Criminal versus noncriminal contexts

I have suggested that the adversary system excuse may be only as good as the adversary system. The question of how good that is, however, is often ignored by discussions that stop where they ought to start.

³¹ Monroe Freedman, Lawyers' Ethics in an Adversary System (Indianapolis: Bobbs-Merrill, 1975).

³² The fact that the ethics rules of most US jurisdictions forbid the former tactic, but not the latter, does not diminish the force of Freedman's argument for the former. In brief, he argues that the duty of a lawyer to investigate her client's case thoroughly, the duty to keep what she learns confidential, and the duty of candor toward courts (requiring the lawyer to blow the whistle on client perjury) are inconsistent: the lawyer can fulfill at most two of the three.

³³ Freedman, Lawyers' Ethics in an Adversary System, supra note 31, at 2, 4.

³⁴ John Griffiths suggests that this way of thinking reflects “little more than the concerns of the middle class in connection with the rare occasions on which it has to fear prosecution.” Ideology in Criminal Procedure or A Third “Model” of the Criminal Process, 79 Yale L.J. 359, 415 (1970). It is clear, of course, that despite the official rhetoric of the bar indigent criminal defendants do not often get the zealous advocacy the rhetoric promises; it is hard to see, though, why it would not benefit them if they did get it, and thus why it is a strictly “middle-class” concern. See generally David Luban, Are Criminal Defenders Different?, 91 Mich. L. Rev. 1729 (1993). Griffiths's point seems to be that treating the exceptional case of genuine zeal as a paradigm simply reinforces a false liberal political philosophy “assuming the inevitability of a state of irreconcilable hostility between the individual and the state,” Griffiths at 413 - a political philosophy that is “middle class.” I find Griffiths's view of liberalism implausible, but in any case, the liberal abstraction is a rather good first approximation of the relationship between individual defendants and state. Maurice Nadjari, lecturing his fellow prosecutors, told them that their “true purpose is to convict the guilty man who sits at the defense table, and to go for the jugular as viciously and rapidly as possible... You must never forget that your goal is total annihilation” (quoted in Frankel, Partisan Justice, supra note 22, at 32).

I think this is right as far as it goes, but as a general defense of the adversary system it is beside the point for two related reasons. The first is that it pertains only to criminal defense and thus is irrelevant to the enormous number of civil cases tried each year. The latter are in a way much more morally troubling. It inflicts no tangible harm on anyone when a criminal evades punishment or, as is much more common, receives a lighter sentence, through good legal representation. This is not to deny that people may be legitimately outraged when a guilty criminal walks out of jail sooner than justice may seem to demand. But no one’s life is made materially worse off. However, when A wins an unjust personal injury claim against B, every dollar in A’s pocket comes out of B’s. A’s lawyer, in my book, has a lot of explaining to do.

This point is worth emphasizing. Many people assume that the paradigm of the morally dubious representation is the defense of the guilty criminal, the defense that gets a murderer back out on the street. This, I suspect, reflects a perception of the justice system as primarily concerned with protecting the lives and property of Decent People (meaning us) from You Know Who (meaning you know who). It is You Know Who that needs watching, not the real-estate speculator, the slumlord, the redliner, the discriminatory employer, the finance company, the welfare officials who won’t give reci­pients their due, or the police.

It is this public preoccupation with crime and criminals, I think, that leads writers like Freedman and David Mellinkoff to focus their justifications of Broughamesque advocacy on criminal defense. They are reacting to an assault from the Right, an assault that sees the rights of the accused as a liberal invention leading to anarchy. Now, emphasizing the role of lawyers in safeguarding individual liberty may indeed be the best defense against the Law and Order attack on lawyers.

In fact, and this is my second point, criminal defense is a very special case in which the zealous advocate serves atypical social goals. The point is one of political theory. The goal of zealous advocacy in criminal defense is to curtail the power of the state over its citizens. We want to handicap the state in its power even legitimately to punish us. And so the adversary system - more specifically, zealous criminal defense - is justified, not because it is a good way of achieving justice, but because it is a good way of keeping the state honest, and we have excellent reasons for wanting this. The argument, in other words, does not claim that the adversary system is the best way of obtaining justice. It claims just the opposite, that it is the best way of impeding justice in the name of more fundamental political ends, namely, keeping the government’s hands off people. Nothing, of course, is wrong with that; indeed, I believe that Brougham’s imperative may well hold in criminal defense. My point is merely that criminal defense is an exceptional part of the legal system, one that aims at protection rather than justice.

One might adopt Aristotelian language and say that the “final cause” of the adversary system is different in criminal and in noncriminal contexts. In the latter, the primary end of adversary adjudication is legal justice, the assignment of rewards and remedies on the basis of parties’ behavior as prescribed by legal norms. The adversary method is supposed to yield accurate accounts of past behavior and legitimate interpretations of the law. In the criminal context, on the other hand, the protection of accused indivi­duals against state overreaching is just as central a goal as attaining legal justice. The criminal justice system aims to defend our life, liberty, and property against those who would wrongfully take them.

It seems, then, that focusing on the adversary system in the criminal context obscures the issue of how it works as a system of justice, and for this reason I shall talk only about arguments attempting to vindicate it as a system of justice. There are two sorts of arguments: those claiming that the adversary system is the best way of accomplishing various goals (consequentialist arguments), and those claiming that it is intrinsically good (nonconsequentialist arguments). To begin, we shall look at three versions of the former: (1) that the adversary system is the best way of ferreting out truth, (2) that it is the best way of defending people’s legal rights, and (3) that by establishing checks and balances it is the best way of safeguarding against excesses.