Injustice in the Adversarial System Essay

Donald B wish discussed in his hold in The Behavior of righteousness, when a confederation begins to grow and fit more mixed so does its profound constitution. The United States calls a arrangement that may no longer be fit for handling every(prenominal) the complex problems it is set about with. Society has come to learn done the referee clay that uprightness is very hard to find. The nature of the adversarial ferment may pr planet it from stint the uncoiled goal of every effectual establishment judge.This writing argues that the ashes in place now is non the correct one for the format society is in now. The adversarial address in place does not essay for the core determine of arbiter and Truth its inadequacies hit wrongful conducts in the effectual system. The profound system should abolish its value of inveiglening at either cost and the methods it practises to bring home the bacon this issue. This paper leave behind not only shake light o n the f uprightnesss in the legal system, but march separate structures that may be better suited for the present stage of society. formulaA few brief critiques of the adversarial put to work include that during a attempt procedure both sides ar conveyn the opportunity to present facts to the gore or judge, this allows attorneys to withhold evidence and benefit the side they represent. This confuses the coquets instead of elucidating the accuracy. Cases such(prenominal) as this should not be suitable to come to a felonious or not red-handed verdict, because guilt natesnot be proven with a degree of accuracy (Meadow, 1996). Stratification in law does select to contrariety and perpetuates injustice in society.The procedure that is used in our brutal justice system has the ability to lead to a false confession and create mistrust in the system. separatrix in our legal system does lead to injustice. All of these factors do create injustice in our legal system by sendin g innocent plenty to prison and/or by letting convicted felons free. There ar many theories in how to solve the problems with the adversarial summons and the legal system in general, but society must transpose the way it reasons before anything tidy sum truly alter.History of Common fairness and the Adversarial ProcessTo better understand the adversarial make it must number 1 develop through its history and origins. Common law practice developed the adversarial knead England adopted frequent law and made its practice make loven passim the world. Legislators began codifying the law, this later became common law. It was written so that it could be interpreted by the apostrophize system. When the lawcourts train a decision in how that law is to be applied it is pre take to heartd, and able to be used as a signpost for other baptistrys 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 r igid and did not easily allow for change ( open firetor, 1997). The English form of common law prohibited agency in court however, during the eighteenth century rough courts where beginning to allow legal representation in English common law. rasetually as time put acrossed, the role legal representation, attorneys, would grow and be more influential in society. The part the faithfulnessyers played in the court system would eventually be the aspect that separated the adversarial process utilize today in the United States from the processes in England. police force became more and more complex so the use of lawyers or professionals of the law was essential in American law making. New rehunt by Randolph N. Jonakait, New York legal philosophy School professor, apprizes that the United States adopted an adversarial process that somewhat resembled the English feign at the time.Besides the already mention use of lawyers, the U.S differed longly from England, during the eighteen th century America had prosecution with a familiar defender present in the court room comp bed to no legal representation for the impeach in the English model. Also in New Jersey nigh the same time period, attorneys usually appe ard for the prosecution and the defense which in England was rarely practiced. These findings demonstrate that the United States was a forerunner in the creation of the adversarial process that is present today (Jonakait, 2009).Search for TruthLawyers and Their TacticsOne of the main(prenominal) concepts of the adversarial system is the oppositional presentation of facts. The belief behind this is it will discover all truths to the matter. This leads to the conclusion of the first flaw that realistically everyone involved in the case is not in search of the truth. Lawyers are more apt to hide out the evidence that is not favorable to their side regardless of whether it would prove the innocence or guilt of the soulfulness on trial (Schroeder, 2012). Clients hire lawyers to win the economic state of the lymph node is directly related to the skill take aim of the lawyer they can afford. Lawyers who are more expensive will use any maneuver necessary to ensure a win.The search for truth is not a key value its keeping your client pleased, cosmos the defendant or the state. Attorneys are known to use problematical manoeuvre so that they hold in the vanquish possibility of winning their case. These tactics include creating doubt in the jury of guilt or innocence, or even by hiding evidence from the jurors. The search for truth and the work of justice cannot be fully performed if lawyers proceed to use unethical tactics.Solutions to the screen of EvidenceA purposed solution to hiding evidence can be demonstrated with a value demonstrated from the inquisitorial system, everyone in the court room works to come inher in search for the truth and justice. The judges, or investigative magistrate, are trained in their profession, ta king specific learning about law making them a vital resource to the legal system. While court is proceeding the judge is allowed to ask questions to keep a case in order. Using a system that does not inspire winning would divine service the hindering of evidence and other tactics cosmos eradicated form the court room. Although, one flaw with this system is the judge is minded(p) too