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NCJRS Abstract

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NCJ Number: 62579 Find in a Library
Title: CONFLICT BETWEEN SELF-INTEREST AND JUSTICE - A BOLD CRITIQUE OF THE ADVERSARY SYSTEM
Journal: JUDGES' JOURNAL  Volume:16  Issue:3  Dated:(SUMMER 1977)  Pages:8-11,42-43
Author(s): M E FRANKEL
Corporate Author: American Bar Association
United States of America
Date Published: 1977
Page Count: 6
Sponsoring Agency: American Bar Association
Format: Article
Language: English
Country: United States of America
Annotation: MAJOR FLAWS IN THE PRESENT ADVERSARY SYSTEM AS A MEANS OF DETERMINING THE TRUTH ARE DISCUSSED; ALTERNATIVES TO THE PRESENT SYSTEM AND REFORM MEASURES ARE EMPHASIZED.
Abstract: THE ADVERSARY SYSTEM IS PREMISED ON THE THEORY THAT THE INTERESTS OF JUSTICE WILL BE BEST SERVED IF EACH SIDE SEEKS ITS PRIVATE ADVANTAGE BY CONQUEST, STRIVING TO ESTABLISH ITS OWN VERSION OF THE FACTS AS WELL AS THE LAW. EACH SIDE FRAMES THE ISSUES, INVESTIGATES THE EVIDENCE, AND SELECTS WHAT IT CHOOSES TO PRESENT. HOWEVER, THE ADVERSARY SYSTEM IS SIMPLER AND LOVELIER THAN THE FACTS OF LIFE. A DEEPLY INHERENT FLAW IS THE MISMATCHING OF THE CONTESTANTS. THE UNEQUAL RESOURCES OF CLIENTS AND INEQUALITIES IN THE SKILLS OF THEIR LAWYERS BLIGHT THE VISION OF A FAIRLY BALANCED CONTEST. IN ADDITION, JEROME FRANK WROTE COGENTLY ABOUT THE UNCERTAINTY AS TO HOW FACTS WILL BE 'FOUND' AFTER THE CONTESTANTS HAVE STRUGGLED TO ADVANCE THE DESIRED VERSION AND BLOCK OR DESTROY THE OPPOSITE VERSION. MOST CRIMINAL CASES INVOLVE BARGAINING, PLEADING, AND OTHER MEASURES TO AVOID TRIALS. OUR TRIAL PROCEDURES ARE CUMBERSOME, THREATENING, AND CHANCY. CONSEQUENTLY, WHILE THE ADVERSARY TRIAL IS EMPLOYED IN A FEW CASES, MOST ARE CONCLUDED BY THE ADVERSARIES THEMSELVES IN PUBLICLY UNDISCLOSED NEGOTIATIONS. UNFORTUNATELY, THE INTERESTS OF THE INDIVIDUALIST LAWYER ARE NOT ALWAYS IN HARMONY WITH THE CLIENT'S; CRIMINAL DEFENDANTS' FATES ARE FREQUENTLY NEGLECTED OR DEALT AWAY IN DUBIOUS BARGAINS. IT IS SUGGESTED THAT THE PUBLIC AGENCIES CHARGED WITH THE IMPARTIAL ADMINISTRATION OF JUSTICE TAKE A STRONGER HAND THAN THEY HAVE THUS FAR. IMPROVEMENT OF COURT MANAGEMENT MUST EMPHASIZE THE GOAL OF IMPROVING THE QUALITY OF JUSTICE RENDERED, NOT MERELY THE EFFICIENCY OF THE COURTS. IN ADDITION, THE CONCEPT OF THE NEIGHBORHOOD COURTS SHOULD BE EXPANDED. FINALLY, THE IMPLEMENTATION OF ONE LEGAL TEAM DIRECTED BY A MAGISTRATE FOR SETTLING LEGAL DISPUTES SHOULD BE CONSIDERED IN THE INTERESTS OF JUSTICE AND ECONOMY. FOOTNOTE REFERENCES ARE INCLUDED IN THE ARTICLE. (LWM)
Index Term(s): Administrative adjudication; Court reform; Court reorganization; Court system; Neighborhood justice centers; Trials
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=62579

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