What's Wrong with the Adversary System: Paranoia, Hatred, and Suspicion
Strick, Anne
What's Wrong With The Adversary System: Paranoia, Hatred, and Suspicion by Anne Strick "Adversary system" is likely to be one of the first phrases heard by anyone who, willing or nillirig,...
...Yet there is little evidence that either its sources or its claims, its underlying assumptions or its implications, have been much examined...
...And the U.S...
...The witness has been caught in a lie, the lawyer cries, and his entire testimony must be discounted—whatever it may be...
...A "win" system must have a winner and a loser...
...If a psychiatrist is unwilling to offer such testimony, he is not hired...
...attorney for the District of Columbia, David G. Bress, said: "Even though defense attorney may know that a government witness is telling the truth, it is nevertheless entirely proper to cross-examine for the purpose of showing the limited weight to be given to the testimony of that witness...
...Nearly all members of our legal profession hold this adversary method to be desirable—in truth admirable, a very jewel among the world's judicial systems...
...She continues to weep...
...This article, appearing here by arrangement with Juris Doctor, is from her book, Injustice For All, to be published by G. P. Putnam's and Sons...
...When, in your attorney's office, you either 'express dismay at the brutality of the initial blow struck by the other side or express shock at the brutality of the blow your side is about to strike, your attorney will say, "Well, you see, we have an adversary system of law...
...Of course—the case is hypothetical...
...He has "one purpose, and one purpose only, in using the suitor's testimony to impeach the girl: to destroy her credibility before the jury and thus make it appear, contrary to fact, that she is lying about the rape...
...Thurman Arnold has written: ". .. the ordinary teacher of law will insist 1) that combat makes for clarity, 2) that heated arguments bring out the truth, and 3) that anyone who doesn't believe this is a loose thinker...
...Look her over goodnaturedly and as if you are in doubt whether it would be worthwhile to question her—and sit down...
...Ehrlich suggests, "Whenever the witness is apparently honest and has tried to give his best recollection of an occurrence, any cross-examination undertaken should be pursued only to the point of obtaining some favorable limitation of...
...Wilson was summoned by the State as a prosecution witness against the accused...
...But he may believe that talking to others about testimony is forbidden or invalidates the testimony...
...There were C., papers presented, and a panel discussion followed...
...Not one of them is devoted to a consideration of the adversary system...
...The lawyer knows that his client is guilty and the girl truthful...
...Was it not a fact that she had voluntarily entered his car...
...Had she not, at three separate opportunities, avoided the pOSsiblity of rescue by police cars cruising by...
...For it is from the customs of judicial ordeal and magic that our legal style in large part derives...
...But, as we know it, crossexamination merely puts the weight and sufficiency of the prosecution's Case to the test...
...No," she said...
...44 . by annihilating the key witness...
...But the answers are not...
...In three more paragraphs they are done with it...
...So, too, is our conception of many of the basic principles underlying each...
...There is no room in the law for the advocacy—or the exploration—of the shade of gray...
...His "No one" therefore permits the crossexaminer to pounce...
...He lifts his hands and bows to the judge and jury, silently miming, "What can you do with such a liar...
...I listened to one lawyer chide a client...
...There is no designation in legal language for an impartial witness at the trial court level...
...Within a polar frame, failure to deny a charge in toto constitutes admission of total culp ability...
...This behavior another lawyer has termed "trial by ambush and trial by surprise...
...Court Reporter: "And when you went to San Diego" (twice now, judge and jury have heard that the witness "went to San Diego"), "with whom did you go...
...The point, Goldstein instructs, is that "the more times...
...And yet, according to the authors in their opening chapter, "A distinctive element of the procedure for resolving legal controversies is the adversary system...
...the fighting theory of justice, and it underlies both the conceptual framework and the procedure of our law...
...A grin, eyebrow lift, or "listen-to-that" shrug toward Bench or jury box may invite emotional conspiracy...
...Uh...
...The case is hypothetical...
...The latter, hired by the prosecution, are paid to offer psychiatric prevarications tending to incriminate the accused...
...Attorney (openly, hugely incredulous): "You didn't go to San Diego...
...In other words, information that is not ammunition must be shunned as the vessel shuns the fatal reef...
...finally retrieves it and meaningfully waves a sheaf of papers which suggest reams of incriminating material—but which are actually blank): "You're quite sure of that, are you...
...once said, 'A lawyer should never ask a witness on crossexamination a question unless in the first place he knew what the answer would be, or in the second place he didn't care.' Certainly no lawyer should ask a critical question unless he is reasonably sure of the answer...
