The adversary procedure in criminal trials is familiar to most of us, at least in its basic aspects. At the outset the prosecutor summarizes the state's evidence in an opening statement. He or she then presents the evidence by calling witnesses. The defense counsel generally cross examines these witnesses, and the testimony elicited may move the prosecutor to ask further questions on redirect examination. Such, in turn, may stimulate recross examination by the defense counsel, and so on lentil neither side has anything more to ask. When all witnesses for the prosecution have appeared the defense counsel then presents witnesses. The same procedure as before takes place, only this time the prosecutor asks questions on cross examination. After the defense rests, either side may call additional witnesses, but only to testify about issues raised in the preceding testimony of the opposite side. When neither the prosecuting attorney nor the defense counsel has any more witnesses to present they each make closing arguments to the jury.

Because of their familiarity to us, adversary criminal proceedings, on first reflection, seem natural and inevitable for dispensing justice. Perhaps for this reason, criticism of them tends to concentrate upon particular deficiencies. One seldom hears objections to adversary criminal proceedings as a matter of basic principle. Nonetheless, precisely these kinds of objections have been voiced recently by an influential minority of observers of the legal system.¹ This paper begins by summarizing the substance of these objections. It then briefly describes the features of a less adversarial approach to criminal procedure. Finally, it explores the implications of the recent criticism of adversary criminal proceedings for some familiar but continually troubling problems of legal ethics.

Lloyd L. Weinreb writes that, "even at their most extravagant the justifications [of adversary criminal proceedings] do not reach the concrete consequences of practices which, but for their familiarity, we should regard as peculiar in the extreme .. . .the most distinctive features of a criminal trial in this country should not be regarded as virtues. They are generally contrary to any of the purposes for which the trial is supposed to be conducted."²

Weinrebbegins his critical attack by considering the examination and selection of jurors known as voir dire.³ Under this procedure prospective jurors are interviewed by both sides. If the answers given to questions put by either the prosecuting or defense attorney reveal a basis for doubting the ability of a prospective juror to consider the case objectively, the judge will excuse him or her "for cause." In addition, however, each side is allowed a number of "peremptory challenges" under which jurors may be eliminated with no inquiry into the reasons for doing so. Weinreb points out that the existence of peremptory challenges makes the voir dire examination in practice not a means of excluding jurors of doubtful objectivity, but rather, quite the reverse.

Lawyers use the examination, he contends, primarily to include on the jury, if they can, persons likely to be favorably disposed to their side of the case. Since peremptory challenges need not be based on generally accepted grounds for suspecting partiality, lawyers tend to ask very broad questions. They attempt to elicit from a potential juror indirect expressions of his or her religion, economic status, ethnic identification, political views, and so forth from which the lawyer tries to guess the potential juror's attitudes toward the issues in the case. Manuals on trial tactics, Weinreb notes, are replete with advice about how to identify favorable and unfavorable jurors not only from information they give, but from their demeanor as well. Weinreb complains that voir dire thus introduces into a criminal trial at its very outset a tactical feature wholly unrelated to the defendant's guilt or innocence.

As for the trial itself, Weinreb has an equally negative point of view.⁴ In his words: "[in] one way or another, every aspect of the trial is distorted by the presentation of evidence exclusively through the prisms of the prosecution and defense .... the testimony of a witness is shaped and packaged to meet the particular needs of the side for which he testifies, according to the general assumption that all testimony favors one side or the other."⁵

Thus, Weinreb complains, witnesses are "coached" to improve the impact of their testimony upon the jurors. The more simple, direct, and unequivocal a witnesses testimony the better, even though, as Weinreb notes, under ordinary circumstances these very qualities could make the testimony suspect. Before trial both the prosecutor and the defense "help" witnesses make uncertain recollections more definite. They encourage witnesses to give answers to questions that probably would not have occurred to them, so that their perception of important facts appears more certain than it really is. The attorneys discuss questions the opposing counsel will probably ask, and what the answers should be. If an attorney's own witnesses disagree about some important factor, it is considered quite proper for him or her to seek resolution of the disagreement. Attorneys only ask questions of their witnesses worked out ahead of time to which they anticipate favorable responses. On cross examination the attorneys try to "shake" opposing witnesses, often by belaboring minor inconsistencies or insisting upon precision about trivia.

Weinreb notes that the seemingly excessive competitiveness which prevades the adversary criminal process even reflects itself in customary criteria of success for both defense attorneys and prosecutors. The former gain their reputations on their ability to "get clients off". For prosecutors, likewise, the outcome is all that counts. Prosecutors never receive congratulations for an acquital. Thus in practice adversary proceedings far more resemble a rough and tumble competition than a process one would associate with a reasonble effort to establish the truth about guilt or innocence.

