The criminal justice system, due to its nature, is rife with all kinds of ethical dilemmas. This is to be expected, as the courts often deal with matters of life, death, sentencing, and punishment, which deprive individuals of their freedoms and liberties for a very long time. Attorneys and defense counselors face many ethical dilemmas, as they are supposed to stand for the accused. One of the most difficult dilemmas for any defense counselor to come across is the issue of defending the guilty.
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This dilemma represents the confrontation between the need to expose the truth and the rights of the accused, some of which include the right to counselor privacy and the right against self-incrimination. Defending the guilty is what earned the defense counsel a bad reputation in society, as criminal attorneys are viewed as dishonest and dishonorable individuals ready to defend murderers and rapists, obscuring evidence and misleading the jury in order to win the case. The purpose of this paper is to investigate this ethical issue through the prism of three ethical models and determine whether the truth or civil rights have more importance in the existing justice system.
Defending the Guilty – A Side Effect of the Adversarial Justice System
According to Woolley (2016), the issue of defending the guilty arises from the concept behind the adversarial justice system currently in place in the US. This system works in a way, where the judge and the jury act as mediators between the prosecution and the defense. Each side is supposed to try their hardest to prove their point. The search for the truth, in this system, is considered an inevitable side effect of the competition and not the sole purpose of the system’s existence. This brings up several ethical issues in regards to defending the guilty, such as:
- The issue of the defense willfully undermining its own position versus basing the defense on lies as well as shortcomings of the prosecution.
- The issue of the defense counselor being treated as a quasi-witness.
- The issue of the prevalence of civil rights over the objective truth.
The majority of existing literature dismisses these issues for various reasons. The concept of quasi-witness, explored by Staler (2016) is dismissed due to its existence violating several rights of the defendant. The emphasis on rights over truth is further emphasized by Liebman (2016), who advocates for certain measures and techniques implemented in defense of the guilty that allow obscuring the truth while remaining ethical, from a rights ethics perspective. It is possible to see that the existing legal framework is largely based on rights-based ethics, which puts the existence of unalienable rights above anything else (Rohr, 2017).
Alternative Ethical Perspectives
While the concept of an adversarial justice system, as well as the concept of defending the guilty, is easily justified and defended within the scope of rights-based ethics, the perspectives of other prevalent models provide additional insights into the situation. From the perspective of Kantian deontological ethics, as well as his concepts of duty and morality, the existing justice system is a farce, as in many cases it sacrifices the truth in favor of maintaining a “fair competition.” According to Kant, the sole purpose of the criminal justice system is to discover the truth as well as to determine the innocent and the guilty (Ripstein, 2017). If the system is not geared towards that ultimate goal, it is immoral.
From a utilitarian perspective, it is difficult to conclude which course of action is beneficial to the individuals involved and the society as a whole. On the one hand, the incarceration of the criminal and the facilitation of justice as a result of a defense attorney exposing the guilt of the defendant will provide immediate long-term benefits for society. However, the existence of a precedent where a defendant’s rights have been broken has the potential to lead to increased damage and loss of happiness further down the line (Cahn, 2016).
Is Adversarial System Ethical?
The majority of researchers supporting the prevalence of rights over truth are practicing within the existing adversarial system. Thus, there is a potential conflict of interest, as they may try to justify themselves instead of searching for the best answer to the dilemma of defending the guilty. This raises the point of whether the adversarial system is objectively ethical. Despite its ethical framework being based on the perspective of rights, its justification for existence is based largely on utilitarianism. The adversarial system operates on the assumption that competition would derive the best percentage of accurate legal outcomes.
This assumption, according to Sevier (2014), stems from historical factors that led to the adoption of the system in the US. The fact that the efficiency of the adversarial legal system versus the inquisitorial model has not been proven by any empirical data, as no direct comparisons were made. Thus, the adversarial system currently in place cannot be justified from the utilitarian point of view as the most efficient.
The ethical dilemma of defending the guilty is not just a single issue within the existing adversarial system. It is a fundamental flaw, one of many. Critics of the existing system in the US state that the majority of cases are resolved not through the discovery of truth but through plea bargaining and settlement. My position on the matter is that defending the guilty is morally apprehensive, as I share the Kantian perspective on the purposes of law and the justice system in society. These systems exist to protect society by searching for the truth. Exposure of incriminating evidence by the defense should be a duty, not a dilemma.
Cahn, S. M. (2016). Seven masterpieces of philosophy. New York, NY: Routledge.
Liebman, J. A. (2016). Dishonest ethical advocacy?: False defenses in criminal court. Fordham Law Review, 85(3), 1319-1353.
Ripstein, A. (Ed.). (2017). Immanuel Kant. London, UK: Routledge.
Rohr, J. (2017). Ethics for bureaucrats: An essay on law and values (3nd ed.). New York, NY: Routledge.
Sevier, J. (2014). The truth-justice tradeoff: Perceptions of decisional accuracy and procedural justice in adversarial and inquisitorial legal systems. Psychology, Public Policy, and Law, 20(2), 212-224.
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Staler, E. (2016). A legal and ethical puzzle: Defense counsel as a quasi witness. Fordham Law Review, 85(3), 1427-1463.
Woolley, A. (2016). Hard questions and innocent clients: The normative framework of the three hardest questions, and the plea bargaining problem. Hofstra Law Review, 44(4), 1179-1205.