He is a fairly nice guy, but I’m sure most people agree that the only person who comes across as a prick in the majority of your posts is your own sweet self.
The system requires that the defendant’s rights be protected, even if we know the defendant is guilty.[/quote]
It’s precisely that kind of embedded dishonesty which causes me to lose respect for the system.
[quote][quote=“Fortigurn”]I think it’s pretty close to this simple. Over the years an increasing number of activities which are still regarded as unethical are no longer regarded as illegal in Australia.
As a result of some study I understook for a lecture I gave on business ethics, I can say the same is the case for the US.[/quote]
If you don’t mind, I’d be interested in some examples.[/quote]
Sure:
[ul][li] Adultery is not illegal in Australia, but most people would consider it unethical.
[/li]
[li] In Victoria, it was discovered that the police speed cameras had been incorrectly calibrated. Speeding fines issued over a certain period of time were now suspect. Thousands of people applied to have their fines overturned and refunded to them, on the basis that they were wrongfully convicted.
But in addition to those who were wrongfully convicted, it was also legal for anyone else to apply to have their fine overturned and refunded, even if they had been rightfully convicted. I myself had picked up a speeding fine during this time, and knew full well that I was over the speed limit at the time.
Nevertheless, colleagues at my work urged me to take advantage of the fact that legally I was able to contest the fine and receive a refund as if I was innocent, even though I knew full well that I was guilty, and that the police would know that my speed was well over the known margin of error. Needless to say, I chose not to contest the fine, because I knew I was guilty, and it would have been dishonest for me to act as if I was innocent.
[/li]
[li] A legal case against a criminal who has been rightfully convicted of a crime can be overturned if his defence counsel detects a clerical error in the prosecuting case, or a procedural error in the police handling of the crime. This can be done regardless of whether or not the criminal even pleads guilty - the legal process is considered of greater importance than the ethical principle.[/li][/ul]
Here are some choice quotes I used in my lecture on business ethics earlier this year, which demonstrate the issue well, I believe. All emphasis mine:
[quote]
I do agree with this. In Australia, someone will take advantage of your scratching their bumper, in order to get you to replace the entire thing. It happened to me.
I ran into the back of another guy (part of a four car pileup), inflicting a small dent and scratches in his bumper. It could have been fixed with a sand and paintjob.
In contrast, his towball smashed my front right headlight and indicator, punched through my bumper (destroying it beyond repair), and bent a supporting frame so that my radiator fan was now in contact with the radiator itself.
I ended up paying $2,500 for the privilege of buying him a brand new back end. I didn’t have any money to do more for my car than have the headlight and indicator replaced.
He is a fairly nice guy, but I’m sure most people agree that the only person who comes across as a prick in the majority of your posts is your own sweet self.[/quote]
I am sincerely honored that you read the majority of my posts and have remembered them all.
Why do you think protecting the defendant’s rights is dishonest? Should the defendant not receive a fair trial?
Thanks very much for providing the list of examples. I’ll comment now on just one example, as it is illustrative of the problem I see with legislating on absolute moral grounds. You cited as an example the following:
Many people do consider adultery to be unethical. However, many people do not. What about cases where the husband and wife are swingers and they knowingly consent to swing with other people who also do so of their own volition and with the consent of their spouses? This too is adultery. Why should this activity be a matter for the state?
I agree that there are many types of behavior that are quite arguably “right” or “wrong”. But, what about activities that are not clearly right or wrong, or which are regarded differently by peoples of different cultural or religious backgrounds?
What were once vices are now virtues.
I would be interested to hear more of your observations of Taiwan’s legal system.
My impression (receiving end, not lawyering end) is that it is a lot more slapdash. A murder case (I’m fine now, thanks!) is conducted with all the solemnity and rigor of a U.S. traffic court.
As for lying, I think this is a cultural difference. Chinese lie more blatantly, to put it bluntly. We lie too, but consider it more scandalous and try our best to hide it. U.S. lawyers who lie in court are going out on a limb for their clients, who presumably make it worth their while.