much power and control over the proceeding, more justice is still found here searching for truth.Stratification in LawIt is proven that once arrested, black and minority defendants are fare worsened in the vicious justice system than their white counter separate (Westervely & Humphrey, 115, 2008). This is due to racial stratification in law and a bend based on race in convictions. Instrumentalist would say law is used to dominate classifys, and is structured so that it can benefit reliable groups by disadvantaging other groups, by allowing this to happen it perpetuates inequality (Bucher, 2012) . Many minorities are unable to pay for legal representation in this situation the courts give representation for them. This disadvantages minority psyches in low social coterie because they lack resources to secure a good lawyer, plot of ground high social military position clients are able to easily obtain skilled lawyers.This perpetuates stratification because stop number class individuals can evade the penalties of the legal system, unlike lower class individuals who cannot afford strong legal representation (Vago, 2012). Marxist theorists would confirm that laws serve the interest of the upper class, and because they use them like a tool, keep the upper class in power. This reinforces inequality in society through the criminal justice system, because the upper class will always be able to have access to more resources they will also always use those resources against the lower class (Bucher, 2012).Process in Criminal rightnessIs Justice Served?The pressure felt in a cas e created by media and the public eye have the ability to cause investigations to be sped up. The endangers the adversarial process to make mistakes and possibly out of convenience and pressure convict the first someone they think committed the crime. Once police officers make an arrest they escape to not pursue any other possible leads until the person they have in custody is proven to be innocent. This hurts the search for truth because officers experience close minded and search only for evidence to convict that individual. other factor that can deter the search for truth is false confessions. bastard confessions, among other factors, are commonly created due to unethical interrogation tactics or confused eye witnesses testimony.A confession is one of the close powerful pieces of evidence that can be presented in court (Westervely & Humphrey, 36, 2008). Even if the confession is false, juries have been known to take into consideration testimony even when told not to. False confessions are usually given by suspects who are coerced, confused, have doubt in-self, or shame. All this can be attributed to the psychological games used by interrogators, intentional or unintentional (Gudjonsson, 1992). Can true justice be served when police use unethical tactics to get their confession? This is a question scholars who study ethics have pondered with for decades.Bias in LawThere are many principles to consider when a jury is deciding a verdict. Racial beliefs, media and number of factors can find out a jurys verdict (David F. Hall, 1984). Since each individual interprets the process of the trial differently it greatly influences the decision of case. The way society is socialise leads to certain bias to people of different races, genders, sexuality, and backgrounds. These factors greatly influence a cases outcome, even though lawyers are allowed to select their jury it is impossible to know each person individually (Albonetti and Hagan, 1982). In common law, legislature creates the laws that are written down and left for interpretation by the judges of the court, this is called statutory interpretation (Bucher, 2012).The strength of this system of law is the ability that law has to change downfall is that it leaves room for bias in the interpretation of law. Some scholars suggest that law and the legal system is patriarchal. The feminist legal theory suggests that the legal system is male dominated and perpetuates gender discrimination (Bucher, 2012). Language can be biased in law the United States suffers from this weakness. In the payoff of Independence biased language is evident. All Men Are Created agree a line from the Declaration of independence has brought forth discussion and strife because of biases behind the words.Women have fought for their rights to be considered equal because society takes the patriarchal documents literal, progress is slowly made. Everything, including law, can be interpreted differently, making the j udges job detrimental to the court process. The discretion of the authority in the court system, although important, also creates inconsistency in the legal system. African Americans account for 49.4 pct of the 1.3 million Americans in prison (Westervely & Humphrey, 2008). Two different theories can formulate the bias in society that explains the high population of African Americans. These theories are the Individual history Theory and the Structural Explanation Theory.Individual Explanation TheoryThis theory focuses on the behavior and traits of those involved in a trial. Racism is a factor in explaining why an innocent person is tried. This happens because the adversarial system does not focus on searching for the truth and allows the jury to makes a decision on beliefs and prejudices of a certain race. Stereotyping is also include when a jury convicts someone on account of preconceived notions of a group (Westervely & Humphrey, 2008).Structural Explanation TheoryThis theory pro vides devil explanations for the bias. The first is the Blalocks Power-Threat Hypothesis. The hypothesis states that the increase in minority conviction is due to whites exhausting to keep power and control over minority races by disadvantaging them. The morsel explanation states that the treatment of minorities in the criminal justice system is a reflection of societal beliefs. Equality in the criminal justice system is not possible until everything else is equal (Westervely & Humphrey, 128, 2008).Plea-Bargains and its deficienciesDue to the amount of offenders that go through the U.S. court systems prosecutors are more likely to use plea-bargains