begins to grow and become more complex so does its legal system. The United States uses a system that may no longer be fit for handling all the complex problems it is faced with. Society has come to learn through the justice system that truth is very hard to find. The nature of the adversarial process may prevent it from reaching the true goal of every legal system: justice. This writing argues that the system in place now is not the correct one for the stage society is in now. The adversarial process in place does not search for the core values of “Justice” and “Truth”; its inadequacies create errors in the legal system. The legal system should abolish its value of “winning at all cost” and the methods it uses to achieve this outcome. This paper will not only shed light on the flaws in the legal system, but present other structures that may be better suited for the present stage of society. Blueprint

A few brief critiques of the adversarial process include that during a trial procedure both sides are given the opportunity to present facts to the jury or judge, this allows attorneys to withhold evidence and benefit the side they represent. This confuses the courts instead of elucidating the truth. Cases such as this should not be able to come to a guilty or not guilty verdict, because guilt cannot be proven with a degree of accuracy (Meadow, 1996). Stratification in law does lead to inequality and perpetuates injustice in society. The procedure that is used in our criminal justice system has the ability to lead to a false confession and create mistrust in the system. Bias in our legal system does lead to injustice. All of these factors do create injustice in our legal system by sending innocent people to prison and/or by letting convicted felons free. There are many theories in how to solve the problems with the adversarial process and the legal system in general, but society must change the way it reasons before anything can truly change.

History of Common Law and the Adversarial Process
To better understand the adversarial process it must first explain through its history and origins. Common law practice developed the adversarial process; England adopted common law and made its practice known throughout the world. Legislators began codifying the law, this later became common law. It was written so that it could be interpreted by the court system. When the courts make a decision in how that law is to be applied it is preserved, and able to be used as a guideline for other cases of the same nature. This proved to be a problem, decisions made by judges were based on the customs of the time period, which became rigid and did not easily allow for change (Cantor, 1997). The English form of common law prohibited representation in court however, during the eighteenth century some courts where beginning to allow legal representation in English common law. Eventually as time progressed, the role legal representation, lawyers, would grow and be more influential in society. The part the Lawyers played in the court system would eventually be the aspect that separated the adversarial process implemented today in the United States from the processes in England. Law became more and more complex so the use of lawyers or professionals of the law was essential in American law making. New research by Randolph N. Jonakait, New York Law School professor, suggests that the United States adopted an adversarial process that somewhat resembled the English model at the time. Besides the already mention use of lawyers, the U.S differed greatly from England, during the 18th century; America had prosecution with a public defender present in the court room compared to no legal representation for the accused in the English model. Also in New...
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