Can a bishop as a lawyer represent a sexual harassment offender?

[ztodd]

And neither would the lawyer.

That's really the very big misconception here that I have stated in a previous post and probably just went whoosh over people's heads.

A lawyer defending a guilty person is not defending/justifying a wrong-doing. He is defending the JUSTICE SYSTEM.

I guess I might be looking at the lawyer's job the wrong way. I tend to see them as being "on the side" of the person they are defending. They usually have to make it look that way in order to give the person a chance at justice. I don't see too many lawyers that remain impartial in the court room- but then, most court cases I've seen were fictional. :) I hope I'm wrong.

Now, let me ask you. How would your Justice System work (your rules, you get to form whatever kind of justice system you want)? Let's say... the case is - the gangster murdered his girlfriend in broad daylight with 50,000 witnesses and a youtube video to boot, smoking gun in hand complete with fingerprints and submitted into evidence. How do you want to carry out that justice system?

(Just so you know I'm not just pulling ideas off my behind... I worked for my uncle who is a big shot lawyer-turned Congressman. He is one of the most upstanding person I know, second only to my dad. I've had very intense conversations with him about how he can prosecute a rapist in the morning and then defend another rapist in the afternoon - yeah, he actually did that! - and no, he worked as a private lawyer, not a public defender or whatever. And in the Philippines, the lawyer is of much bigger import than American lawyers - there's no jury. Just the 2 lawyers and a judge).

I think it would work something like this -

...

In the case of defense lawyers, yes, we do need to provide a defense for everyone who wants one, but we don't have to make people go against their principles to do it. There will pretty much always be someone else willing to take the case.

And if they can't find someone to represent them, they'll have to represent themselves.

[Just_A_Guy]

I guess I might be looking at the lawyer's job the wrong way. I tend to see them as being "on the side" of the person they are defending. They usually have to make it look that way in order to give the person a chance at justice. I don't see too many lawyers that remain impartial in the court room- but then, most court cases I've seen were fictional. :) I hope I'm wrong.

Lawyers are all technically officers of the court--and so we all have certain duties of candor and honesty with the judge and with each other--but I'm not really doing anyone any favors if I, as defense attorney, sit there and make the prosecutor's case for him. Because our system is based on the "adversarial process"--the idea that as the prosecutor and I slug it out, each doing our darnedest to present our case, the truth will somehow emerge from that confrontation and will be recognized by jury and/or judge.

So, by being "on the side" of one party, the lawyer is defending the justice system.

[At least, that's the logic some of us use to justify what we do.]

[Seminarysnoozer]

Lawyers are all technically officers of the court--and so we all have certain duties of candor and honesty with the judge and with each other--but I'm not really doing anyone any favors if I, as defense attorney, sit there and make the prosecutor's case for him. Because our system is based on the "adversarial process"--the idea that as the prosecutor and I slug it out, each doing our darnedest to present our case, the truth will somehow emerge from that confrontation and will be recognized by jury and/or judge.

So, by being "on the side" of one party, the lawyer is defending the justice system.

[At least, that's the logic some of us use to justify what we do.]

I think everyone understands the reasons behind having two sides presented but unfortunately that creates a situation that is not in line with being Christ-like. It creates a spirit of contention, of withholding information, to use words in such a way as to alter the truth and deceive. For those of us who do not work in the legal system it seems that the practice of withholding information is commonplace. I was asked to present testimony in a case where the lawyer told me what I should say and what I shouldn’t say. Part of what I “shouldn’t say” was part of the truth. What he wanted me to say was truth, so I wouldn’t be telling a lie, but he didn’t want me to mention part of the truth as to not call attention to certain facts … to me that is a lie and deceit. … So, I didn’t follow those instructions and I told everything I knew when the trial came around and the lawyer was upset with me. This lawyer was LDS, by the way. I see this as a common scenario in our legal system and wonder how someone of our faith deals with that contradiction. Does the “job” of defending someone really take precedence over the admonitions of God?

I think a better situation would be if there is no lawyer confidentiality. Maybe one laywer could present the case of the defendant and the other for the accuser in court and the parties have no idea who is presenting which side of the case until court time. But, before the court case is presented both lawyers have equal access to both sides of the story. Or maybe have only one law entity gather information from both sides before trial, the lawyers who present the cases then would have no “confidential” contact with either party. That would also eliminate “hiring the best lawyer money could buy”. And then they would truly be "officers of the court" as you say and not hired gunmen. That way, if there is a lie, it is on the heads of the parties involved and not the “workers” of the law.

3 Nephi 11:29 “For verily, verily I say unto you, he that hath the spirit of contention is not of me, but is of the devil, who is the father of contention, and he stirreth up the hearts of men to contend with anger, one with another.

Mark 11;25And when ye stand praying, forgive, if ye have ought against any: that your Father also which is in heaven may bforgive you your trespasses.

26But if ye do not aforgive, neither will your Father which is in heaven forgive your trespasses.

D&C 10:28 “Verily, verily, I say unto you, wo be unto him that lieth to deceive because he supposeth that another lieth to deceive, for such are not exempt from the justice of God.”

[Dravin]

I'm not sure why you're quoting forgiving people , unless you seem to think that lawyers all have 'ought' against each other by necessity of professionally dictated goals. In which case those who play sports better get a forgiving. Or say the heads of Coke's and Pepsi's advertising departments.

Edited May 30, 2011 by Dravin

[Seminarysnoozer]

I'm not sure why you're quoting forgiving people , unless you seem to think that lawyers all have 'ought' against each other by necessity of professionally dictated goals. In which case those who play sports better get a forgiving. Or say the heads of Coke's and Pepsi's advertising departments.

