NCJ Number
56323
Date Published
1978
Length
228 pages
Annotation
THE ADVERSARY TRIAL SYSTEM IS VIEWED AS A RITUALIZED RESOLUTION OF PUBLIC ACCUSATIONS OF WRONGDOING. THE STANCE OF NEUTRALITY REQUIRED BY SOCIETY IS EXAMINED AND FOUND TO BE WEIGHTED TOWARD THE PROSECUTION.
Abstract
AFTER A DISCUSSION OF SOCIAL CONTROL SYSTEMS IN GENERAL, WITH EXAMPLES FROM VARIOUS CULTURES AROUND THE WORLD, THE AMERICAN ADVERSARY TRIAL IS EXAMINED IN DETAIL. IT IS POINTED OUT THAT THE IDEAL OF ADVERSARY JUSTICE PERMEATES THE ENTIRE SYSTEM BECAUSE EVEN THE PLEA BARGAIN IS AN ADVERSARY PROCESS. THE FACT THAT A TRIAL MUST BE CONDUCTED ALSO LEADS TO MANY CHARGES BEING DROPPED BECAUSE THE PROOF IS NOT SUFFICIENT TO STAND UP TO THE RIGORS OF THE COURTROOM. AMERICANS RESPECT THIS SYSTEM AND DISTRUST THE EUROPEAN INQUIRY SYSTEM; THE TERM 'INQUISITORIAL' HAS ACQUIRED A MALEVOLENT MEANING IN THE UNITED STATES. DESCRIPTIONS ARE GIVEN OF 20 TRIALS AND RESULTS OF CONVERSATIONS AND FIELD OBSERVATIONS ARE REPORTED. IT IS CONCLUDED THAT THE JURY IS ROUTINELY LIED TO IN THE AVERAGE TRIAL AND THAT THERE IS AN UNSPOKEN ETHIC THAT THE STATE WILL NOT PROSECUTE UNLESS THE DISTRICT ATTORNEY IS QUITE SURE OF THE CASE. THEREFORE, TWO LEVELS EXIST IN THE COURTROOM. ON THE FORMAL LEVEL DUE PROCESS IS MAINTAINED AND THE PRESUMPTION IS THAT THE DEFENDANT IS INNOCENT UNTIL PROVEN GUILTY. INFORMALLY, EVERYONE 'KNOWS' THE DEFENDANT IS GUILTY AND BAILIFFS AND OTHER COURT STAFF OFTEN HELP OUT THE PROSECUTING ATTORNEY INFORMALLY BY POINTING OUT HOLES IN THE DEFENSE STORY. THE ADVERSE EFFECTS OF THIS SYSTEM ARE LISTED. IT IS SUGGESTED THAT THE EUROPEAN INVESTIGATIVE APPROACH HAS MUCH TO RECOMMEND IT. REFERENCES ARE APPENDED. (GLR)