...The witness stand has been called by both Roscoe Pound and John Henry Wigmore "the slaughterhouse of reputations...
...He fixes on the conclusion which will best serve his client's interests, and then he sets out to persuade others to agree...
...Rise suddenly, as if you intended to cross-examine...
...What's Wrong With The Adversary System: Paranoia, Hatred, and Suspicion by Anne Strick "Adversary system" is likely to be one of the first phrases heard by anyone who, willing or nillirig, tangles with our courts...
...However, there is a rejected suitor, "Jones," willing to testify truthfully that he frequently had intercourse with the girl and that she "behaved in a scandalous -way towards strange men...
...More, I believe, it is an anachronism, a relic of a primitive way of seeing and thinking about the world...
...Attorney (smiles, reaches for his briefcase...
...The UCLA law library holds over 248,646 volumes...
...The witness will turn a determined face toward you, preparatory to demolishing you with her first answer...
...In other words, if you are cross-examining a clear-headed, honest witness, never give him a chance to repeat his story, but pull the attention of the jury away from it...
...Not one whit," he answered, "unless ours is a system which makes the search for truth preeminent...
...You mean you don't know...
...there are two types of psychiatrists: excusers and incriminators...
...In The Art of the Trial, Norbert Savay puts it plainly: "A student of the art of advocacy and of the legal contest can profit immensely by a deep and protracted study of war strategy...
...Civil Procedure, Cases and Materials, by Cound, Friedenthal, and Miller, contains two pages in which "adversary system" is touched upon, in a book of 1,048 pages...
...Should he proceed...
...In criminal law, the rationale that justifies this savaging is that, since the defendant must be presumed innocent until proven guilty, his attorney is entitled to "put the government to its proof ' by (among other things) making the prosecution witness appear to be lying...
...Her health has deteriorated: she has developed high blood pressure and a heart condition...
...Not one is devoted to the adversary system...
...This is perfectly acceptable even though the truth may be dimmed in the doing...
...Witness (hypnotized by the menacing papers and now certain that he must, during some amnesiac period or astral life, at least have passed through San Diego—but still unable to recall it): "Urn...
...The win and loss must be absolute...
...Two do: Criminal Law and Its Processes, by Kadish and Paulsen, discusses "adversary system" in one-and-a-half pages out of 1,415...
...It is also the unique pride of the legal profession...
...No," she said...
...Often, he adds, "the best method to deal with an adverse witness is to decline cross-examining him at all, which, if done with a rather supercilious air, will frequently impress the jury with the idea that his testimony is either totally untrustworthy, or else has little or no bearing upon the case...
...It remains inconceivable that truth could ever lie in between...
...Witness (whose own attorney has warned him never to say "never" in the witness box, but who in fact has never been to San Diego): ". Uh . Yes...
...Cornelius writes, "Counsel may use silence effectively in cross-examination by rising slowly as if to question the witness, and then with a tolerant smile toward him and an attitude that seems...
...This case is not (identifying information has been altered): In 1975, a woman in her forties, "Mrs...
...Wilson was "hungry for male companionship"— and now and then purchased it...
...The decimation of witnesses remains a favorite modern trial tactic...
...his direct testimony...
...Even the expert witness is called not for disinterested enlightenment wherever it may point, but by a side, for that side: he is painstakingly interviewed in advance and chosen to assure that testimony given will support only the calling side (and/or serve as ammunition against the opposition...
...Though a number of jurisdictions are now limiting the extent to which the rape victim's sexual history may be pursued, a defense attack upon the victim is still too common in rape, and in other crimes, almost standard...
...Attorney (triumphantly slams papers down and barks in a fierce tone of utter contempt): "That will be all...
...The fourth participant, concurring, stated that "the function of an advocate, and particularly the defense advocate in the adversary system, is to use all the legitimate tools available to test the truth of the prosecution's case [and] the 'testimony of bad repute of the complaining witness, being recent and not remote in point of time, is relevant to her credibility...
...Under this theory, for example, the defense attorney is privileged to withhold evidence, while his client (guilty or innocent) may not be forced to take the stand...
...Any action requires two sides: it is polar, intransigent...
...Wilson is not...
...No," she said...
...Two years later, the rapist (who eventually pled guilty and was sentenced to 12 months) is one year free...
...No," she said...
...What then about cross-examination's search for "fact," for those "qualifying circumstances of the subject of testimony...
...Ah, you're not sure...
...The judgeT throw us right out...
...falls upon the hostile army...
...For example: The University of Southern California law library holds over 125,000 volumes (as of March 1976...
