I just finished watching The Firm, a legal thriller based on a novel by Grisham. Watching it got me thinking about the legal system we in the western world currently have. The main theme in the movie is about acting withing law and trying to do right at the same time. Now I am not a lawyer, and have never read law in a university (meaning I might be quite wrong in my interpretations) but here are some thoughts on why our legal system works the way it does. There are some interesting things that exist for a reason.
One key idea in our legal system is that we do not know the truth of what happened at any particular time/place. That the police, or a judge, or anyone of us may be wrong about a person having committed a crime. We may be wrong even in cases which seem so very obvious. And that every person accused of a crime is entitled to a defence and that his guilt must be shown. One part of being entitled to a defence is that you may use professional legal councel, i.e. attorneys. And here we run to a set of problems.
If a person is entitled to a defence, is it better that he lies to his attorney, or tells the truth? Is it valuable for us to create a system where the client, the accused, benefits from telling the truth? That the attorney may trust that he has been told the truth?
If the answer is yes as western society currently assumes, then we should not allow the attorney to use the information he received against his client. In other words, if the client confesses a crime to his attorney, he should not be allowed to use that against him in a room of court nor otherwise. So if the client confesses to a murder and tells that he is planning many more, the attorney should not use that information against him. Instead he should defend the client and try to get him out - to help him commit those crimes he is planning.
It doesn't sound very good if put that way, does it. So why do we have this system at all? It should not exist to protect the guilty - and it does not. It protects the innocent, because then the attorneys should be able to trust that they get right information from their clients even when the client claims to be not guilty and especially when the client is guilty of a smaller crime, but not the claimed.
In essence, the used method is a truth revealing mechanism. It does not pay off for a criminal to lie to his lawyer and thus lawyers should be able to trust what they hear from their clients. However, it probably does not work quite this well in practice, since the accused might not trust the lawyers. And this is where the punishments for telling the information around come up. Their purpose is to increase trust that the accused can have for their attorneys.
Getting back to the question of a murderer in a trial planning more killings. It still does not seem right to me that a person who did not know that this person was the killer and plans more should help him do that. But if he does not, he is helping break apart the system that makes it possible for attorneys to trust their clients.
No easy answers from me to this problem. Some interesting questions: Can we create a system where we can create trust between the attorney and client while not requiring attorneys to help their clients do possibly evil things? Is it a moral hazard for a people to work within such conditions - to see evil being done and possibly helping evil people to get away with it. And if it is, what can we do about it?
I'm quite certain that none of these questions are new. Probably many students and scholars of law have wondered upon these ideas. Possibly there are some ideas within the system of law that alleviates the problems. Still it makes an interesting problem to ponder on.
Good-bye soccer moms? (and dads)
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