It takes two to argue. Obviously the forgiveness quote is directed towards the prosecution and not the defense but it is part of the same system as the above described “officers of the law” argument given above. Defending this system of law is to promote accusations, blame, convictions, and charges which are all antonyms of ‘forgive’.

I don’t follow your examples of sports and ad campaigns unless you are talking about arguing over a bad call or something. In that case, I would say the umpire or referee should ref the game without argument. But then, if we are comparing a system which has the potential to destroy peoples lives financially or being locked up in jail, I wouldn’t compare that to a game.

I never said “all” lawyers. I have heard many advertisements on television (In fact if I look right now for 10 minutes I bet I might hear one) that say in some form or another “get what you deserve”. Or “don’t settle with your insurance, make sure to call a lawyer first”. Tell me how “get what you deserve” attitude is in conjunction with forgiveness or spreading a message of peace. The only argument one would have for that is some kind of an ‘eye-for-an-eye’ reason.

[Dravin]

It takes two to argue.

And? Professionally necessitated conflicting goals is not the same as having ought with each other. Can they happen concurrently? Certainly, but that doesn't make them the same. In a very literal sense we're arguing right now, I don't see it as sinful. And unless you apologize to me (for having ought against me) I'm going to assume you don't think disagreeing is somehow automatically having ought with someone.

Defending this system of law is to promote accusations, blame, convictions, and charges which are all antonyms of ‘forgive’.

You system still promotes accusations, blame, convictions and charges, it's unavoidable unless from now on everyone confesses what they've done. Let's take a rape.

1. Someone rapes someone.

2. Victim makes report and accuses the perpetrator, and by doing so alleges blame to him for the commission of the crime.

3. Charges are brought by the governing body.

4. The truth of the matter is hashed out in court, in the matter you propose or in the more traditional manner.

5. Defendant is found guilty (aka blamed) and is convicted.

Honestly I fail to see a problem with such accusing, blaming, convicting, and charges. The only way you avoid it is by effectively not having a legal system for handling crimes.

And, this is ultimately my point, a PA pressing charges is not the same thing as the PA the person having 'ought' with the defendant (or even the defense attorney) beyond having professional cross purposes. Not any more so than the offensive line and defensive line have ought with each other by nature of their goals and duties. This can of course, as noted happen concurrently with having ought, but it's not the same thing.

Tell me how “get what you deserve” attitude is in conjunction with forgiveness or spreading a message of peace.

I was unaware such advertisements were part and parcel of having professionally dictated cross purposes between people. You quoted JAG who made no mention of advertising practices. Nor did you in the post I responded too, yet you (as I read it) called lawyers to repentance for having ought against each other. I assumed it was because of the cross-purpose nature of the legal profession that JAG was explaining (which your proposal doesn't eliminate, though it does change the rules of discovery).

As a practical matter, it's (the ad) offering to represent you on the worry that the insurance company won't fairly compensate you for your injuries. Not much different then a locksmith touting deadbolts based on the worry that someone will try to steal your stuff.

Edit: For the record I think there are condemnations and changes to the legal situation that could be made to make it more in harmony with various aspects of the gospel. At some point though you're going to have party A and party B in disagreement with each other and working at cross purposes to establish something and I don't think that requires repentance because one was 'at ought' with each other.

Edited May 31, 2011 by Dravin

[Seminarysnoozer]

And? Professionally necessitated conflicting goals is not the same as having ought with each other. Can they happen concurrently? Certainly, but that doesn't make them the same. In a very literal sense we're arguing right now, I don't see it as sinful. And unless you apologize to me (for having ought against me) I'm going to assume you don't think disagreeing is somehow automatically having ought with someone.

You system still promotes accusations, blame, convictions and charges, it's unavoidable unless from now on everyone confesses what they've done. Let's take a rape.

1. Someone rapes someone.

2. Victim makes report and accuses the perpetrator, and by doing so alleges blame to him for the commission of the crime.

3. Charges are brought by the governing body.

4. The truth of the matter is hashed out in court, in the matter you propose or in the more traditional manner.

5. Defendant is found guilty (aka blamed) and is convicted.

Honestly I fail to see a problem with such accusing, blaming, convicting, and charges. The only way you avoid it is by effectively not having a legal system for handling crimes.

And, this is ultimately my point, a PA pressing charges is not the same thing as the PA the person having 'ought' with the defendant (or even the defense attorney) beyond having professional cross purposes. Not any more so than the offensive line and defensive line have ought with each other by nature of their goals and duties. This can of course, as noted happen concurrently with having ought, but it's not the same thing.

I was unaware such advertisements were part and parcel of having professionally dictated cross purposes between people. You quoted JAG who made no mention of advertising practices. Nor did you in the post I responded too, yet you (as I read it) called lawyers to repentance for having ought against each other. I assumed it was because of the cross-purpose nature of the legal profession that JAG was explaining (which your proposal doesn't eliminate, though it does change the rules of discovery).

As a practical matter, it's (the ad) offering to represent you on the worry that the insurance company won't fairly compensate you for your injuries. Not much different then a locksmith touting deadbolts based on the worry that someone will try to steal your stuff.

Edit: For the record I think there are condemnations and changes to the legal situation that could be made to make it more in harmony with various aspects of the gospel. At some point though you're going to have party A and party B in disagreement with each other and working at cross purposes to establish something and I don't think that requires repentance because one was 'at ought' with each other.

I didn't call anyone to repentance, simply asked how it is possible to deal with what seems to be, from an outside point of view, an apparent conflict. Which is exactly what the OP asked.

