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The Adversary System Essay

1182 words - 5 pages

The "adversary system" is the fundamental concept behind American jurisprudence. It is assumed by our system that when you have 2 people on opposite sides who are trying to win, the party that has the truth on its side will ultimately prevail. Of course, as we all know, it doesn't always work that way; but that's our system.

Many Continental European systems use the "civil law" method. Under that system, all the lawyers in the case are responsible to help in the "search for the truth." If one lawyer has information that would help the other side or comes to agree with the other side's view, he or she has the right and/or duty to say so. Which system do you think is more effective and ...view middle of the document...

S.--our judges are appointed. Moving to a civil law system would require a complete overhaul of the way we train and appoint judges.

Find at least one case in which the limits of the adversary system were discussed or tested. The subject matter of the case itself can be anything, but the focus should be whether an attorney or firm's responsibility to a client or court outweighs some other "greater" or "moral" responsibility. For this case, please briefly discuss the ethical issue and how the court resolved it.

McClure v. Thompson, 323 F.3d 1233 (9th Cir. Or. 2003)

In McClure, the petitioner wanted habeas corpus relief after being convicted for three aggravated murders. He claimed ineffective assistance of counsel and that his original defense attorney improperly disclosed the locations of the bodies of two children whom he was eventually convicted of killing.

The United States District Court for the District of Oregon denied the petition and petitioner appealed. Although the appellate court held that petitioner's consent was not fully informed, the disclosure was nevertheless proper because it was necessary to prevent further criminal acts. The attorney believed that the children could have been alive based on petitioner's statement that "Jesus saved the children." The attorney believed he was preventing two murders. Although this statement was vague, the appellate court deferred to the district court's determination that petitioner manipulated the facts, and that when the attorney informed petitioner that he had an obligation to disclose the children's whereabouts if there was a chance they were alive, petitioner did not tell him they were dead. The district court also found that the attorney reasonably investigated whether the children were alive under extremely difficult circumstances. Finally, the appellate court rejected the argument that the attorney had a conflict of interest in that he was more concerned for the children than his client's interests. The attorney repeatedly referred to his concern that petitioner's kidnapping charges could have become murder charges if the children were allowed to die.

In McClure, the appellate court affirmed the decision of the district court.


Nix v. Whiteside, 475 U.S. 157 (U.S. 1986)

In Nix, the accused, who was charged with murder, repeatedly told his attorney that, although he had not actually...

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