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Trial By Combat, American Style


The United States inherited British Common Law at its founding. British Common Law is based on what is known as the Adversarial System. There is some speculation that the system arose in the Middle Ages out of the system of trial by combat. In that system, two adversaries battle each other; the one who survives wins. In the case of a female adversary, she would be allowed to choose a champion to fight for her. As jurisprudence moved away from physical combat, the process became a contest between two lawyers. The difference between the physical combat and the courtroom is that in physical combat, whoever survives wins, while in a courtroom trial the winner is decided by a theoretically impartial judge and jury.

The Adversarial System has application beyond the legal system. “Trial by physical battle is a type of adversarial system, as are formal debate, presidential elections, football games, and a host of similar events. What all of these events have in common is that they are contests that lead to decisions.”[1] It is so fundamental to our culture that we use this system in all of our social decision making.

We take for granted that this system will produce truth and yield justice. In theory, impartial judges and jurors will be able to weigh the extreme arguments of the advocates and tell which side is telling the truth. There are those who argue this provides the most certain method of determining the truth, and there can be little argument that, when the advocates are honest and the judge and jury properly educated and attentive, the system works more often than not. But, of course, therein lies the rub. For in our social discourse the advocates are often not honest and the judge and jury are woefully ignorant.

It is an inherent flaw in the system. One author describes some of the flaws with the system:

Those who are opposed to this system point out that this is a system of procedural justice and not substantive justice. Whereas substantive due process is a real and tangible justice, procedural due process only goes through the motions of what looks like justice. Another criticism of the adversarial system is that a higher value is placed on winning, than finding the truth. Lawyers are more apt to hide the evidence that is not favorable to their side regardless of whether it would prove the innocence or guilt of the person on trial. Another criticism is that while we all have the right to be heard in a court of law in front of a neutral judge and an impartial jury, we apparently do not have the right to representation that is equal. The more money we have, the better the attorney we can hire, and thus the better our chances are of winning. Some even feel that too many poor and minorities are in prison and on death row because of this system.

Supreme Court Justice Ruth Ginsburg pointed out “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”[2]

All three of these arguments point to real dangers or impediments to finding truth and justice, but the one that is the most damning for our social discourse is the second. Because advocates in social debate unabashedly do exactly what is described, deliberately hide or obfuscate evidence that is prejudicial to their position. This might not be a problem if people took the time (or had the time) to become properly educated about the issues, but that is true in almost no case. Because all sides in a debate can present compelling evidence, the public decide based on what seems to be the most popular with their friends, or aligns with what one already believes.[3]

Thomas Jefferson wrote, “An educated citizenry is a vital requisite for our survival as a free people.” It is precisely because of the adversarial system that this is so. When advocates are more interested in winning than in serving the truth, when every debate devolves into a confusing set of competing “truths”, and when those who must decide are too partisan to compromise or too distracted to care there is little hope for the survival of our democracy.

Perhaps there is a better way. Perhaps, rather than being dedicated to winning at any cost, we might be dedicated to truth at any cost. Truth and love are the same thing. And what we need is love.

[1] Gary Goodpaster, “On the Theory of American Adversary Criminal Trial,” Journal of Criminal Law and Criminology 78, no. 1 (Spring 1987): 118, accessed July 18, 2015, http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6549&context=jclc.

[2] Pat Schroeder, “The Adversarial Legal System: Is Justice Served?,” The Law Insider, September 30, 2010, accessed July 18, 2015, http://www.thelawinsider.com/insider-news/the-adversarial-legal-system-is-justice-served/.

[3] See Keith Cox, “What Can We Believe In?,” Dispatches From Exile, July 10, 2015, accessed July 18, 2015,http://dispatchesfromexile.com/2015/07/10/what-can-we-believe-in/. and Brandon Keim, “How People’s Political Passions Distort Their Sense of Reality,” Science (blog), Wired, November 19, 2014, accessed July 18, 2015, http://www.wired.com/2014/11/solutions-shape-factual-belief/.

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