Increasingly dissatisfied with criminal procedure in the United States, some legal scholars have begun to look at criminal justice systems in the countries of continental Europe as a source of guidance for reforms. John H. Langbein provides a concise description of German criminal procedure which emphasizes some fundamental respects in which it contrasts with the adversary approach.⁶ To begin, according to Langbein, no jury exists in German trials. Instead, a panel of judges, consisting of both professional judges and lay persons hears the case and deliberates about it collectively. In cases of serious crime, the professional judges outnumber the laypersons three to two.For less serious crimes the lay judges predominate two to one. For both kinds of cases German procedure requires a two-thirds majority for conviction.

Trials are presided over by a professional judge who, Langbein notes, is the leading figure in the proceedings. He or she has the primary roles that belong to the opposing lawyers in the Anglo-American system, most importantly, examining the accused and taking evidence. Before the trial the presiding judge examines a dossier on the case provided by the prosecution to determine the order in which to call witnesses and to prepare himself or herself for examining them. All witnesses nominated by the prosecution and the defense must be examined. The court, however, may call witnesses on its own. Moreover, German procedure specifically provides that the presiding judge shall determine when and how many expert witnesses to summon.

Because the presiding judge conducts the taking of proof, lawyers for the prosecution and for the defense play relatively minor roles at the trial. The prosecutor reads the accusation aloud when the trial begins, and both lawyers may ask questions of the various witnesses after the presiding judge has completed his or her examination. Langbein maintains, however, that ordinarily lawyers do not make extensive use of this opportunity. He observes that "if the judge has been thorough, there will be little for the 'advocates' to ask." ⁷ Even if the judge has not handled an examination as the prosecutor of defense would have wished, lawyers will be reluctant to examine at length themselves for fear of seeming to imply dissatisfaction with the judge's performance.⁸ When the presiding judge has concluded proof taking, the prosecutor and defense counsel then each make closing statements. The two opposing lawyers thus generally remain more or less passive throughout the proceeding, taking notes in preparation for presenting their cases on appeal. The German system has very liberal rules about appeal which apply equally to both sides.⁹

German criminal procedure minimizes the role of the attorneys for the prosecution and defense not only because the judge performs the primary functions allotted to them under the Anglo-American system, but because, the defendant plays a far more active role. As Langbein says, ` [in] the usual Anglo-American trial the accused is a strangely awkward bystander. His lawyer does the talking. Even if the accused elects to testify, his role is assimilated to that of other witnesses: he is examined and cross examined, then he relapses into silence."¹⁰ In sharp contrast, defendants in German trials participate actively. They speak directly to the presiding judge without the intercession of counsel. Furthermore, German procedure encourages defendants to talk directly and extensively. Defendants are not sworn, and thus never risk perjury. After witnesses have testified, the presiding judge frequently invites defendants to respond to their testimony. German procedure requires that the accused be permitted to put questions to the witnesses.

Weinreb has vigorously advocated reform of American criminal procedure along lines similar to the German system as Langbein describes it. He says in this regard that, "[a] proceeding conducted along these lines would be entirely unlike an American trial, although not so unlike proceedings in other countries. The departures from our existing practices are only the result of eliminating the adversary system where its effect is not to further the goal of a prompt, accurate determination of guilt . ...At the same time, where partisan advocacy would assist the goals of the proceeding it would be retained . ... If the shift of the line between neutrality and advocacy seems strange in the context of a criminal trial, it is a far more normal one in our experience generally. But for its unfamiliarity, it is likely to be more easily understood, applied, and accepted than the lines we draw now."¹¹

The immediately preceeding comments by Weinreb may have special relevance in the area of legal ethics. Personally troubling moral problems often confront defense lawyers engaged in adversary criminal proceedings. By contrast, under the continental system it would seem that such problems do not arise, or at least not in the excrutiatingly difficult form they can take in an adversary system.

May defense attorneys present testimony that their clients have admitted to them is untrue? May they seek to discredit testimony that they consider accurate? If a client, who an attorney has defended successfully, discloses his or her guilt, what should the attorney do? What if another person is later convicted of that crime? By their very nature these questions appear to call for categorical answers. Yet in considering them, one finds oneself strongly pulled in opposite directions. For this reason, diametrically opposed answers often seem unpersuasive. A brief look at how two leading writers, Alan Goldman and Monroe Freedman, deal with these questions suffices to illustrate the point.