I didn't say the lawyers had ought against each other but it seems that they are promoting the 'oughts' by their support of the 'oughts' between the two parties.

It is similar to the argument of selling liquor if you don't drink it yourself. One could say, we are never going to get rid of it. People want it, and say they need it, so why not sell it? I could support the need but not be a part of it, at least justify it in my mind because I am not the one drinking, just supporting it. Or, how could I operate a large restaurant chain if its not open on Sunday, or a large Hotel Chain that has to sell alcohol in it's restaurants etc. We all face similar contradictions, whatever the field. This string of posts is about the legal field specifically.

I don't know what your field is, sounds like you have experience with it. If so, do you know of lawyers that tell their client to not divulge information to the 'other side', the accuser or the defendant? That seems to me, again an outsider but personally familiar with what happens in a court room, to be a form of deceit and a lie when the truth is being asked for. That seems to be a common practice from my point of view. In other words, the 'other side' has to work for that knowledge, to ask the right questions or discover it themselves, luckily, they get paid by the hour. So that deceitful, withholding information, client confidentiality system, increases the cost of the legal system for one and it is to tell a lie to get gain. From an LDS point of view also promotes a secretive, manipulating the truth, withholding information necessity to some extent (not always, not all lawyers, not every case). My assumption, maybe a wrong assumption, is that that situation comes up often with court lawyers.

Just for point of discussion, not knowing anything about this case of the OP, say the defendant divulged to the defending Bishop lawyer that 'he thought he would like to get together with the accuser in this case and spend a passionate night with he or she'. Maybe not, but likely the lawyer would say something to the effect of "keep that to yourself". "Have you mentioned that to anyone else?" "Have you written those thoughts in a journal or by email?" "No, okay good, that is just between you and I then, I wouldn't mention that in your statement or in court, unless specifically asked that question."

Any, "good" lawyer would give that kind of advice. If that defending lawyer said to himself or herself, "wow, I can't defend this guy now, I am going to tell the prosecutor exactly what he told me and resign from being his defense attorney." And if he did just that, he would be out of a job pretty quick. To me, that is a moral, 'LDS' conflict that I can't see any way out of, other than losing one's job. If you say, 'well, that never happens' .... I don't know, I have seen it happen myself, several times.

Edited May 31, 2011 by Seminarysnoozer

[Just_A_Guy]

A lot of what you say makes sense, SS; especially if the only purpose of the criminal justice system is to punish criminals.

But our particular system was set up by people who were scared spitless of the ways that such a system might be used or abused for political or financial ends.

The system you posit in post 53 sounds a lot like the "inquisatorial system" still used in much of Europe. It can work very well. On the other hand, it can work horrifically--Robespierre loved this kind of system, because it concentrated complete power in the hands of judges who ultimately answered to him.

I would note that while a lawyer may ask you not to volunteer information (I think it can be kind of shady sometimes, depending on the circumstances; but most states won't prohibit it), any lawyer who asks you to withhold information even as an answer to a direct question by opposing counsel is witness-tampering and may be subject to disbarrment and criminal penalties.

Also - and this is going to sound horribly condescending, for which I apologize - but in a lot of trials, the legal issue isn't necessarily what the witness thinks it should be. For example, in a divorce trial I recently did, I instructed my client not to bring up his wife's infidelity during my examination of him because a) it wasn't germane to the issues we were trying to resolve, b) it was ugly, and c) it could lead the wife to make similar (and even more sordid, and similarly irrelevant--and, as far as I know, untrue) accusations about his own history. There's an extremely complicated code of rules about what kinds of evidence can and can't be used, on the grounds that some kinds of evidence might make us dislike the defendant but not really tell us much about what the guy really did (or didn't) do.

Your post 55 brings up some really interesting issues about the whole idea of criminal justice, and I'm not quite sure what kind of position you're asserting here. Would love to hear more, if you have the time.

Edited May 31, 2011 by Just_A_Guy

[Just_A_Guy]

Just for point of discussion, not knowing anything about this case of the OP, say the defendant divulged to the defending Bishop lawyer that 'he thought he would like to get together with the accuser in this case and spend a passionate night with he or she'. Maybe not, but likely the lawyer would say something to the effect of "keep that to yourself". "Have you mentioned that to anyone else?" "Have you written those thoughts in a journal or by email?" "No, okay good, that is just between you and I then, I wouldn't mention that in your statement or in court, unless specifically asked that question."

Any, "good" lawyer would give that kind of advice. If that defending lawyer said to himself or herself, "wow, I can't defend this guy now, I am going to tell the prosecutor exactly what he told me and resign from being his defense attorney." And if he did just that, he would be out of a job pretty quick. To me, that is a moral, 'LDS' conflict that I can't see any way out of, other than losing one's job. If you say, 'well, that never happens' .... I don't know, I have seen it happen myself, several times.

Of course I would tell my client not to repeat those sentiments in court, and of course I wouldn't disclose them.

The fact that I think Jane Doe is hot--the fact that I'd hook up with her, if given the chance--has zero bearing on whether I did or didn't make a particularly offensive statement to her (or, heaven forbid, rape her) on January 16, 2010. On the other hand: it might make a jury think that I'm a slimy pig, and thus convict me on that basis and regardless of anything I did or didn't say or do to her directly.

Incidentally, people have this idea that defendants usually confess all to their lawyers. My experience is that defendants will freely confess their sins to me if those sins are relatively trifling; but once you get up to about a Class A misdemeanor defendants will swear--even in confidence, to their attorneys--that they've done nothing wrong. People don't just lie to stay out of trouble; they lie because their self-image depends on perceiving the truth in a particular way. And they tend to be quite capable of performing the mental gymnastics necessary to allow those perceptions to continue unshattered. Most of my criminal defendant clients who are accused of truly grievous crimes, I think, have genuinely convinced themselves that they're innocent.