...Wilson had solicited the defendant's attentions...
...This element is indeed central to the whole subject, and unless it is understood it becomes well nigh impossible to explain, much less to justify, most of our procedural law...
...The trap, of course, is that the witness has necessarily talked at least with the attorney who called him...
...For example, quoting Science of War, Savay elucidates, ". . The trained strategist bends all the powers of his intellect and the resources of his knowledge to deceive, to surprise, to overwhelm...
...Ask the legal theoreticians: Should the defense attorney use these facts to impeach the girl and, if necessary, call the rejected "Jones" as witness...
...To offer in court any approximation of the statement, "Well, the fault wasn't entirely hers," can be fatal...
...Amicus curiae ("friend of the court") appears only at the appellate level—where 99 per cent of cases never arrive...
...Nine of these texts make no mention of "adversary system" in either chapter heading or index...
...friendly" or "hostile...
...Court of Appeals, and now chief justice of the Supreme Court of the United States of America...
...In fact, expert witnesses, deftly questioned to bring out specific material and nothing more, are in Roscoe Pound's words "partisans, pure and simple...
...The basic axiom, echoed and re-echoed in the manuals, is "Never ask a question unless you know just what the answer will be" or what "will aid your cause...
...The Los Angeles County law library, with its eight branches the largest public law library in the country, holds over a half-million volumes...
...Yes, say the seekers of truth...
...in September 1966...
...A basic query recommended by most of the manuals, and aimed at discrediting those who testify adversely, is "To whom have you talked about this case...
...Warren Burger, then judge of the U.S...
...Wilson who had actually seduced the man she now called her attacker, and who was so much younger than she—a boy, really...
...In dumb show he searches through it, removes a file folder...
...The approach rimy be verbal, tonal, or silent altogether...
...His testimony is not false, although, given my knowledge of the facts, I am aware that there was no consent and Jones' testimony creates the impression that there was consent...
...Was it not, in fact, Mrs...
...weakly...
...But Mrs...
...He forced her at knifepoint into his car, poured rum down her throat until she was sick, and raped her several times...
...Wilson," a widow employed in a responsible position as an educational consultant by the school system of one of our Western states, was accosted by a man in an unguarded municipal parking structure...
...Hence there is no witness who speaks for neither side but simply to widen the contextual perspective...
...Stated Supreme Court Justice Byron White, . as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth...
...a military commander...
...If the legal congame is successful, the seeker of fact is misled, the guilty defendant is freed, while the victim suffers an additional, and' this time public, outrage at the hands of a procedural system to which she looked for help...
...Your testimony is, then, you don't remember...
...It can be done by a good actor in such a manner as to be equivalent to saying to the jury, 'What's the use...
...The rapist was caught in flagrante delicto, and the victim driven to a hospital, where she remained for one week...
...In other words: Jones' testimony "is not false," says Bowman, and should therefore be used, although all that it implies and is intended to imply is false...
...The deputy director of the Legal Aid Society for the District of Columbia, Addison M. Bowman, stated, "I would tender the witness Jones...
...double-edged sword —cross-examination.'' "Cross-examination is the most potent weapon known...
...Each side must present not all it knows, but only its own "best case...
...For example: A 22-year-old daughter of a local bank president who is engaged to a promising young minister in town has allegedly been raped...
...And Mr...
...Her financial situation has grown precarious, her personal prospects grim...
...Thus, an Appeals Court, which rules only upon matters of law and accepts the lower court's version of fact, has no clue to any emotional aura that may have influenced the lower court...
...Replies an attorney, ". . advocacy requires a lawyer to start with something to be proved...
...The scene in her car and the scene in the courtroom are fused in her nightmares...
...not one book is devoted to the adversary system of law, its genesis, evolution, rationale, and criticism...
...What, then, of the claim that cross-examination, by exposing the witness' demeanor for observation, permits the court to determine the weight and value of his testimony...
...No third person may enter the legal lists without declaring himself, or being declared by the Court, "for" one side or the other...
...Witness (hesitating just a fraction too long): "No...
...Cross-examine him for lack of memory, for distances, for marks of identity, for religion, for politics, for anything but his story...
...Adversary process is by definition either-or...
...Cross-examination also has specifically tactical goals...
...Ever...
...Or else he assumes that the question reasonably excludes the calling attorney...
...motives, his inclinations and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory and description are all fully investigated and ascertained, and submitted to the consideration of the jury, before whom he has testified, and who have thus had an opportunity of observing his demeanor and of determining the just weight and value of his testimony...