I agree about the lying SJ. Sure people lie, cheat and steal in other countries. Sure we had Enron, etc. in the US. But I think what you said is true. In the few years I’ve been in Taiwan there must’ve been at least a dozen front page stories, probably many more, concerning outrageous lies told by or about the president, vice-president or various lawmakers, followed by defamation lawsuits. The lies are often totally absurd, as are the lawsuits that follow and the judges’ rulings (for instance the Annette Lu case in which the judge found no defamation but ordered them to apologize anyway). We all know George Bush and his cronies are habitual liars, but they’re so much more sly and clever about their lies, so that forumosans can argue ad nauseum about whether they really were lies or not. In Taiwan, lies are more commonly blatant and there seems to be little backlash when they are revealed to be false. It is a cultural difference and in business and the law it can eventually be remedied if police, prosecutors, lawyers and judges gradually learn that honesty and integrity should be the norm and violations will be punished not only with strict measures from the courts and other disciplinary bodies, but with disapproval and moral opprobrium from the professional community. It will take decades to make progress in that regard but I believe they are headed in the right direction.
Why do you think protecting the defendant’s rights is dishonest?[/quote]
I don’t believe that protecting the defendant’s rights is dishonest. But I don’t believe that the defendent should have the right to be defended in the knowledge of guilt. That’s dishonest.
Certainly they should. This definition of ‘fair’ should include honesty on both sides, not merely the side of the prosecution.
[quote]Thanks very much for providing the list of examples. I’ll comment now on just one example, as it is illustrative of the problem I see with legislating on absolute moral grounds. You cited as an example the following:
Many people do consider adultery to be unethical. However, many people do not. What about cases where the husband and wife are swingers and they knowingly consent to swing with other people who also do so of their own volition and with the consent of their spouses? This too is adultery. Why should this activity be a matter for the state?[/quote]
I don’t view that as adultery, because adultery involves a lack of consent on the behalf of the cuckold.
But should they be illegal? Our society says no.
In a democractic society you go with the majority - tough luck on those who feel otherwise. I’m a member of the minority myself, there are plenty of things which the law allows which I think shouldn’t be allowed. That’s just bad luck for me.
I don’t believe that protecting the defendant’s rights is dishonest. But I don’t believe that the defendent should have the right to be defended in the knowledge of guilt. That’s dishonest.[/quote]
But guilt isn’t always so easily determined. Many times even the guilty part is not qualified to say if he is guilty or not. I remember a case where a farmer ended the life of his terminally ill child who was in extreme pain. He definitely ended the life of his child. But was he guilty? Even he didn’t know. Well, you might say, some cases are clear-cut and some aren’t - bring in the defense for those cases that are borderline.
But who determines which cases are clear-cut? What’s the criteria?
Legal recourse, including the right to legal defense is a crucial element of a civilized society. Guilt should not be pre-supposed.
Fortigurn - There is a big difference between the law being silent in regards to an ethically ambiguous activity and the law actively seeking to punish those engaged in such activities.
A lot of people feel the same way as you, but thank god there are criminal defense lawyers who feel otherwise and US law states that everyone is entitled to a lawyer.
There are various reasons why even those who are guilty deserve a lawyer. First, the police often violate the law, conducting illegal searches and seizures, entrapment or illegal conduct to coerce confessions out of suspects. One purpose of a criminal defense attorney is to discover such illegal conduct by the police and attempt to get any evidence that results from such illegal tactics barred from the trial; therefore, the police will have greater incentive to follow the law in the future. If no one challenges shady police tactics they will violate citizens rights with impunity – and not just the rights of guilty people, but the rights of innocent people as well. Second, overzealous prosecutors will often charge a defendant with a more serious crime than was actually committed and the defense attorney can ensure that the defendant is only convicted of the crime actually committed, or in other cases the evidence may be uncertain and the prosecutor and defense counsel can work out a plea bargain that benefits all parties, the prosecutor, the defense, the judge and the public. In other cases, the prosecution’s witnesses may lie to get a conviction for more serious charges and the defense counsel can be alert for such shenanigans.
I have a friend who is a criminal defense lawyer and a lot people think he’s a jerk for representing rapists, thieves, child molesters and other scumbags, but they don’t understand: he’s not just representing those people, he’s defending their constitutional rights and holding the police, prosecutors and others accountable. It may sound corny, but unless someone performs that job, someday you may be surprised and dismayed to find how your constitutional rights have been eroded.