That doesn't give them a pass, obviously. But hopefully it will lead you to look a little more leniently on the lawyers who represent them and insist that the state live up to its constitutional burden of proving guilt.

Edited May 31, 2011 by Just_A_Guy

[Seminarysnoozer]

Also - and this is going to sound horribly condescending, for which I apologize - but in a lot of trials, the legal issue isn't necessarily what the witness thinks it should be. For example, in a divorce trial I recently did, I instructed my client not to bring up his wife's infidelity during my examination of him because a) it wasn't germane to the issues we were trying to resolve, b) it was ugly, and c) it could lead the wife to make similar (and even more sordid, and similarly irrelevant--and, as far as I know, untrue) accusations about his own history. There's an extremely complicated code of rules about what kinds of evidence can and can't be used, on the grounds that some kinds of evidence might make us dislike the defendant but not really tell us much about what the guy really did (or didn't) do.

Thanks for your responses. This is educational.

Please explain the last sentence here, "... might make us dislike the defendant ...". I am not sure about how, as a lawyer, whether the lawyer likes someone or not is supposed to be at play anyways. If both sides, meaning both sets of lawyers had access to both sides of the story, the judge could say, okay lawyer A take the defense and lawyer B take the prosecution for this case, after all the information has been gathered for the actual court appearance. And maybe even mid-case, switch the lawyers from one side to the other. Or even have both lawyers argue both sides of the case at the same time. What would be lost in such a system? Lawyer confidentiality ... is the typical answer. Then the question is what does "lawyer confidentiality" provide to any case? The only thing I could think of would be the ability to limit the outflow of information. Whether it is "germane to the case" could be determined by either lawyer if they are not partial to one side or another. In fact, what is germane to the case should be agreed upon by both sides, both legal counsel.

To me, again a limited perspective - I realize, the system promotes secrecy and manipulation of words. Why is it that one lawyer is any better than another? I think the common perspective is that they know how to present material in such a way that is more favorable for their client. Truth should be truth no matter how it is spoken. If it is possible to say truth in such a way as to change a persons perspective about the "truth" than it really isn't truth anymore, it is truth possibly but laden with fluff or deceptive presentation to change opinion. That is what deceive is, to give a false impression, or even an incomplete one.

If Lawyer A uses the same words as Lawyer B when they present the case and they both do not have any financial interest in who wins the case, then it is more likely to be spoken truthfully.

Words are powerful, we believe in words that save us and words that deceive us. In fact, that is part of our test, to discern, therefore, deceptive words are all around us.

[Seminarysnoozer]

Of course I would tell my client not to repeat those sentiments in court, and of course I wouldn't disclose them.

The fact that I think Jane Doe is hot--the fact that I'd hook up with her, if given the chance--has zero bearing on whether I did or didn't make a particularly offensive statement to her (or, heaven forbid, rape her) on January 16, 2010. On the other hand: it might make a jury think that I'm a slimy pig, and thus convict me on that basis and regardless of anything I did or didn't say or do to her directly.

Incidentally, people have this idea that defendants usually confess all to their lawyers. My experience is that defendants will freely confess their sins to me if those sins are relatively trifling; but once you get up to about a Class A misdemeanor defendants will swear--even in confidence, to their attorneys--that they've done nothing wrong. People don't just lie to stay out of trouble; they lie because their self-image depends on perceiving the truth in a particular way. And they tend to be quite capable of performing the mental gymnastics necessary to allow those perceptions to continue unshattered. Most of my criminal defendant clients who are accused of truly grievous crimes, I think, have genuinely convinced themselves that they're innocent.

That doesn't give them a pass, obviously. But hopefully it will lead you to look a little more leniently on the lawyers who represent them and insist that the state live up to its constitutional burden of proving guilt.

This is interesting. I would like to hear from you why there is a difference in public opinion (maybe I am wrong about this) about Lawyers versus Judges. If you think the public view lawyers the same as judges, I guess you can't respond to that.

My guess, about that difference, is that Lawyers are paid to tell one side of the story, whereas Judges hear both sides of the story and don't have a financial or vested interest in who wins the case. Maybe that perception is wrong. And of course, I am not talking about all lawyers but more talking about their hired responsibilities.

[Dravin]

Please explain the last sentence here, "... might make us dislike the defendant ...". I am not sure about how, as a lawyer, whether the lawyer likes someone or not is supposed to be at play anyways.

I suspect he's talking about the jury. Their job is to determine if on X date and location you did Y (or more accurately if there is a reasonable doubt you did not), not to determine if you think X is attractive. Now if you've been stalking her that's probably germain but it's quite a leap from "I think she's attractive and would like to sleep with her" to "I grabbed her tush at the water cooler" or what have you. I suspect JAG would instruct his client to not go blurting (if for some reason he got on the stand), "I think she's an ugly old hag I wouldn't touch in a million years" as well even if that's his real opinion of her because it's not pertinent to the actual facts of the case and possibly prejudices the jury against him.

This is interesting. I would like to hear from you why there is a difference in public opinion (maybe I am wrong about this) about Lawyers versus Judges. If you think the public view lawyers the same as judges, I guess you can't respond to that.