...More recently, psychiatrist Thomas Szasz commented concerning the Hearst case, "In criminal trials...
...Small wonder that Judge Learned Hand was moved to comment that 46 . . as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death...
...and laying a foundation for an objection to "incompetent" testimony...
...And the result...
...discrediting the witness...
...No," she said...
...Was she not, actually, a sometime prostitute...
...In that event anything which obstructs that search is impermissible...
...Witness (impaled now on the eyes of the entire courtroom—jury, judge, lawyers, reporter, clerk, bailiffs, witnesses, and a gaggle of off-the-street gapers): "I [swallowing] —didn't go to San Diego...
...He adds, "In the original meaning of the word, 'strategy' is the art of planning a military campaign with a view of achieving a termination of war in one's favor...
...Oh, you think it was May or June...
...She is only a woman.' " Silent cross-examination, which offers the witness no opportunity to refute the examiner's clear but unspoken slur, is (for the lawyer) the safest way of doing battle...
...The man accused of the crime admits to his attorney that the charge is true...
...and could not stop...
...Indeed the litigant, witness, or attorney who in the course of a trial attempts to do so is penalized...
...He will waste a lot of time if he goes with an open mind...
...to demolish the effectiveness of the key witness...
...Cross-examination—examination at the hands of the opposing attorney—is the concentrated essence of adversary behavior...
...Well, which was it, then...
...but it is only with the matter of our cross-examination that we can hope to destroy him...
...Wellman reiterates, "David Graham...
...must attack and counterattack, "discover" and avoid discovery...
...Then he should be dismissed with an air suggesting that his entire testimony lacks importance...
...laying a foundation for impeachment of the witness...
...For instance, of an event that occurred some 20 years before: "In what month was that...
...A law professor, explaining why the Patricia Hearst trial failed to shed expected light upon human motivation and • behavior, said: "One side gets up and yells white and the other gets up and yells black while we're talking about shades of gray...
...I believe that our adversary legal system is one of the major taken-forgranted, practically-never-questioned institutions of our culture...
...The explanation of this attitude lies in the realm of social anthropology...
...These include obtaining helpful and discrediting harmful testimony...
...Had she not deliberately failed to•call the attention of the parking structure's exit-guard to her plight...
...the lawyer can make the witness say 'I don't remember,' the better will be the psychological effect...
...No," she said, and wept...
...Copyright ©1977 by Anne Strick...
...According to Professor (now Dean) Monroe Freedman, this last participant was "even more explicit in the question period following the panel discussion: he considers it ethical to cast doubt on the girl's credibility by destroying her reputation, even though the lawyer knows she is telling the truth...
...For, explains Ehrlich in The Lost Art of CrossExamination, "It is impossible in a court of law to place confidence in the evidence of a witness who can be reduced in cross-examination to saying 'I do not remember.' " .The examiner's manner is often more important than the substance of his question...
...Neither the glares, vocal tones, incriminating-paper trick, nor eyebrows will appear in the transcript...
...Of these...
...To destroy the witness it is necessary to...
...When she recovered, Mrs...
...Thus the defense attorney queried as follows: Was it not a fact that Mrs...
...Another device is to address a witness as "Sir" or "Madame" in a heavy sneer that, if verbalized outside , the courtroom's permissive ground, would approach slander...
...Called a necessary art aimed at trapping the unwilling or dishonest witness, cross-examination theoretically reveals material hidden or undeveloped under prior direct examination by the witness' own attorney...
...The defense attorneys chose an entirely permissible battle strategy: they decided to attack...
...This is sometimes called Anne Strick is a California writer...
...Witness (definitely): "I didn't go to San Diego...
...The scenario may go like this: Attorney (leading question): "And when you went to San Diego, with whom did you go...
...It is entirely proper to cross-examine, says Bress, for the purpose of showing the "limited weight" to be given the victim's testimony—even though it is the truth to which limited weight will be given...
...Attorney (eyes ablaze): "Do you mean to tell this Court that you have never been to San Diego...
...The dismissing of a witness with "That will be all...
...Justice White, speaking from the height of the Supreme Court Bench, noted that if defense counsel can "confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course...
...Finally a scream attracted the attention of a passerby, who called the police...
...That material may be either "qualifying circumstances of the subject of testimony" or "facts which diminish and impeach the personal trustworthiness of the witness...
...This is the signal for you to hesitate a moment...
...and makes an effort to annihilate it...
...No," she said...
...What is this "adversary system...
...Our definition of legal strategy is identical with that of military strategy...
...The question was put to a symposium -Ok the Federal Bar Association in Washington, D.C...