[quote=“Mother Theresa”]
I have a friend who is a criminal defense lawyer and a lot people think he’s a jerk for representing rapists, thieves, child molesters and other scumbags, but they don’t understand: he’s not just representing those people, he’s defending their constitutional rights and holding the police, prosecutors and others accountable. It may sound corny, but unless someone performs that job, someday you may be surprised and dismayed to find how your constitutional rights have been eroded.[/quote]
Out of curiosity, what would have been your defense strategy at the Nuremberg Trials?
law.umkc.edu/faculty/project … emberg.htm
www2.mnbar.org/benchandbar/2002/ … s-exam.htm
I don’t believe that protecting the defendant’s rights is dishonest. But I don’t believe that the defendent should have the right to be defended in the knowledge of guilt. That’s dishonest.[/quote]
But guilt isn’t always so easily determined.[/quote]
The example in question was one in which guilt had been determined.
I have never disagreed with this.
I have no idea, CS. I’m sure it would be very difficult (thanks for the links, they look interesting). I’m not sure I would want to handle the defense, just as I definitely would not want to represent rapists and child molesters. But it is an important job and I’m glad someone does it. I hope Saddam Hussein gets good legal representation and a fair trial (but I don’t think he will). And the fact that I wouldn’t want to perform that job doesn’t make me a hypocrite either. I’m glad there are plumbers in the world too, but I wouldn’t want to clean clogged toilets for a living either.
I agree. But that’s not what I’m discussing.
A lot of people feel the same way as you, but thank god there are criminal defense lawyers who feel otherwise and US law states that everyone is entitled to a lawyer.[/quote]
This is part of the embedded dishonestly in our society - that we have to pretend that certain people are innocent, even when they are known to be guilty.
And people will stand in front of others and defend them as innoncent when they know they are guilty.
And then we have to let them go free even if they have committed a crime.
Can you see why I consider this dishonest?
Firstly, the motive of the criminal defence attorny is to clear his client. It is not to act as a de facto watchdog on the police.
When a defence attorney uses evidence of police abuse in his case, it is not because he is interested in society or because he is upholding a certain ethical standard, it is because he is using it as a tool with which to defend his own client.
If we were really to rely on defence attorney’s to keep the police honest, we wouldn’t get very far - the attitude of a defence attorney to the police will depend entirely on whether or not they are of use to his case. If he has evidence of police corruption which will endanger his client, then is he really going to present it? I trow not.
Secondly, I have a problem with the argument which says ‘Well you’re more guilty than I am, so I can go free’.
Thirdly, we don’t need to rely on the dubious motives of criminal defence attorneys in order to moderate the police. We have other (more reliable), bodies for this.
As I’ve said, we don’t need defence attorneys for this purpose. This argument of yours has nothing to do with defence attorneys really.
This isn’t addressing the issue of whether a guilty party should be treated as an innocent party, and whether it is ethical to represent a guilty party as an innocent party.
This argument argues that one important role of a defence attorney is to ensure that his client - even if guilty - is not overprosecuted or unjustly represented by the prosecuting case.
I agree with this, but it is not relevant to the issue at hand.
I have a problem with a society which tells people that pretending you are innocent when you are guilty is a ‘constitutional right’. I have a problem with the idea that lying in this way should be a constitutional right.
Since I’ve already discussed the accountability issue (the role of a defence attorney is not to hold the police and prosecutors accountable - there are other bodies and mechanisms for this), I won’t comment on it further.
There are other bodies which perform this role in society far more effectively, honestly, and with greater accountability than defence attorneys.
They do it daily. And I only have to pay them with my taxes, I don’t have to fork out thousands upon thousands of dollars.
[quote=“Comrade Stalin”]Out of curiosity, what would have been your defense strategy at the Nuremberg Trials?
law.umkc.edu/faculty/project … emberg.htm
www2.mnbar.org/benchandbar/2002/ … s-exam.htm[/quote]
Society tells me that if lying would have benefited their case, then I should lie. I would be upholding their ‘constitutional right’ to represent themselves as innocent when they were in reality guilty.