I can hire my own lawyer, I cannot hire my own judge, that is the primary difference I would imagine. The PA (who a defendant doesn't pick)*, and the Judge are quire clearly organs of the state so that tends to make people leery of them. If I hire my own defense lawyer he's quite clearly 'mine' not the state's. Public Defenders probably suffer from a similar perception (from some) that they aren't really interested in defending you, this gets reinforced by the stereotype that they are lazy and the perception that they are overburdened. The state (perceptually, but I imagine it's true in raw numbers) isn't putting as many resources into convicting you as they are trying to get you off. This'll be enhanced further if you've convinced yourself you are innocent (true or not), because then the state and it's officers are out to get you, an innocent person. Not an activity that would instill trust in them.

* Now if we're talking civil court you have chances that neither lawyer is hired by the state.

Of course JAG will have to answer for himself but ultimately lawyers are seen as less attached to the state as a class (all judges are organs of the state, only some lawyers are).

Edit: Looks like I may have gone on my own wild tangent on Lawyer versus Judges and perception here... feel free to ignore.

Edited June 1, 2011 by Dravin

[Just_A_Guy]

Thanks for your responses. This is educational.

Please explain the last sentence here, "... might make us dislike the defendant ...". I am not sure about how, as a lawyer, whether the lawyer likes someone or not is supposed to be at play anyways.

No, not the lawyer--the judge/jury. My post #59 brings out an example of this: if I, as a judge/juror, think the defendant is a slimy pig, I (subconsciously, in some cases) evolve from the mindset of "finder of fact" to the mindset of "righter of wrongs".

Theoretically, we're a nation of laws and not of people. We don't throw people in jail for being slimeballs; we throw them in jail because they violated a particular law at a particular place and time.

If both sides, meaning both sets of lawyers had access to both sides of the story, the judge could say, okay lawyer A take the defense and lawyer B take the prosecution for this case, after all the information has been gathered for the actual court appearance. And maybe even mid-case, switch the lawyers from one side to the other. Or even have both lawyers argue both sides of the case at the same time. What would be lost in such a system? Lawyer confidentiality ... is the typical answer. Then the question is what does "lawyer confidentiality" provide to any case? The only thing I could think of would be the ability to limit the outflow of information.

Sure; but at least in criminal cases, the "outflow of information"--and the sources from whence it comes--are vital. Fifth amendment and all. Should a criminal defendant really be forced to [pay an attorney to] marshal the evidence and build the case that will throw him in jail?

In civil cases, there are fewer protections. Any party--including the defendant--can be forced to testify; and if I as defense counsel know that my client is lying in a deposition or on the stand I've got to stop the proceedings, approach the judge and opposing counsel in chambers, and tell them (generally speaking) that my guy is lying. I think we're (theoretically) a lot closer to "full disclosure" in civil cases than many laypeople realize. Forcing parties to switch lawyers halfway through the case won't lead to more disclosure; it will just make the parties suppress information themselves rather than hoping their lawyers will suppress it.

Whether it is "germane to the case" could be determined by either lawyer if they are not partial to one side or another. In fact, what is germane to the case should be agreed upon by both sides, both legal counsel.

If I don't care if my client wins a case, why try? It sounds Machiavellian, I know; but really--why try?

To me, again a limited perspective - I realize, the system promotes secrecy and manipulation of words. Why is it that one lawyer is any better than another? I think the common perspective is that they know how to present material in such a way that is more favorable for their client. Truth should be truth no matter how it is spoken. If it is possible to say truth in such a way as to change a persons perspective about the "truth" than it really isn't truth anymore, it is truth possibly but laden with fluff or deceptive presentation to change opinion. That is what deceive is, to give a false impression, or even an incomplete one.

To be sure; but any legal system--adversarial or inquisitorial--is the way we resolve conflicts. Conflicts inherently have a winner or a loser; there will be gamesmanship and hiding of evidence in either. Our current system results in corrupt lawyers but (when all is said and done, and recognizing that there are regional variations) a relatively reliable judiciary. Conceptually, there's little reason to bribe a judge when it's an anonymous jury that's going to decide the case.

An inquisitorial system, IMHO, makes it more difficult for the judiciary to stay independent--both from private parties who want to win multimillion dollar lawsuits that all come down to one man's (or woman's) decision, and from government agencies who for their own reasons (not always related to "justice") wish to see a particular individual incarcerated.

If Lawyer A uses the same words as Lawyer B when they present the case and they both do not have any financial interest in who wins the case, then it is more likely to be spoken truthfully.

But basically that takes the twelve finders-of-fact we have in our current system (or eight or six or four, depending on where you are and how big your state designates juries to be for a particular offense) and boils it down to two; because the judge/jury is going to do whatever the lawyers agree should happen. That agreement may or may not have to do with the facts of the case or the applicable law.

I apologize--I think I'm not expressing myself well at present--my only excuse is that I'm somewhat pressed for time. Will try to clarify in the next day or so.

[Just_A_Guy]

This is interesting. I would like to hear from you why there is a difference in public opinion (maybe I am wrong about this) about Lawyers versus Judges. If you think the public view lawyers the same as judges, I guess you can't respond to that.

My guess, about that difference, is that Lawyers are paid to tell one side of the story, whereas Judges hear both sides of the story and don't have a financial or vested interest in who wins the case. Maybe that perception is wrong. And of course, I am not talking about all lawyers but more talking about their hired responsibilities.

Good question. I think you've got part of it--different expectations. I don't do what you think I should do. You expect me, as a lawyer, to reveal the truth directly. I expect, as a lawyer, to reveal my client's case; that my opponent will reveal his client's case, and that one of the byproducts of the resulting explosion of fact will be the truth--to be discerned by judge and jury. You expect me to be a machine that produces the truth. I see myself as one cog in the machine that will ultimately produce the truth. I do not yield the desired result per se; I am a part of a greater whole that yields the desired result. To blame me for not single-handedly producing "truth", in my mind, is like blaming a car's gasoline for not cleaning the windshield.