...It is ethical, says Burger, to attempt to destroy both the girl's reputation and the truth of the case, because the testimony of her "bad repute" (a "legitimate tool") is recent and therefore "relevant to her credibility"— even though the impression it gives of her credibility is a lie...
...Judge: "Will the court reporter please read back that last question to the witness...
...Was it not true that, as a widow, Mrs...
...It is, said a professor of law, "ethical for defense counsel to crossexamine a prosecution witness to make him appear to be inaccurate or untruthful, even when the defense attorney knows that the witness is testifying accurately or truthfully...
...to say, 'Oh, what's the use, this witness is of no importance anyway,' take his seat with the statement 'I believe I do not care to crossexamine.' " Wellman, in The Art of Cross Examination, offers a variation: "If the witness happens to be a woman, and at the close of her testimonyin-chief it seems that she will be more than a match for the crossexaminers, it often works like a charm with the jury to practice upon her what may be styled the silent crossexamination...
...George Washington University professor of law James F. Starrs asked, rhetorically, whether his client's confession of guilt should "in any way affect the ardor" of defense counsel's cross-examination of an adverse witness who happens to be telling the truth...
...accidentally" drops it, thereby assuring it as a focus of attention...
...They must fight—generally the harder, the better...
...More often, the witness' demeanor is made another weapon against him...
...Had she not willingly gotten drunk with him, indeed given him a $10 bill .to purchase the liquor...
...in triumphant tone may pretend that damaging testimony was instead a coup...
...An authority on evidence elaborates: the witness...
...Christ, are you crazy...
...Meantime, that exposure of her most personal history may have irreparably damaged her relationship with her conservative family and fiance...
...Listen," I heard one judge shush a persistent attorney, "you keep on asking questions, you may get an answer you don't want...
...Ehrlich maintains that tangling up most witnesses by such means is fairly easy...
...Cornelius suggests a diversionary tactic: ". . If the witness is an honest one and tells a clear, straightforward story, do not cross-examine him upon the main story, he will only emphasize it...
...But if the lawyer has foregone that prudent technique, or placed upon the stand a witness who despite all has bested him, there is still one trick left: "Failing to make a point on cross-examination, and especially when the witness has scored against you, dismiss him with some remark that will provoke a laugh—at his expense, not yours...
...Such techniques are particularly useful in that they do not appear in any written transcript of proceedings...
...This technique is officially called "discrediting" or "impeachment...
...The attorney is obligated," said a law school dean, "to attack, if he can, the reliability or credibility of an opposing witness whom he knows to be truthful" (italics mine...
...Who is this last participant...
...Another basic setup question attempts to capitalize upon the myth of perfect recall...
...It is always much better to point out the improbabilities and contradictions in a witness' testimony, in the argument to the jury, than to let him explain them away upon the stand...
...There are dozens (at least) of books written by attorneys for each other, instructing how to win a battle...
...Out of that battle, adversary rationale maintains that the truth will be revealed...
...it is best to attack indirectly...
...No," she said...
...Attorney (pantomimes eyebrowlifting surprise, then, rubbing an ear, the possibility of a hearing impediment): "Excuse me, Your Honor" (adroitly catching the judge's wandering attention and at the same time subtly engaging him on the attorney's side), "but I don't think I caught the last answer...
...Against" is the only legal posture possible: "Smith versus Jones," "The People versus John Doe...
...At UCLA, eleven texts are required or suggested for first-year law students...
...Indeed, our commitmerit to the adversary approach demands that we refuse much of the best knowledge and behavior of our twentieth century, and go backward— centuries back, to ordeal and to magic...
...Judges and juries must believe one side or the other (no matter that they frequently believe neither), must decide for one and against the other...
...She lost her job and, under medical orders, cannot take another...
...It is a method of dispute settlement that requires all persons who go to law to settle differences to behave as enemies...
...In Trial Evidence, Reynolds advises, "Never ask for explanations unless you are perfectly sure they cannot be given...
...my emphasis) And Lake, in How to CrossExamine Witnesses Successfully, puts forth this maxim: "No matter how clear, how logical, how concise, or how honest a witness may be or make his testimony appear, there is always some way, if you are ingenious enough, to cast suspicion on it, to weaken its effect...
...The former, hired by the defense, are paid to offer psychiatric prevarications that tend to excuse the accused...
...must assail the opposition...
...In them, terms of weaponry, of injury, and of extermination appear with notable frequency: "By our manner toward a witness we may have in a measure disarmed him...
Vol. 8 • January 1977 • No. 11
