Our Contentious System, Part One
You might think people in other parts of the world don't understand some of the aspects of our "American system" (other countries are similar, but not quite the same in all aspects). Actually, the people who often don't understand it are AMERICANS! We have a very contentious system. The point of some of this contentiousness isn't that a "winner," be it a person or an idea, is "right," but that the winner has prevailed after each, or all, sides have had their chance to present its case. I know some of this gets on our nerves at times, but the question becomes, how would you replace it? The other thing to remember is, our system is NOT perfect, in spite of the claims by super patriots, who seem so insecure as to never want to admit to the slightest flaw; but, no system yet put in place anywhere IS perfect. That doesn't mean we should throw in the towel and stop trying.
Look at the legal system. As the saying goes, "We all hate lawyers.....until WE need one!" One of the greatest television shows EVER, the original "Law and Order," showed the workings of the criminal justice system, with all its ah ... flaws? discrepancies? shortcomings? Give me a word here, PLEASE! In one of my favorite episodes, a woman is found dead in her apartment, but some blood from a relative is found there too. After much investigation, the police find out the blood belongs to a woman bank teller. She tells them the dead woman was her mother and that she spent time tracing who her mother was, after spending years in an orphanage. The mother, of very modest means, then told her the father had been a multimillionaire who recently passed away, leaving a fortune "to his children," the names of "his children" not being specified. The police arrest the teller for murder, and they bring in a bank officer who is the teller's boyfriend. Bank cameras showed the teller handing the bank officer a purse upon return from the mother's apartment. Police suspect the purse, not with the teller when she left the bank, contains a blouse covered with blood, as the teller had on a different blouse upon her return to the bank, a blouse several sizes too large for her, but the same size as her mother. After some tough questioning, the bank officer admits that he looked into the purse and that he did indeed see it had such a blouse in it. Meanwhile, down the hall, the police are questioning the woman who has her story down pat. After some tough questioning, she tells them she wants her lawyer. When they ask for a phone number, she tells them they have him down the hall. The boyfriend then tells the police he is the woman's attorney.
The show then shifted to the legal wrangling. The teller hires a criminal defense attorney who goes before a judge arguing that anything the boyfriend bank officer/lawyer told the police was protected by attorney client privilege. The guy had not paid his annual dues to the Bar Association for a few years, but the new attorney loans him the money to bring his dues up to date. The judge rules that as long as the accused woman believed the boyfriend to be her lawyer, that is what counts, and all of his admissions cannot be used against her. It turned out, the boyfriend had been representing the teller in pursuing a claim for part of the dead millionaire's estate.
Okay, what do we have here? "Attorney-client privilege" is an important part of our judicial system. We have a right to consult with an attorney, privately, and to keep those consultations private, under most circumstances.* An attorney of any type, not just a defense attorney, is supposed to defend their client's interest to the utmost. In criminal cases, the prosecution tries to their utmost to convict the person charged with a particular crime. In the television episode covered above, the judge knows the woman is likely guilty from the boyfriend's admissions, but because he had been representing the teller and because the client saw him as her attorney, the judge threw out the evidence. You may not like that evidence against an apparently guilty person is tossed, but that's how it works. We have protections and those protections were put into law to guard against the "state" from being able to do anything and everything to send someone to prison. Remember, there are still countries where whatever the "state" says, goes! Innocent though a person may be, they go to prison. Our system isn't perfect, and innocent people do get convicted, but it is fairly rare. The basic idea of our system is it is better to let a guilty person get off, than to convict an innocent person.
There is always public opinion in high profile cases, but even more importantly there are the feelings of the victim's survivors. In the above television case, what if you were the murdered woman's relative? Would you shout "Yippee! The Constitution works?" My guess is, no, you would likely be furious with the judge for tossing evidence against the apparent killer of your relative. That's just human nature. Depending upon the ultimate outcome of the trial, you "might" see the constitutional issue involved as time passed. In the above case, there is strong evidence to believe the woman is guilty, but let's say evidence tossed by a judge in another case were not as damning. Relatives of the victim are still likely to scream "Foul!" What if, in such a case, the person were truly not guilty? As victims, or relatives/friends of victims, we usually want revenge, and again, like it, not like it, that's a part of human nature. We want someone to pay for the crime. The judicial system is not supposed to be swayed by such things, but it is only supposed to be concerned with the law, no matter who it helps or hurts, but we all have feelings, and enforcement of our laws is certainly subject to those feelings. So under our system, some guilty people go free; probably far more than we'd like, while some innocent people pay a price; probably not many, but how about if YOU were going to prison for something you did not do? Would you be singing the praises of the law?
* There are exceptions, such as if someone else is present during consultations, or if the attorney is in any way connected to the crime being charged, or if the person charged waives his/her right to the privilege. What do these mean? As is always the case, these may seem simple, and they probably usually are, but they can become complex, as in the case I cited above from "Law and Order." These are just some simple examples: first, if I am present when you talk with your attorney, it is NOT private. I'm NOT your attorney; thus, I can repeat whatever was communicated during the conversation. Then again, how much do you want me to keep quiet? (Wink, wink) Second, if I were your attorney and you and I robbed the neighborhood bank, I'm part of the criminal act, communication is not privileged. Lastly, I get in front of a TV camera and tell all or part of what I talked about with my attorney in connection to the charges against me, then I forfeit my attorney-client privilege.