Judges, by contrast, do more or less what laypeople think they should do. (And at least where I practice, they tend to do it extraordinarily well. In law school I had visiting professors from all over the country rave about the integrity and professionalism of the Utah state judiciary.) And they are blessed to be the public face of a system that, taken as a whole, usually works.

Also, for what it's worth--every single person who goes to court, has a lawyer trying to (as they perceive it) hurt them. Only fifty percent of people who go to court, have a judge who hurts them--and even then, it's easier to blame the lawyer than the judge because we don't want to admit the possibility that the government might actually disagree with our position.

For a lawyer, the statistics are impossible to beat.

Edited June 1, 2011 by Just_A_Guy

[Seminarysnoozer]

I suspect he's talking about the jury. Their job is to determine if on X date and location you did Y (or more accurately if there is a reasonable doubt you did not), not to determine if you think X is attractive. Now if you've been stalking her that's probably germain but it's quite a leap from "I think she's attractive and would like to sleep with her" to "I grabbed her tush at the water cooler" or what have you. I suspect JAG would instruct his client to not go blurting (if for some reason he got on the stand), "I think she's an ugly old hag I wouldn't touch in a million years" as well even if that's his real opinion of her because it's not pertinent to the actual facts of the case and possibly prejudices the jury against him.

The issue then is if the other lawyer would see it the same way. Would the other lawyer want to make that information known (in general, not just that example, because maybe that is not the best example ... just made it up on the fly)? If one says 'yes' to that question, if the defending lawyer were in the prosecutor's shoes so-to-speak, momentarily, would the opinion change about whether that information was helpful or not to the case? If the answer is 'yes', then it is withholding information that is true.

I mean if you can honestly say that 99.9% of the time there is no piece of information that if the 'other side' knew about that would change how they present their case in court, then I will believe you. My perception is that most cases that go to court have some information that is truthful and relevant that only one side knows and the other doesn't. Otherwise, what is the value of lawyer-client confidentiality?

[Dravin]

If one says 'yes' to that question, if the defending lawyer were in the prosecutor's shoes so-to-speak, momentarily, would the opinion change about whether that information was helpful or not to the case?

Define helpful for the case. Something can prejudice the jury and help you 'win' the case but not in an real sense help the jury decide if reasonable doubt existed or not. Just because something is factual doesn't mean it's actually relevant to the facts of the case.

The point of trial is not to spill forth truth upon the jury (Your bust size is truth but completely irrelevant), the point of the trial is to determine if the state has a viable case for you being guilty of X. As a practical matter if you confess to your lawyer that "Yes, I hit her." '[though by JAG's experience that may be a far from common occurrence) and the state doesn't know that? They better have something to back up their accusation. If they don't it doesn't matter if the state is correct in accusing you of assult, the State is arresting you and trying to convict you of a crime it has no evidence you actually committed. There is a reason you are declared "not guilty" as opposed to "innocent". A trial doesn't determine truth in an of itself, it determines if the state has a compelling case against locking one of its citizens up. Generally we like to think that lines up with truth, but guilty people go free and innocent people get locked up.

You have to realize that the reason that discovery works one way is because the guys trying to throw you in jail? They have the might of the government behind them. The inequality is why the system is designed to give the defender a bone (as pointed out in civil cases where it isn't might of the government vs. you, the rules are different). It's the same reason behind warrants and the 5th amendment, there is an inequality of power and they are intended to prevent an abuse of that power. This is why it's predicated on you being innocent and the prosecutor (in a criminal case) having to establish beyond a reasonable doubt that you did X on Y date.

Actually that's an interesting question for you. A cop illegally breaks into someones house and locates an illegal substance. Current legal principles don't allow such to be used as evidence against you. Since it's the truth, do you think such should be used against you? Or do you agree with limitations and systems being put into place to protect freedoms and prevent abuse? If so then what we have is a disagreement over just what protections should be put in place.

As far as lawyer-client confidentiality, you really don't see why it might be a good idea to be able to talk to your lawyer without worrying that you might inadvertently be confessing to the state like for example saying something that sounds damning but isn't an admission of guilt? It's the same reason for clergy privilege, you should be able to consult with someone and get advice and input without the worry that the state is going to be able to pull up a transcript of it and effectively turn you into a witness against yourself. If you removed it, you'd either run into people only speaking in hypothetical or more likely you just have people shutting up (particularly in your hypothetical where I know the person who will be charged with making the state's case against me will be automatically privy to it). And as JAG points out, if a client is perjuring themselves he can take action to try to alert the court. If everyone is afraid their lawyer is mouthing everything to the guys trying to lock them up (or is one and the same), they aren't going to share anything and he won't be able to do such (an I imagine a client who won't talk to you cuts down on your ability to act as counsel).

In a perfect world Government never abuses its power, guilty people always confess, and innocent people are never convicted. But we don't live in a perfect world so the system is designed to accommodated that and balance the amount of innocent people convicted and the amount of guilty people who go free with the scales tipped in favor of the latter. Is it a Celestial System? No it's not, neither is politics, or the military (and various other things) but it's entirely possible to behave honorably within the system and do one's job with integrity within it. This does not mean that everyone does so, nor does it mean some improvements can't be made. Personally if I was to become a court lawyer I'd have a crisis of conscious between me and the Lord to figure out how I am supposed to do such (fulfill my job with honor and integrity), though I'd probably have that in the military, CIA, police, and various other professions.

Edited June 1, 2011 by Dravin

[Seminarysnoozer]

You have to realize that the reason that discovery works one way is because the guys trying to throw you in jail? They have the might of the government behind them. The inequality is why the system is designed to give the defender a bone (as pointed out in civil cases where it isn't might of the government vs. you, the rules are different).

