Week 11 dq Dynamics II

Law
Tutor: None Selected Time limit: 1 Day

  • Describe the adversarial court system and the trial process.
  • Is there a better system than the jury system?
  • How does the news media affect court decisions?
Feb 12th, 2015

The legal system in the United States is known as an adversary system. In this system, the parties to a dispute shall develop and present their arguments, collect and present evidence, call and question witnesses, and, within the limits of certain rules, control the process. The fact finder, usually a judge or jury remains neutral and passive throughout the procedure. Critics raise some troubling questions about the adversary system: is justice served by a process that is more concerned with the resolution of disputes with the search for the ultimate truth? Is it possible for people with limited resources to enjoy the same access to legal services like rich people resources? Do you have a system that puts a premium on winning encourage chicanery, manipulation and deceit? The trial of OJ Simpson, actor, sportscaster, and professional football player accused of murdering his ex-wife and her friend, 1995 yielded unprecedented scrutiny in the criminal justice system, and left many people wondering if the truth or justice play no role in its operation. Every day more than a year, the trial was televised in the homes of millions of people, most of whom had never seen the inside of a courtroom. They were fascinated and repelled by prosecutors and defense attorneys who argued relentlessly over seemingly trivial points. Even more disturbing to some viewers was the bitter insults happened between the two parties, as each tried to discredit the evidence and witnesses against them. Similarly, 1994 tests Eric and Lyle Menendez, wealthy brothers who admitted killing his parents, but whose first trials ended in hung juries, left many puzzled and angry Americans with a system that seemed incapable of condemning confessed murderers. Defense lawyers are quick to point out that the Constitution guarantees the accused is innocent until found guilty in a court of law, and it is impossible to protect the innocent without occasionally protect the guilty. Lawyers are required to challenge the evidence against their clients, even if it means challenging the police or attack the character of a witness or victim. It's your job to win an acquittal for any legal and ethical means within its powers.

Neglect the legal system has become a national pastime. In fact, criticism of the system comes from all corners of the landscape, including the top of the system itself. The deceased and Chief Justice Warren. Burger was frank in his lambasting of the system and lawyers, claiming they are too numerous and jealous, with too many frivolous lawsuits and motions, and there is a general failure of the system to encourage the amicable settlement of disputes. Burger was a vocal proponent of Alternative Dispute Resolution (ADR). He advocated the use of nonlitigious solutions such as mediation or arbitration as a means of reducing backlogs. Supporters of the adversary system point it is not clear that the savings reaped by ADR are always outweigh the costs. In situations where the parties are not on equal bargaining power, questions about whether the settlements are extracted through coercion arise. Some lawyers and litigants have indicated that ADR is often so contradictory in nature as litigation, with the evidence presented and favored a lawyer. They also complain that there is no guarantee that an arbitrator will be informed about the matter in dispute, and therefore does not guarantee a fair result. Certainly, during the 1980s and 1990s, the United States experienced tremendous growth in the number of civil lawsuits. The results were clogged courts, trial delays, and increased legal costs. However, experts disagree on how to solve these problems. Critics cry system reforms to address what they see as their shortcomings, while many commentators, especially those in the legal profession feel that the system, though imperfect, is really working the way it is designed to work and should not be altered. One criticism is that the adversary system is slow and cumbersome. The judge, acting as a neutral investigator facts, little can be done to speed trial, and the rules of procedure and evidence further delay the process. Similarly, the wide availability of appellate means that a final determination can take years. However, at least one study has shown that where adversarial court judgments and settlements actively discouraged encourages litigants still encountered substantial delays in the resolution. And supporters of the adversary system argue that a methodical, although cumbersome, the system is necessary for the protection of individual rights.