Alan Goldman strongly contends that "[there] are cases in which skepticism on the part of the lawyer [about a client's guilt] is impossible. In such cases the goal of maximum protection for the innocent, which defines the normal role of the criminal lawyer in the adversary system does not apply. Lawyers are not therefore justified in using all those tactics to secure acquittal, includingpresentation of false testimony, harmful aggressive cross examination, or impeachment of testimony, harmful, aggressive cross examination, or impeachment of testimony of truthful witnesses, that they might be justified in using to prevent conviction of an innocent client. If a lawyer knows with certainty that his client is guilty of a serious crime, then his convincing a jury of the client's innocence by hiding incriminating facts, presenting false testimony, or breaking truthful witnesses appears to thwart the moral purpose of the legal system rather than further it."¹²

The last point seems obvious on first impression. Criminal procedure exists primarily for the determination of guilt or innocence. In adversary proceedings, the attorneys have between them virtually the sole responsibility for presenting the evidence upon which the jury reaches its verdict. Because of this, defense lawyers who ask questions on direct examination which they believe will be answered untruthfully, undermine accurate testimony, and so forth, substantially assist guilty client's to escape deserved punishment. Goldman contends that a straightforward moral assessment of the matter, unmediated by "institutional blinders", inescapably leads one to regard the above kinds of behavior by lawyers as completely unjustifiable.¹³

Goldman's arguments for the above position, however, are unpersuasive. The considerations he points to are all compelling, in and of themselves, but the conclusion he draws from them seems far too pat.¹⁴ On reflection, there is a completely different side of the question he fails to appreciate fully.

The fact that lawyers more or less dominate adversary criminal proceedings cuts two ways. It makes them alders and abettors in a guilty client's successful evasion of deserved punishment. On the other hand, precisely because of the dominant role it accords lawyers, the adversary system of criminal procedure does not provide very extensively for client self help. The duty of confidentiality thus serves an essential purpose. A defendant's belief that his or her attorney strictly adheres toitfosters candor without which the attorney cannot prepare an effective defense. As just mentioned, it is extremely difficult for individuals to represent themselvesin adversary criminal proceedings. This means that if defense attorneys cannot prepare effective defenses then, for all practical purposes, clients go undefended.¹⁵

Monroe Freedman forcefully presses the above points in his book Lawyers Ethics in an Adversary System.¹⁶ He briskly but thoroughly reviews the various proposals advanced for enabling defense lawyers to avoid having to present perjured testimony, undermine truthful witnesses, and so forth, and shows how, in one way or another, they leave the client defenseless.¹⁷ Freedman concludes, "I stand with those lawyers who hold that `the lawyer's obligation of confidentiality does not permit him to disclose the facts he has learned from his client which form the basis for his conclusion that the client intends to perjure himself'. What this means necessarily it seems tome-is that the criminal defense attorney, however unwillingly in terms of personal morality, has a professional responsibility as an advocate in an adversary system to examine the perjurious client in the ordinary way to argue to the jury, as evidence in the case, the testimony presented by the defendant."¹⁸

Freedman's arguments, however, like Goldman's, leave one feeling dissatisfied. Despite the vigor and thoroughness with which he presses these arguments they ultimately yield a conclusion which, although Freedman seems unaware of it, is highly conditional. In effect, he concludes that lawyers within an adversary system have no responsible choice, consistent with their roles as advocates, but to pursue the course he (Freedman) describes in the preceding quotation.

What should one make of this? I think it depends upon one's general attitude toward the adversary system of criminal justice. If one regards it as an essential aspect of criminal due process then the presentation of perjured testimony, discrediting of truthful witnesses, and so forth, by defense attorneys will seem a necessary evil. On the other hand, one who does not so regard the adversary system might well take Freedman's conclusion as strong grounds for a career decision not to become involved in adversary criminal proceedings as an advocate for the defense. In other words, it counts substantially against the choice to occupy a certain institutional role that doing so will place one time after time in morally ambiguous situations.

Freedman fails to note this point, I think, because he presupposes the indispensability of an adversary system of criminal procedure.¹⁹ Not everyone, however, shares such a view. Indeed, quite the opposite, I suspect that Weinreb's litany of defects fn adversary criminal proceedings cited earlier strikes a responsive chord inmost people even if their negative feelings about the matter do not run so deep as his do. Freedman's approach then, like Goldman's, overlooks a critical aspect of the ethical problems faced by criminal lawyers in an adversary system. For this reason, however admirable its conciseness and clarity, Freedman's discussion leaves one with the feeling that something very important was left out.

