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The Adversary System

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The "adversary system" is the fundamental concept behind American jurisprudence. It is assumed by our system that when you have 2 people on opposite sides who are trying to win, the party that has the truth on its side will ultimately prevail. Of course, as we all know, it doesn't always work that way; but that's our system.

Many Continental European systems use the "civil law" method. Under that system, all the lawyers in the case are responsible to help in the "search for the truth." If one lawyer has information that would help the other side or comes to agree with the other side's view, he or she has the right and/or duty to say so. Which system do you think is more effective and why? Also, do you see any constitutional problems with applying the civil law system to the U.S.?

For this assignment, in addition to answering the above questions, I would like you to find at least one case (which can be done most easily from Lexis) in which the limits of the adversary system were discussed or tested. The subject matter of the case itself can be anything, but the focus should be whether an attorney or firm's responsibility to a client or court outweighs some other "greater" or "moral" responsibility. For this case, please briefly discuss the ethical issue and how the court resolved it.

Which system do you think is more effective and why? U.S. system. The adversarial system emphasizes the debate between the two parties and the judge only directs the jury and guarantees that protocol is followed. Justice is done when the most effective opponent is able to convince the judge or jury that his or her perspective on the case is the correct one.

Also, do you see any constitutional problems with applying the civil law system to the U.S.? The right to trial by jury is guaranteed under the Constitution, and civil law countries usually don't use juries. We also don't have professionally trained judges in the U.S.--our judges are appointed. Moving to a civil law system would require a complete overhaul of the way we train and appoint judges.

Find at least one case in which the limits of the adversary system were discussed or tested. The subject matter of the case itself can be anything, but the focus should be whether an attorney or firm's responsibility to a client or court outweighs some other "greater" or "moral" responsibility. For this case, please briefly discuss the ethical issue and how the court resolved it.

McClure v. Thompson, 323 F.3d 1233 (9th Cir. Or. 2003)

In McClure, the petitioner wanted habeas corpus relief after being convicted for three aggravated murders. He claimed ineffective assistance of counsel and that his original defense attorney improperly disclosed the locations of the bodies of two children whom he was eventually convicted of killing.

The United States District Court for the District of Oregon denied the petition and petitioner appealed. Although the appellate court held that petitioner's consent was not fully informed, the disclosure was nevertheless proper because it was necessary to prevent further criminal acts. The attorney believed that the children could have been alive based on petitioner's statement that "Jesus saved the children." The attorney believed he was preventing two murders. Although this statement was vague, the appellate court deferred to the district court's determination that petitioner manipulated the facts, and that when the attorney informed petitioner that he had an obligation to disclose the children's whereabouts if there was a chance they were alive, petitioner did not tell him they were dead. The district court also found that the attorney reasonably investigated whether the children were alive under extremely difficult circumstances. Finally, the appellate court rejected the argument that the attorney had a conflict of interest in that he was more concerned for the children than his client's interests. The attorney repeatedly referred to his concern that petitioner's kidnapping charges could have become murder charges if the children were allowed to die.

In McClure, the appellate court affirmed the decision of the district court.

Nix v. Whiteside, 475 U.S. 157 (U.S. 1986)

In Nix, the accused, who was charged with murder, repeatedly told his attorney that, although he had not actually seen a gun in the victim's hand when he stabbed the victim, he was convinced that the victim had a gun. No gun was found on the premises where the victim was stabbed, and the accused's companions who were present during the stabbing told the accused's attorney that they had seen no gun. Shortly before trial, the accused told his attorney for the first time that he had actually seen "something metallic" in the victim's hand and not a gun, and that "if I don't say I saw a gun, I'm dead." The attorney advised his client that the claim of self-defense could be based on the his reasonable belief that the victim had a gun; that it was not necessary to prove that the victim actually had a gun; that the attorney would not allow the accused to commit perjury; that the attorney would probably impeach the accused's testimony that the victim actually had a gun; and that the attorney would seek to withdraw from representing the accused if the accused insisted on committing perjury. At the accused's jury trial, in an Iowa state court, the accused testified that he believed that the victim had a gun, but he admitted that he had not actually seen a gun. After the jury returned a verdict of second-degree murder, the accused moved for a new trial on the ground that he had been deprived of a fair trial by the attorney's admonitions not to state that he saw a gun or "something metallic."

The accused's motion for a new trial was denied, and the Supreme Court of Iowa affirmed the accused's conviction, holding that the attorney had properly refused to help the accused commit perjury. The accused then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa, and the District Court, denying the writ, held that there could be no ground for habeas corpus relief because there was no constitutional right to present a perjured defense. Reversing the District Court's decision and directing that the writ of habeas corpus be granted, the United States Court of Appeals for the Eighth Circuit held (1) that the attorney's threat to withdraw and to inform the court of the accused's perjury had impermissibly compromised the accused's Sixth Amendment right to effective assistance of counsel, and (2) that the attorney's conduct was presumptively prejudicial to the accused's defense.

In Nix, the Court of Appeals denied a motion for rehearing en banc.…...

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