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II. Advocacy in Public Discourse
III. Advocacy and Dominant Courtroom

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Created: February 20, 2002
Latest Update: February 20, 2002

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I. Advocacy in the Courtroom

Entry by jeanne

Copyright: Jeanne Curran and Susan R. Takata and Individaul Authors, February 2002.
"Fair use" encouraged.

This essay is one of a series of three, and describes the process of transferring the advocacy process from the courtroom setting, in which I learned it, to the forum for public discourse.

Advocacy in the courtroom reflects the American theory of justice, which assumes that if the two sides, and American law still thinks in dualistic terms . . . If the each side is represented by an advocate who does his/her best to focus on the side he/she represents, then the judge or trier of fact will be able to determine truth from this dualistic presentation and enter a fair judgment.

This ability of the trier of fact to balance the two arguments, pro and con, gave us the scales of justice. We recognize that no one knows "the truth," but we put our faith in the ability of the trier of fact to discern "legal truth" from the advocates' arguments.

In the courtroom the dualistic pattern seems to fit, because justice has largely been represented as pro and con, good and bad, right and wrong. Such a dualistic pattern fits the custom of our ways in judging disputes. In our criminal courts it is balanced by ethical exhortations: the defense shall argue fervently for the accused. He/she shall do everything that falls legally in his/her power to persuade the trier of fact of the innocence of accused. But the defense counsel may not suborn perjury. That is, as an officer of the court (and all attorneys are officers of the court) he/she may not lie to the court or permit anyone else (including the accused) to lie to the court if he/she is aware that the testimony or sworn affidavit is false. But the defense counsel may not do anything to harm his/her own client. That occasionally causes difficulty when a defense attorney has reason to believe that a client plans to lie to the court. To permit such testimony is to suborn perjury.

Attorneys for the People, prosecutors, have a different ethical exhortation. They are charged with discovering "the truth." Not the legal truth, which is the factual pattern the trier of fact determines to be true after hearing all the argument and testimony. But the actual truth. The Defense Counsel is not charged with finding the actual truth, but with making the best possible defense of the accused. The difference in these ethical charges reflects the philosophy of our legal system, that the accused is innocent until proven guilty, and that it is better that a few guilty people go free than that an innocent person be judged guilty.

The ethical canons are the foundation of our legal system. When juries are chosen, there is an underlying assumption that all jurors would uphold the laws and the Constitution of the United States. That means that each juror also subscribes to the freedoms and rights guaranteed by our Constitution and laws. That includes "innocent until proven guilty." And that "proven guilty" means proven in a court of law, not in public opinion. In a recent jury selection, a chagrined and mildly irate Judge dismissed six jurors who stated that the accused is more likely than not guilty because he was in court and the police charged him. These jurors had heard none of the testimony or arguments in the case. They presumed that "where there is smoke, there's fire." In other words, if you are in court as an accused you are "probably guilty." The Judge dismissed the jurors because they did not uphold the beliefs on which our laws and Constitution are based.

There is no remedy for refusing to uphold the beliefs on which our concept of freedom is based. The Judge could not send the prospective jurors to "juror school" for a review of U.S. Constitutional Rights. He could not hold them "in contempt" of our laws and Constitution. He simply sent them home, not to serve on the jury. He relied on our educational system to somehow reach them and teach them the beliefs on which freedom stands.