It is fair to question the ethics of a legal system that places a higher value on winning that search for truth. At least one commentator has characterized the system as one in which lawyers spend more time avoiding truth to be found. But proponents argue that vigorous clash of opposing views, finally the truth is obtained, which allows parties to fight in specific conditions ensuring fair play allows the truth to the surface alone. Many other complaints have been directed against the adversary system in the United States. Some think that because the parties control the litigation, are encouraged to submit only the evidence that is favorable to them and to suppress the evidence that is not favorable. The criticism of lawyers abound. Some feel that the code of ethics of lawyers encourages zealous representation at the expense of truth, so that lawyers, in the words of Burger, "murderers for hire" (In re Griffiths, 413 US 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 [1973]). Others complain that lawyers have too many frivolous lawsuits and have become too dominant in the adversary process. Some even say that the rules of evidence designed to ensure fairness to all parties actually work against justice by preventing critical information arising in the investigation of the facts. Proponents of the adversary system is quick to refute each review launched into it. They argue that it is necessary for the parties to control the proceedings in order to preserve the neutrality of the judge and jury. They point out that lawyers, although as susceptible to corruption as any other group, are governed by a code of ethical conduct that, when applied, deals effectively with cases of overreaching. And, while conceding that the evidentiary standards may be subject to manipulation, strongly maintained that such rules are the only means to ensure fairness and prevent judicial abuse. Criticism of the US legal system that may be more difficult to refute has to do with accessibility. It can be plausibly argued that an average defendant has the same access to legal representation as OJ Simpson or siblings wealthy Menéndez, nor can it be argued that a plaintiff injured in a civil trial is in a position of equal bargaining with a large corporation. However, supporters of the fight against the adversary system that unequal access to legal services is the result of economic and social conditions, not the structure of the legal system, and to change the way legal services are delivered not do anything to address the root causes of the disparity. They also note that the contingency fee agreement criticized, so a lawyer is paid a percentage of the award to her or her client receives, opens justice those members of the population who could not afford otherwise the legal representation.

Most legal experts agree that, in the long run, the adversary system results in benefits to society outweigh its inherent limitations. By allowing all parties to a dispute to be heard, the system of protection against abuse of power, and strength to those most at stake to focus on the issues in dispute. At worst, it can be manipulated for the benefit of the least deserving, but at its best, each injured party provides a forum for relief, sometimes against the odds powerful. No doubt the arguments about whether and how to change the system will go on into the twenty-first century. As a system that has developed over three hundred years, probably undergo some changes. But the basic values in your heart, as the presumption of innocence, the right to a jury trial and the protection of individual rights, seem to be firmly cemented itself as the cornerstones of American jurisprudence. The scheme of American jurisprudence in which a judge or jury renders a decision in a dispute between two or more parties who claim contradictory positions for judicial review, as a trial, hearing or other award. US courts have often been compared to the battlefields or playgrounds. The adversary system by which legal disputes are settled in the United States promotes the idea that legal disputes are battles or contests that fought and won using all available resources.

The contemporary Anglo-American adversary system has gradually evolved over several hundred years. Early English jury trials were structured procedures in which the judge could act as inquisitor or prosecutor, and the investigation of the facts. Criminal defendants were not allowed to have a lawyer, call witnesses, to conduct the interrogation, or to provide affirmative defenses. All kinds of evidence, and the jury was allowed, although supposedly neutral and passive actually were heavily influenced by the judge's comments and instructions. In fact, before 1670, the jurors could be fined or jailed for refusing to follow the instructions of a judge.The 1600s saw the late arrival of a more modern adversarial system in England and its American colonies. Jurors took a more neutral stance, and appellate review, were not previously available, was made possible in some cases. In the eighteenth century, jurors took an even more autonomous position as it began to function as a check on government and judicial abuse and corruption. The framers of the Constitution recognizes the importance of jury trial in a free society, specifically stating that the Sixth Amendment as a right in criminal proceedings. The Eight Amendment also guarantees the right to a jury in non-criminal cases: "In Suits at common law, where the value exceed twenty dollars, the right shall be kept to a jury trial, and no fact tried by a jury will be reexamined in any court of the United States, according to the rules of the common law. "

Feb 13th, 2015

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