Finding the Truth: My Proposed Solution to Assembly Line Injustice
The criminal justice system does not operate as a reliable mechanism for justice or truth. Prosecutors, the most powerful actors in the legal system, push for convictions rather than scrutinizing cases to find the truth. Justice has become less valuable than efficiency. I believe that combining prosecutors’ offices and public defenders’ offices and requiring the attorneys to rotate through both positions would fundamentally change the nature of the legal system. It would engender empathy for accused individuals, encourage a greater commitment to getting to the truth, and ultimately create a system that has more fair outcomes. These changes require a shift in one of the fundamentals of our legal system.
Our legal system is an adversarial system; there are two opposing sides who present evidence and advocate for a certain resolution. In fact, lawyers are ethically obligated to zealously advocate for their clients by accurately and emphatically representing their interests. In essence, the adversarial system is meant to lead to finding truth because both sides are able to present their argument to a neutral body for adjudication, such as a judge or a jury. A trial purports to balance the rights of the accused individual with the interests of the government by assigning each side an advocate to zealously advocate for them. This system is idealistic in that it presupposes that both sides are equally capable of representing their clients’ interests. In reality, zealous advocacy does not result in truth nor justice when the balance of the advocates is strikingly uneven. Furthermore, the vast majority of cases are not adjudicated by a neutral third party. 95% of cases are resolved through plea deals and prosecutors hold all the negotiating power. This means that the outcomes match the interests of the prosecutors, rather than the neutral arbitrator’s interpretation of justice.
Not all legal systems operate in an adversarial framework. For example, several European countries use an inquisitorial system for their legal system, in which an official body collects evidence for and against the accused individual in an effort to find the truth. My proposed single office structure for prosecutors and public defenders would operate as a sort of middle ground between the two systems. While both sides would still have representative advocates, the practice of scrutinizing evidence and the open file sharing system would put a greater emphasis on the pursuit of the truth in the process. Additionally, the shared funding model would ensure that each attorney would have the proper resources with which to advocate for their clients. This structure would not mimic the inquisitorial system in its entirety, and it would still exist within the framework of American constitutional protections for the accused. For example, the Fifth Amendment’s protection against self-incrimination and attorney-client privilege would prevent the prosecutor and the public defender from colluding and improperly deciding on a verdict.
A potential concern about the one-office structure is that the increased collegiality between attorneys acting as prosecutors and public defenders would result in a sort of “quid pro quo” system, in which the attorneys might trade a conviction in one case for dropped charges in another. Without adversarial pressure, there might be an inclination to negotiate across cases in ways that would be damaging to the rights of accused individuals and violate ethical advocacy standards. However, this would not be the only system in which legal “scorekeeping” might be tempting; the Supreme Court and appellate courts operate in collegial environments where they must compromise with those holding opposing viewpoints and adjudicate many cases with conflicting interests. Yet, these judicial bodies resist the inclination to trade cases both because of their understanding of their responsibilities and by holding their colleagues accountable when necessary. As Justice Kagan reminded Justice Kavanaugh, “Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases; no one’s past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right.” The one-office structure for prosecutors and public defenders would act with the same professional standards as judges and evaluate every case on an individual basis.
If my proposal were implemented, it would not be the first system to rotate attorneys into opposing positions in the American legal system. The Judge Advocate General’s Corps (JAG Corps) is the legal body for the United States military. Judge Advocates are attorneys who practice in a wide range of different legal disciplines, including criminal law. After two or three years of experience practicing in one area, judge advocates are rotated to a different discipline or department. In criminal law cases, such as court-martials or sexual assault cases, Judge Advocates can serve as the prosecutor or the defense counsel depending on their current position in the rotational system. This system is designed to “maximize each attorney’s personal and professional growth… foster versatility and engender a larger, more sophisticated perspective.” Judge Advocates are not able to choose which side to represent and are able to experience advocating for both sides, just as attorneys would in my proposed one-office system.
One of the critiques of JAG Corps is that its rotational system creates ethical conflicts. For example, a junior attorney can be transferred from the defense to the prosecution or vice versa in the middle of a case and can therefore influence both sides of that case. The knowledge that attorney has from working on the other side poses an ethical dilemma: “All that stands in the way of his divulging confidences is self-regulation, or the extent to which he sees the issue and makes a conscious choice not to talk about the case.” While my proposed one-office structure would also, in part, rely on the attorneys’ professional responsibilities not to share confidential information with opposing parties, it would not face this ethical dilemma to the same magnitude as JAG Corps does. Because JAG Corps’ rotational system does not occur in the same office, the rotating attorneys have to keep secret the existence of evidence itself and what that evidence could reveal. The single office for prosecutors and public defenders is designed to ensure that evidence cannot easily be hidden or kept secret from the opposing side. Therefore, the one-office system would avoid much of JAG Corps rotational system’s ethical dilemma. Additionally, my proposed one-office system would never move an attorney from one side of a case to the opposing side. As much as possible, attorneys would only be rotated when their cases are closed, and if they have a conflict of interest, they would be recused from that case.
Our criminal justice system is currently built on its adversarial nature. It has fundamentally relied on the idea that two opposing sides in conflict will reach the most just conclusion. However, the system is substantially unbalanced and does not deliver on the justice it purports to uphold. My proposed one-office structure would shift the legal system from a strictly adversarial system to a slightly more inquisitorial system. It would uphold the values of the criminal justice system within a structure that rotates attorneys, like JAG Corps does, and evaluates each case individually, like judicial panels do. Finally, it would create an environment in which finding the truth would have greater value than the today’s practice of efficient assembly line convictions.