The foregoing remarks strongly suggest that the most difficult problems of legal ethics defense attorneys confront in an adversary system of criminal procedure admit of no satisfactory resolution. So long as one plays the role of advocate for the defense in such a system, the duty to maintain the confidences of one's clients seems nearly paramount. This is because, given the predominant role of the attorney in adversary proceedings, departure from very strict adherence to this duty deprives the client of any defense. The adversary system makes it virtually impossible for defendants to function without assistance of counsel. But realization of these points fails to remove the sense of moral ambiguity that surrounds the defense attorney's role. Because of the seemingly vast divergence of adversary criminal proceedings from common sense beliefs about how one should ascertain guilt or innocence, one can hardly avoid a demoralizing sense of skepticism about the entire enterprise.

The German system of criminal procedure, described by Langbein, allots attorneys a significantly smaller role than they have in adversary proceedings. This strongly suggests that many of the wrenchingly difficult moral problems encountered by defense attorneys under the Anglo-American system do not arise for their German counterparts. Since the presiding judge carries out the examination of witnesses, German defense attorneys generally do not face the problems of whether to present perjured testimony or to discredit truthful witnesses. Since they have a much smaller role in the proceedings than do lawyers under the Anglo-American system, in all likelihood their clients feel less need to tell them everything. Thus, German attorneys seldom face situations under which they feel compelled to reveal confidential disclosures of their clients to legal authorities.

Perhaps the best answer one can give to the hard ethical questions for Anglo-American criminal defense attorneys is that these questions will remain intractable so long as we retain the adversary system in its current form. They could be made far less pressing as a practical matter, however, by a move in the direction of the German approach. This point, perhaps, by itself does not constitute a decisive ground for effecting such a move. But its weight is far from negligible. It is not good when a procedure creates such complex moral dilemmas for its leading participants that they develop highly ambivalent feelings about the value of their alloted roles. Such a situation in time has damaging psychological effects upon the participants, and these, in turn, ultimately work to undermine the process itself. Consider the following remarks by an experienced criminal defense attorney:

"The constant exposure to lies has made me more suspicious of people. I find myself immediately sizing up character and trustworthiness, automatically searching out motives. I have developed a reflex of recalling all prior inconsistent statements, no matter how trivial. These are good habits for a criminal lawyer-if only they didn't bleed into my personal life.

Destroying witnesses can lead to an arrogance and an inflated sense of control over people that is, at times, difficult to leave behind in the courtroom. The temptation to dominate a social gathering or individual encounter sometimes seems irresistible. The arrogance will betray itself in an impatience with people who are not speaking 'relevantly' or 'responsibly'.

All successful criminal lawyers I know are egomaniacs.. . there isn't a criminal lawyer I know certainly including myself-who hasn't interpreted a 'not guilty' as proof of his unique gift, his insight into haw to manipulate people."²⁰

If only because they might go some way toward making the above kind of self assessment by defense attorneys less prevalent, reforms in the direction of the continental system of criminal procedure should be considered seriously.

Footnotes
1. This article summarizes the following two books which present fundamental criticism of adversary criminal proceedings: Lloyd L. Weinreb, Denial of Justice. (New York: MacMillan, 1977) end John H. Langbeia, Comparative Criminal Procedure: Germany (St. Paul, Mina.: West Publishing Co., 1977). Judge Marvin E. Frankel has voiced similar criticisms in en article entitled "The Search for Truth: An Umpireal View" University of Pennsylvania Law Review. Val. 123 p.p. 1031-(1975).
2. Weinreb, p. 88
3. Weinreb, p.p. B8-87
4. Weinreb, p.p. 97-103
5. Weinreb, p. 99, p. 102
6. Langbein, cited at n. 1
7. Langbein, p. 64
8. Langbein, p. 64
9. Langbein, p.p. 82-85
10. Langbein, p. 65
11. Weinreb, p. 143.44
12. The Moral Foundations of Professional Ethics (Totowa, N.J.: Rowman and Littlefield. 1980) p.p. 119-120
13. Goldman, p. 151
14. Goldman presents a sophisticated analysis in which he applies an account of moral rights, worked out in the first chapter of his book, to problems of legal ethics. Since, it seems to me, the substance of my criticism of Goldman's views may be raised within his moral rights framework, I have not described the details of that framework.
15. Such was the basic idea behind the decision of the United States Supreme Court in Gideon v Wainright 372 U.S. 335 (1963).
16. (Indianapolis: Bobbs Merrill, 1975)
17. Freedman, Chs, 3 and 4
18. Freedman, 40-41
19. Freedman writes: "The system of professional responsibility that I have been advancing. . . is one that attempts to deal with ethical problems in context ...that is, as pert of a functional sociopolitical system concerned with the administration of justice in a free society."(46)
20. Seymour Washman, "Confessions of a Defense Attorney" Village Voice Vol. XXIII no. 39, Sept. 28, 1978, p. 45.