The Role of the Lawyer in the Criminal Justice System
Criminal Law & Procedure Practice Group Newsletter - Volume 2, Issue 3, Winter 1998 December 1, 1998
Samuel A. Alito
The remarks below are extended excerpts from a presentation made by Judge Alito at the 1997 National Lawyers Convention, entitled "The Crisis in the Legal Profession." This conference examines the impact of lawyers and the legal system "on government, freedom, responsibility and virtue." The conference brochure presents as a benchmark the lawyer/statesman who played such a prominent role in our country’s early years. I want to return to that ideal in addressing the particular topic that is before us in this segment of the conference — the role of the lawyer in the criminal justice system. At the risk of comparing two things that are really not comparable, I would like to compare that ideal with our current understanding of the role of the lawyer in the criminal justice system. The lawyer/statesman ideal has been aptly described by Dean Anthony Kronman in his book The Lost Lawyer. Dean Kronman, in his presentation this morning, explained this ideal much better than I can. To capsulize his remarks, Dean Kronman believes that the lawyer/statesman, the outstanding lawyer under that ideal, is a devoted citizen who cares about the public good and is prepared to sacrifice his own well-being for it. The help that the lawyer/statesman provides to clients, Dean Kronman argues, is not merely "instrumental." He is not simply a servant of his client in that sense. One of his most important responsibilities "is to offer advice about ends." Although Dean Kronman does not suggest that it is possible to restore fully the ideal of the lawyer/statesman, he does ask whether some of the central values of that ideal can be recaptured. How does this ideal compare with our current understanding of the role of the lawyer in the criminal justice system? To examine that, we must look at our current understanding of the nature of our system. As numerous Supreme Court opinions and other pronouncements have reminded us, our criminal justice system is an accusatorial or an adversarial system and not an inquisitorial system. When an American judge or lawyer draws this sharp distinction between the adversarial and the inquisitorial, the clear message almost always is that the adversarial is good, the inquisitorial is bad, and any effort to depart from the purely adversarial view is something that must be resisted. Our criminal justice system, however, is not purely adversarial. Consider, for example, the typical criminal case with a prosecutor and a defense attorney. At least one of these — the prosecutor — is not supposed to behave like a single-minded opponent or adversary of the defendant. As the Supreme Court has said in a very famous passage that almost every prosecutor and criminal defense attorney in the country has memorized, the prosecutor is not supposed to be the representative of an ordinary party to a controversy. The objective of the prosecution in a criminal case is "not that the prosecution shall win the case but that justice shall be done." This is hardly a description of a single-minded adversary or opponent. When one of the two adversaries is not supposed to act like a pure adversary, it is difficult to see how our system can be aptly described as entirely adversarial. I next want to turn to the role of the criminal defense attorney. In doing so, it is not my purpose to pick on criminal defense attorneys or to suggest that they are venal and prosecutors are virtuous. Prosecutors know the Berger script. They know how they are supposed to behave, and therefore, when they write or speak about the role of the prosecutor, it is always a version of those requirements. Defense attorneys, on the other hand, can be more colorful and uninhibited in describing the role that they understand themselves to be playing. Here is an example, and I don't think it's atypical. "A...
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