As far as lawyer-client confidentiality, you really don't see why it might be a good idea to be able to talk to your lawyer without worrying that you might inadvertently be confessing to the state like for example saying something that sounds damning but isn't an admission of guilt?

Personally if I was to become a court lawyer I'd have a crisis of conscious between me and the Lord to figure out how I am supposed to do such (fulfill my job with honor and integrity), though I'd probably have that in the military, CIA, police, and various other professions.

What inequality exactly are you talking about? I guess I don't see that if the final common pathway either rests on the jury or judge, then the inequality is their opinion, not the lawyer's. The Lawyer's opinion for either side shouldn't matter, that is my point. Right now the system is designed so that a Lawyer's opinion can be purchased. Don't you see the danger in that?

Do you think O.J.'s lawyers at the end of the trial at closing arguments would have said, "well you know, after hearing the evidence, I am not really sure if O.J. did it or not." Of course not, they are paid to say, "He is not guilty." And moreover, "what the prosecution gave as evidence is untrue and unreliable." Paraphrasing - but that is essentially what O.J.'s lawyers said - the lawyer gave HIS opinion in the closing arguments that HIS client is not guilty and the information provided by the prosecution is not all correct.

... So, one of the sets of Lawyer's has to be lying, either the prosecution is correct or the defense is correct, they can't be both correct, unless they come out in their closing arguments and say, "you make the decision, I will not give my opinion as to the correctness of anything said by the prosecution or the defense." Anything more or less than that is the Lawyer's own view of the truth. If they misrepresent their own view of the truth by only stating facts that might lead in one train of thought, either guilty or not guilty, than that is a lie. If there are two opposing views of the truth than one is wrong. If in their statements they say, "He is guilty" or "he is not guilty" those are statements of what that person (the lawyer) believes to be true. If the lawyer is just presenting the facts and not his/her opinion then there should never be those kinds of statements or statements of the effect that the 'other side' is wrong. If they are opposing simply because of the fact they are paid to provide the opposing view, then their statements are prone to become lies and deceit (of course not every time).

In church, when I say "I bear my testimony that .... is true" I am personally responsible for my statements. If I testify that something is not true, even if I am not the one doing the crime or the one providing the prophesy etc (like Zeezrom to Amulek) then I am still held responsible for my statements. Just because one might be paid to say it doesn't absolve them of their testimony in front of men or government.

If one really believes in a just God that will give all rewards and punishments justly and the harms suffered in the name of God will be fully paid and added to in the next life and that all truth will be revealed, then there is no need to spend 3 to 6 million dollars defending one man for a crime. The value of one lie, outweighs 3 to 6 million dollars worth of "truth" and earthly justice, is the point I am trying to make. (Or whatever dollar amount). Lies are potentially damming for eternity whereas injustice in this life is but a short thing and fully corrected and accounted for in the next.

People that don't believe in a just God and have little faith in that, fight tooth and nail for justice, revenge, pay back, punishment and to get to the bottom of the accusatory "truth" in this life as if it will never be known otherwise. That by it's very definition is to have one's heart set on worldly things, whether it is worldly justice, money, power, a sense of judging someone or fame. That is what we are told to avoid, not abolish but avoid. We have to live in the world, but we don't have to be of the world.

Don't get me wrong, I am not saying it is ALL bad, as some might interpret this. I am just saying there is no reason to promote it with any bit of effort, for the same reason I wouldn't sell alcohol in a store that I owned. Like you pointed out, we all have things to contend with in any profession, but we try to avoid certain things if we can. If I am a waitress at a restaurant that sells alcohol, I am not going to set as a goal to be the top seller of alcohol. I suppose, if I were a lawyer, I would do everything I could to not got to court, to put myself in that position of bearing certain witness to the truth, either out loud or on paper (unless I knew it spiritually). ... I probably wouldn't be a "good" lawyer.

Edited June 1, 2011 by Seminarysnoozer
typo

[Dravin]

What inequality exactly are you talking about?

The state versus the individual. I cannot throw the government in jail, it however can throw me in jail. It also has more resources available to it in the furtherance of its case. Not just in pure money either, but in the authority it wields. The state can issue a warrant to allow its agents to search my house, I however cannot issue a warrant to allow my friends to search someone's house.

Do you think O.J.'s lawyers at the end of the trial at closing arguments would have said, "well you know, after hearing the evidence, I am not really sure if O.J. did it or not." Of course not, they are paid to say, "He is not guilty." And moreover, "what the prosecution gave as evidence is untrue and unreliable." Paraphrasing - but that is essentially what O.J.'s lawyers said - the lawyer gave HIS opinion in the closing arguments that HIS client is not guilty and the information provided by the prosecution is not all correct.

And? The the state had evidence which it felt was convincing and believed him to be guilty, which is why it made the case it did and offered it's opinion that he committed the crime by prosecuting him (and almost certainly offered it again in the closing arguments). That's what court is, it's two sides offering opinions. One side that there is reasonable doubt/non-guilt and the other side that he's guilty/there isn't reasonable doubt. Evidences are used to bolster the sides, but it boils down to two opinions of what took place. Don't let that they don't preface everything with "It's the opinion of the state that..." confuse you, they do it for the same rhetorical reasons most don't in other situations, it communicates a stronger position.

... So, one of the sets of Lawyer's has to be lying, either the prosecution is correct or the defense is correct, they can't be both correct, unless they come out in their closing arguments and say, "you make the decision, I will not give my opinion as to the correctness of anything said by the prosecution or the defense."