WORD HISTORY:
Client-The ultimate origins of this word are uncertain, although some believe the origins to be Indo European. It traces back to Latin "cluere," which meant "listen, hear, obey." From this came "cliens," which meant "a person who obeyed or followed someone." This gave the sense, "follow advice." The word was borrowed by English in the 1300s, but seems to have come into more common usage in the 1500s as "a patron/customer of an attorney," but that sense broadened shortly thereafter to "a customer, a patron, in general."
Look at the legal system. As the saying goes, "We all hate lawyers.....until WE need one!" One of the greatest television shows EVER, the original "Law and Order," showed the workings of the criminal justice system, with all its ah ... flaws? discrepancies? shortcomings? Give me a word here, PLEASE! In one of my favorite episodes, a woman is found dead in her apartment, but some blood from a relative is found there too. After much investigation, the police find out the blood belongs to a woman bank teller. She tells them the dead woman was her mother and that she spent time tracing who her mother was, after spending years in an orphanage. The mother, of very modest means, then told her the father had been a multimillionaire who recently passed away, leaving a fortune "to his children," the names of "his children" not being specified. The police arrest the teller for murder, and they bring in a bank officer who is the teller's boyfriend. Bank cameras showed the teller handing the bank officer a purse upon return from the mother's apartment. Police suspect the purse, not with the teller when she left the bank, contains a blouse covered with blood, as the teller had on a different blouse upon her return to the bank, a blouse several sizes too large for her, but the same size as her mother. After some tough questioning, the bank officer admits that he looked into the purse and that he did indeed see it had such a blouse in it. Meanwhile, down the hall, the police are questioning the woman who has her story down pat. After some tough questioning, she tells them she wants her lawyer. When they ask for a phone number, she tells them they have him down the hall. The boyfriend then tells the police he is the woman's attorney.
The show then shifted to the legal wrangling. The teller hires a criminal defense attorney who goes before a judge arguing that anything the boyfriend bank officer/lawyer told the police was protected by attorney client privilege. The guy had not paid his annual dues to the Bar Association for a few years, but the new attorney loans him the money to bring his dues up to date. The judge rules that as long as the accused woman believed the boyfriend to be her lawyer, that is what counts, and all of his admissions cannot be used against her. It turned out, the boyfriend had been representing the teller in pursuing a claim for part of the dead millionaire's estate.
Okay, what do we have here? "Attorney-client privilege" is an important part of our judicial system. We have a right to consult with an attorney, privately, and to keep those consultations private, under most circumstances.* An attorney of any type, not just a defense attorney, is supposed to defend their client's interest to the utmost. In criminal cases, the prosecution tries to their utmost to convict the person charged with a particular crime. In the television episode covered above, the judge knows the woman is likely guilty from the boyfriend's admissions, but because he had been representing the teller and because the client saw him as her attorney, the judge threw out the evidence. You may not like that evidence against an apparently guilty person is tossed, but that's how it works. We have protections and those protections were put into law to guard against the "state" from being able to do anything and everything to send someone to prison. Remember, there are still countries where whatever the "state" says, goes! Innocent though a person may be, they go to prison. Our system isn't perfect, and innocent people do get convicted, but it is fairly rare. The basic idea of our system is it is better to let a guilty person get off, than to convict an innocent person.
There is always public opinion in high profile cases, but even more importantly there are the feelings of the victim's survivors. In the above television case, what if you were the murdered woman's relative? Would you shout "Yippee! The Constitution works?" My guess is, no, you would likely be furious with the judge for tossing evidence against the apparent killer of your relative. That's just human nature. Depending upon the ultimate outcome of the trial, you "might" see the constitutional issue involved as time passed. In the above case, there is strong evidence to believe the woman is guilty, but let's say evidence tossed by a judge in another case were not as damning. Relatives of the victim are still likely to scream "Foul!" What if, in such a case, the person were truly not guilty? As victims, or relatives/friends of victims, we usually want revenge, and again, like it, not like it, that's a part of human nature. We want someone to pay for the crime. The judicial system is not supposed to be swayed by such things, but it is only supposed to be concerned with the law, no matter who it helps or hurts, but we all have feelings, and enforcement of our laws is certainly subject to those feelings. So under our system, some guilty people go free; probably far more than we'd like, while some innocent people pay a price; probably not many, but how about if YOU were going to prison for something you did not do? Would you be singing the praises of the law?
* There are exceptions, such as if someone else is present during consultations, or if the attorney is in any way connected to the crime being charged, or if the person charged waives his/her right to the privilege. What do these mean? As is always the case, these may seem simple, and they probably usually are, but they can become complex, as in the case I cited above from "Law and Order." These are just some simple examples: first, if I am present when you talk with your attorney, it is NOT private. I'm NOT your attorney; thus, I can repeat whatever was communicated during the conversation. Then again, how much do you want me to keep quiet? (Wink, wink) Second, if I were your attorney and you and I robbed the neighborhood bank, I'm part of the criminal act, communication is not privileged. Lastly, I get in front of a TV camera and tell all or part of what I talked about with my attorney in connection to the charges against me, then I forfeit my attorney-client privilege.
WORD HISTORY:
Client-The ultimate origins of this word are uncertain, although some believe the origins to be Indo European. It traces back to Latin "cluere," which meant "listen, hear, obey." From this came "cliens," which meant "a person who obeyed or followed someone." This gave the sense, "follow advice." The word was borrowed by English in the 1300s, but seems to have come into more common usage in the 1500s as "a patron/customer of an attorney," but that sense broadened shortly thereafter to "a customer, a patron, in general."
Labels: attorney-client privilege, English, etymology, Latin, Law and Order, legal system, United States
posted by Randy at 11:31 AM
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