to settle cases quickly. It is estimated that some 90-95 percent of all criminal convictions are arrived through pleabargains (Vago, 118). This tactic can be linked to stratification and inequality, when a person on trial does not have the finances for a good lawyer the assumption is that they will lose. This makes a plea-bargain more appealing, as it is the best option to avoid a longer execration (Kipnis, 1976). The Standing perpetration on Legal Aid and Indigent Defendants summarized the state of representation as follows Overall, there is abundant evidence in this report that defense run for the poor are inadequately funded. As a result, millions of persons who have a constitutional right to counsel are denied effective legal representation (Mosteller, 2011).This is another factor to cause change in the legal system so that truth can properly be found. The ability to plea-guilty hinders the search for truth and justice. In the inquisitorial system guilty pleas and plea-bargaining are not allowed so that the system can properly search for the truth. It does not give the accused rights, unlike the United States.While in the United States the adversarial process gives the accused the ability to plead guilty for a lesser sentence which some would consider soft on crime. In the adversarial process afterwards a confession is given, the investigation is typically over even if the individual is innocent. In the inquisitorial system a confession is not warranted since it is the responsibility of the court to come up with evidence and prove guilt (Berger, 1972). evilWith all this bias in our legal system this gives room for illusions in justice. An error in justice is any departure from an optimal outcome of justice for a criminal case (Frost, 2004). There are two types of errors that can be described systematic and random. Systematic is when there is an error within the law that consistently creates injustice. When a law is in enacted and it oppresses a certain group consistently this is systematic injustice. Random errors are created while criminal justice officials are enforcing the law and the error is sporadic (Frost, 2004). two of these can create errors of due process, which is when the rights of the accused are violated. The first error is miscarriage of justice an example of this is when an innocent man is convicted of a crime.The atomic number 16 type of error of due process is error of impunity, when an error in the procedure of due process is committed and as a result guilty convict is set free. Both of these do create great mistrust in the legal system and deter people from get involved within its legal processes (Sherman, 2002). This can lead to what Black was suggesting when he stated that law will shift back to a more primitive family based form of sanctions, because of mistrust in the authority that was supposed(p) to protect them.ChangeWith new understandings of societal factors (race, gender, sexuality) the adversarial system needs to be revised so that it aids the search for truth or it will be blinded by these factors. Society has grown complex and so has its problems with in the legal system. The courts must come up with different resolutions for crimes and convictions, not just a one size fits all solution. In essence the adjudication syste m is not wrong, but the misuse of evidence and tender-hearted error leads to mistakes. One might ask should we change the adversarial system on the whole or fix the many flaws within the system.The current process being used relies on the state (prosecutor) to determine if the court should or shouldnt present the evidence accumulated from the crime, or if that would benefit the accused in some way. All evidence should be given to a indifferent party, such as the court, and have the court system decide what should be done. This would remove the ability of the prosecutor to hide facts that could be essential to the investigation (Westervely & Humphrey, 2008).In an ideal system the court should base their decision after learning all the facts, without any evidence withheld from either side. There can be a mixture of different processes, which can better achieve justice in a complex society. For example, a different process would be needed to determine if a dangerous criminal is guil ty than that of finding parental rights. Forms such as the inquisitorial investigation, mediation, private problem-solving, group negotiating processes could be used to search for truth.ConclusionThe adversarial systems values do not match what the goals of the system should be. In the ideal system restorative and renewal justice would be utilized to the fullest in order to help the people going through the criminal justice process learn and become productive members of society. Societys beliefs are that of retribution and vengeance. Society as a whole wants to see criminals punished for crimes that they feel where committed upon them. To in all change the beliefs of the criminal justice system, society needs to change its values from retribution and vengeance, to a form of justice that will help society instead of looking for revenge.Values in the criminal justice system represent what that society believes in. The belief in winning shouldnt be enforced, like the adversarial proce ss has done, because it does not accomplish what the main goal of the criminal justice system is to provide justice to the citizens of the country the system serves, along with the search for truth. The values of rehabilitation and restoration should be the foundation on which we build our new system. If this is done than our society will begin to help its self in creating a strong nation that is just and true.ReferencesAlbonetti, Celesta and Hagan, throne. Race, Class, and the wisdom of Criminal Injustice in America. American Journal of Sociology, Vol. 88, No. 2 (Sep., 1982), pp. 329-355 Berger, Moise. The Case Against Plea-Bargaining. American Bar Association Journal. Vol 62.pg621.(1972) Black, Donald. TheBehavior of Law. The University of Michigan, Academic Press. 1976 Bucher, Jacob. Law and Society. Lectures. Baker University. 2012 Cantor, Norman F. 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