As the law is in the business of making decisions on how to provide justice and protect the rights of those who have the misfortune to be their clients, a common approach to a legal matter, such as criminal legal proceedings, is to use the legal system to attempt to put the client on trial. It is often this assumption that leads to a perception that the client will ultimately “win.” While the client may ultimately win, this approach does not reflect the best way to approach the legal system.
The most fundamental due process rights of the defendant are those of a client. It is the client’s right to discover the charges against him and then to ask for a hearing on the charges. It is the client’s right to confront and cross-examine the prosecution and to be heard by the judge. It is the client’s right to know that the lawyer he chose is not only competent but has taken some particular steps to make sure the accused will be proven innocent.
No system of justice allows the client to be taken by surprise by the information that he learns in the course of the hearing. This is not to say that the client can be physically intimidated by the prosecution. Quite the contrary, the prosecution in a criminal case must ensure that the client is heard, but that the client cannot know that the prosecution is pursuing a fact so significant as the client’s guilt.
Clients must be provided an opportunity to make a fair decision about the charges against him. To avoid the imposition of extrajudicial penalties like fine, imprisonment, deportation, seizure of the property, or other extreme measures by which the legal system interferes with the rights of the accused, the system must provide the accused the right to confront the charges and to be heard by the judge. The “best approach” to a legal matter should be one that emphasizes the ability of the system to provide justice to the client and minimizes the potential for undue delay of the process.
The “best approach” to a legal matter must also ensure that the legal system cannot be used as a personal or monetary “purchase” by a client against a defendant. In effect, a system of justice which permits the prosecution to use “evidence” against the client would set a dangerous precedent: the prosecutor would be able to prosecute the client without any legal interest in doing so.
In the United States, there is, in effect, a double standard in the use of the law: the criminal system not only allows the prosecution to pursue a fact of the client’s guilt, but also permits the defense to pursue a fact of the client’s innocence. The rule in the United States is that the client has the right to present the case to the courts and to the prosecutor. The rule in the United States is that the client has the right to be represented by an attorney who is competent and professional.
All of these procedural norms are generally the product of legal educators who have striven to ensure that the system is used in a way that serves the client’s rights. Unfortunately, such hard-won norms are not always the product of the finest legal minds. Sometimes, it is the influence of other professionals with a vested interest in the outcome of the case that makes legal systems such as our own the way they are.