What is your opinion? Which statement do you share?

THE SEARCH FOR JUSTICE

1. You will read the articles about duties and rules of the court and its participants. Look at the two statements below, which one do you agree with more? Tell your partner.

“ The purpose of a trial is to find out the truth.”

“The observation that a trial is a search for truth might sound axiomatic to a non-lawyer but is in fact the subject of intense ideological warfare.”

I. COURTS AND RULES

Should you ask the average intelligent lawyer to explain briefly the function of our courts, he would probably tell you something like this: Our legal system is based on legal rules. Those rules state what may and may not be lawfully done. For instance; the legal rules say that murder is a legal wrong; that, if a man makes a contract, he must live up to it; that, by a certain kind of writing, land is awfully transferred. The legal rules embody or reflect moral norms, social standards, social policies, community ideals or values. Those rules – some of them made by legislatures and some by the courts – are necessarily general in their scope. The major task of the courts is the specific application, in particular law suits, of these general rules to the particular facts of those suits. A court’s task thus divides into two parts: First, it finds the facts of a case – whether one man killed another, or drove eighty miles an hour, or paid his rent, or signed a certain paper. Second, it determines what legal rule covers those facts. The court’s decision then results.

These are two kinds of courts, the lawyer would continue. One kind, called trial courts (or “lower” or “inferior” courts), performs both parts of the judicial task: they both find the facts and apply the rules. The other kind, called upper courts, appeal courts, usually does little about the facts of cases. These courts devote most of their time to deciding, on appeals, whether or not the lower courts, in particular cases, made mistakes about the rules.

II. FIGHTS AND RIGHTS

If you visit a trial court during its working hours, what do you see going on? A law-suit. A law-suit is a kind of fight or combat.

Why? Anthropology seems to furnish the answer. In every society, quarrels are bound to arise. In some societies, the customs, the mores, the folkways, are moderately well-stabilized, and the social pressures – working through fear, pride, ridicule, a sense of decency, and the like- will not only reduce the sources of friction, but will compel men to settle, by amicable, private adjustment between the disputants, most of the quarrels that do occur.

In some so called “primitive” societies, when a man felt, or said, that he was deeply wronged by another and wanted vengeance, he did not “go to law”, he struck at the other man. He fought, we would say sophisticatedly, for his “legal rights”.

In some social groups, the peacelessness of such a general fracas became unbearable, and the blood feud, or vendetta, appeared as a substitute. The fighting was now restricted to limited sub-groups, to the clans of men, concerned in the original quarrel.

But the blood feud was bad enough. Wiser societies invented devices designed to prevent mass fighting; it came to be the custom that the claimant must not act by force in asserting his rights, without first obtaining the approval of some designed person who represented society, and that the claimant must fight according to set rules. “Self-help”, “self-redress”, was thus socially regulated. The savage and disruptive blood feud gave way in some societies to the “composition”, a schedule of tariffs of payments for wrongs. At first these compositions were voluntary. Later they became compulsory: The wrong doer must pay a fine and the wronged man must accept it. He who did not agree to submit to this social arbitration, and to abide by its decision, was in some societies, an “outlaw”, guilty of “peacelessness”.

One way or another, modern organized societies have developed the notion that most quarrels must not be allowed to become private pitched battles, that disputes must be settled without privately-inflicted violence. The modern state asserts a virtually complete monopoly of the right to use physical force when controversies between private persons occur.

Thus considered, what is the primary function of a court in our society today? Its primary function is to render specific decisions of specific disputes, in order to bring about their orderly settlement, so as to prevent brawls that might cause social disruption. The court is thus a peace-making device. It stops subversive aggression, keeps the peace, by deciding controversies. It meets crises of maladjustment by peaceable adjustments of conflicts. Just as, in our democracy, we have substituted political elections, peaceful revolutions, for revolutions by force, so we have substituted a sort of judicial or court-room duel for private war.

III. TRIALS

“A big murder trial”, Damon Runyon wrote, “possesses some of the elements of a sporting event. I find the same popular interesting a murder trial that I find … on the eve of big football fame, or a pugilistic encounter, or a baseball series. There is the same conversational speculation on the probable result, only more of it… The trial is a sort of game, the players on one side the attorneys for the defense, and on the other side the prize… And the players must be men well-schooled in their play. They must be crafty men...The game of murder trial is played according to very strict rules, with stern umpires, called judges, to prevent any deviations from these rules…” The players “are supposed to be engaged in a sort of common cause, which is to determine the guilt of the defendant. A player… for the State represents the people. His function, as I understand it ”, Runyon continued, “is to endeavor to convict any person who has transgressed the law… It is inconceivable that he would wish to convict an innocent person. But it has been my observation that the player or attorney for the State is quick to take any advantage of the rules… that puts his side in front and equally quick to forestall any moves by the other side.”

These, and other like techniques, you will find unashamedly described in the many manuals on trial tactics written by and for eminently reputable trial lawyers. The purpose of the tactics – often effective- is to prevent the trial judge or jury from correctly evaluating the trustworthiness of witnesses and to shut out evidence the trial court ought to receive in order to approximate the truth.

In short, the lawyer aims at victory, at winning at the fight, not at aiding the court to discover the facts. He does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client’s interests.

1. Workers in the legal system.