Except by countering the prosecution, or by presenting their case they are giving an opinion on the evidences presented. Do you realize how ridiculous it is to expect a trial to go like this?

Prosecution to witness: Where you there on the 15th?

Witness: Yes.

Prosecution: Did you see the defendant running from the building with his hands covered in blood.

Witness: Yes.

*later*

Prosecution: We want to remind the jury that we have no opinion as to if the defendant is guilty of the crime alleged. We also have no opinion on the evidence and if it effectively proves our case.

Jury: *thinking* Wait, if you don't think he's guilty, and you don't know if the evidence is reliable or not why are you trying him? *thinking*

You seem to forget that a prosecuting attorney in a criminal case represents the government. The government very well has an opinion on if the man is guilty or they wouldn't be trying to lock the man up. Likewise the defense attorney represents the client, who very well has an opinion on if he's guilty and should be locked up. Lawyers are not some sort of independent truth finders any more than advertising executives are, they represent their clients (the state in one case, the defendant in another) and make their case.

In church, when I say "I bear my testimony that .... is true" I am personally responsible for my statements. If I testify that something is not true, even if I am not the one doing the crime or the one providing the prophesy etc (like Zeezrom to Amulek) then I am still held responsible for my statements. Just because one might be paid to say it doesn't absolve them of their testimony in front of men or government.

Okay, but lawyers don't bear testimony. That rests on witnesses. What lawyers give is arguments. They are no more bearing testimony than I am when I write a school paper and argue that "Bio-diesel through microalgae is the solution to increasing petroleum prices." And that is effectively what a court case is. Side A makes their argument for guilt, and Side B makes counter-arguments against guilt (or for reasonable doubt), he who has the most effective arguments (generally) convinces the jury. Once again, a court trial is not a truth seeking mechanism, it's a guilt assigning mechanism that we like to think lines up with truth. The function of a lawyer in court is not to present the truth (and if it was it would be their opinion of the truth as they are not somehow fonts of truth) but to make their client's cases [not that such excuses unethical behavior] and the function of a jury is to render their opinion (not some sort of objective 'truth' as they aren't fonts of it either) on if the prosecution made an effective case and if their exists reasonable doubt (one again, in their opinion).

Edited June 2, 2011 by Dravin

[Just_A_Guy]

Do you think O.J.'s lawyers at the end of the trial at closing arguments would have said' date=' "well you know, after hearing the evidence, I am not really sure if O.J. did it or not." Of course not, they are paid to say, "He is not guilty." And moreover, "what the prosecution gave as evidence is untrue and unreliable." Paraphrasing - but that is essentially what O.J.'s lawyers said - the lawyer gave HIS opinion in the closing arguments that HIS client is not guilty and the information provided by the prosecution is not all correct. [/quote']

In my (admittedly limited) experience, I have never seen a defense lawyer do this. There are a couple of reasons.

First, I am not allowed to say anything to the court that I know to be untrue. Now, you might say "well, no one will know I've lied"--but as a defense lawyer, I don't can't be certain of that. Every client of mine is a potential ineffective-assistance-of-counsel appeal; and for all I know they're going to go before the bar and insist that they told me they were guilty and why didn't I plea them out? If I want to keep my livelihood, I have no choice but to assume that every factual assertion I make before a court is subject to verification at some point in the next few decades.

Second, if I make a practice of asserting innocence where I truly believe it, but falling back to "the state has not met its burden" when I know my client to be guilty--sooner or later the prosecutor is going to wise up to that; and he's going to point out to the jury "you know, I've practiced with Mr. JAG for fifteen years, and there's something he often says to jurors that he's not saying to you in this case".

So, no matter what I may or may not know about my client's relative guilt, my posture is always going to be "the state's case stinks" as opposed to "my guy is innocent. Innocent, I tell you!"

For what it's worth, the vast majority of the crim defense cases I handle (well over 80%, I think) end in a plea bargain without ever going to trial. If I take a case to trial, it's because I sincerely think there are problems with the state's case. Many (not all, but many) criminal defense attorneys charge a flat fee, not hourly--it's in our financial interests to wind up a guilty client's case quickly and not go tilting at evidentiary windmills.

Edited June 2, 2011 by Just_A_Guy

[Seminarysnoozer]

I would be perfectly fine with you saying "the case stinks" (not that I am claiming to be the judge of what anyone is doing, just for purposes of discussing hypothetical situations), but if one says "I think what the prosecution says is not true" makes the situation adversarial between the Lawyers, not just the accuser and the defendant. Read the O.J. Simpson concluding remarks (I am sure you already have), I realize that is an extreme example but I have been in enough court rooms to see it happen for minor things as well.

Maybe this is just the public's perception but I would say that "defending" someone or "representing" someone as the OP says, means that the person doing the defending or representing is in alignment with their cause, their side of the story, their side of the truth. Somehow, Lawyers can say, I represent this person but I that doesn't mean I agree with everything the person is saying. .... I think that is a false representation, and a set up for lying.

That is like saying, I could be a missionary but not believe in the gospel. If I went out and preached the gospel under the premise that I was just "doing my job", for one I probably wouldn't be very effective but also I would be telling a lie when I bear my testimony.

The only way around that is to make sure that when giving remarks, it has to be done truthfully without any implied perception that what is being said is the lawyer's opinion. An LDS lawyer may have to say from time to time something along the lines of "My client believes he is innocent." as opposed to "My client is innocent." Or, the LDS lawyer might have to say "According to the law the defendant is guilty." as opposed to "The defendant is guilty." ... I realize this would just seem like semantics or trivial to the world but I don't think God takes it that lightly, in my opinion.