The Instigator
larztheloser
Pro (for)
Losing
3 Points
The Contender
TheFreeThinker
Con (against)
Winning
6 Points

That whatever the prosecution spends in a criminal case, the defence should be entitled to

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Voting Style: Open Point System: 7 Point
Started: 5/24/2011 Category: Society
Updated: 6 years ago Status: Voting Period
Viewed: 1,789 times Debate No: 16688
Debate Rounds (3)
Comments (1)
Votes (2)

 

larztheloser

Pro

Greetings and thanks to whoever accepts this!

RULES
This debate shall be three rounds. Please do not accept if you cannot post your argument in each round.
No new lines of argumentation may be introduced in the third round.
Neither debater may post videos.
If you want clarifications, post in the comments BEFORE accepting.

RESOLUTION NOTES
First and foremost, I'm going to be running largely New Zealand examples. However, I think it is safe to apply this debate to an international context, so don't be put off.

The resolution is that the defense should be entitled to whatever money the prosecution spends in criminal cases. For the purposes of this debate, I propose that this entitlement would come through the legal aid system that exists in many countries. For instance, if a prosecution lawyer is paid $4000 for a case, a legal aid lawyer's client should be eligable for at least $4000 in legal aid. The resolution does not extend to civil cases.

"Legal aid" takes different forms in different countries, but generally it has two key features. First, it is only available to those who really could not otherwise afford the cost of their lawyer themselves. Second, it almost always needs to be paid back with interest - it is not a grant, but a loan.

My burden of proof in this debate is to show why it is a good thing that the defence is paid at least as much as the prosecution in a criminal trial. My opponent needs to show why my reasoning is not correct.

CONTEXT
In New Zealand, on average, legal aid lawyers earn 4.6 times less per case than prosecution lawyers in criminal trials. This is despite the fact that they need to do more work because prosecutors have all their work done for them by the police. The maximum a legal aid lawyer can earn in a year is almost half of what the same lawyers earn ON AVERAGE in private practice. Therefore, few good lawyers go in to doing legal aid work because the pay is so bad. No suprise, perhaps, that success rates for poor people in court are much lower than for wealthy or middle-class people.

PROBLEM -> SOLUTION
In western legal frameworks there is a notion known as "due process." Due process means that a person's life, property and liberty cannot be removed without appropriate legal safeguards. To ensure that these legal safeguards are fairly implemented, there must be a fair trial. If we are to assume a due process jurisdiction, therefore, the rule of law and all of the civil duties it encompasses are predicated upon an individual's access to fair trials.

There is nothing fair about one party being disadvantaged in a trial because of their financial position. Ideally, both lawyers in a trial should be of the same quality and level of experience. In order to encourage this, it would seem that both positions - prosecution and legal aid - should be paid equally. In this way, the most vulnerable in our society will have access to lawyers who are paid industry-standard rates. As the prosecution gets pay rises, so do legal aid lawyers.

I have many rebuttals prepared, but I'd rather wait until I hear my opponent's line of attack.
TheFreeThinker

Con

I gladly accept this debate.

I am not too familiar with the legal system in New Zealand, but I assume that over there, as well as here in the United States, the cost of both public defense and prosecution is carried by the taxpayer.

In a criminal case, the interest of the people are represented by the prosecution, therefore it's understandable that the prosecution, on average, makes more than a legal aid lawyer.

In the United States, and I think in New Zealand as well since you guys have common law as well, before a suspect can be put on trial a Grand Jury has to establish if there is probable cause, which reduces the risk of putting an innocent person on trial in the first place.

The right to due process means being able to receive a fair, timely trial, which is achieved through the process of jury selection and in some case transfer of the case to a different court.

I would also like to point out that your assumption that the prosecution has most of its job done by the police seems to me invalid.
Our legal system is based on the assumption that a suspect is to be regarded as innocent until proven guilty, which means that since the burden of proof is on the prosecution, the prosecution might need more resources during the process, in order to examine all the evidence.

Furthermore, I don't believe that more money necessarily means a better defense and I would like you to show that in criminal cases, it does.
Debate Round No. 1
larztheloser

Pro

I'd like to thank my opponent for accepting this debate with such gladness. His presumptions about the legal system in New Zealand are almost all correct - where they are not, I have indicated this.

People's Interests
My opponent asserts that the interests of the people are those of the prosecution. While it is true that the general public support justice, the public also strongly oppose it when people are wrongly sent to prison - if nothing else, it means they have to spend money on two trials, in addition to obvious moral problems. Therefore the public interest is really in making the trial as fair as possible. Therefore the people's interests lie just as much with both lawyers.
However, even if it was the will of the people to have the prosecution win, that doesn't mean they should. The principle of due process is not predicated on public support, because we recognize that the public is not impartial. That's why we don't go around lynching loners on the grounds that they don't have any supporters and therefore have no civil rights. That kind of logic is barbaric and not something we should support through the judicial process.

Probable Cause
To be put on trial, one does not need to have "probably" committed a crime - after all, the role of the jury in a criminal case is to establish that a crime was probably committed, that is, beyond reasonable doubt. In the US you have Grand Jury trials (all the other common law jurisdictions have abandoned them, most in favor of a judge reviewing the evidence). These exist to establish whether there is a prima face case, not a probable case. To establish a prima face case, a prosecutor needs have only one scrap of evidence. The trouble is, without the grand jury, a prosecutor without evidence still wouldn't get his case through the courts. Therefore the grand jury is pointless. Therefore it does not reduce the chance of an innocent person being put on trial.
Even if it did, however, this objection is a bit of a non-issue because defense lawyers don't go to grand jury hearings (and if they did they'd be arrested for contempt of court). This debate is about whether we should equally pay lawyers at a criminal trial, not the grand jury trial that precedes it.

Juries/Court selection gives due process
That system ensures that the decision-makers are fairly selected. It does not ensure that the lawyers are equally well able to argue their case. That is also important to due process because financial circumstance is, as I stated last round, an unfair advantage. Without engaging with my analysis his counter-narrative cannot stand.

Prosecution needs more resources to present evidence
The trouble with this line of reasoning is that the police give the prosecution whatever evidence it needs. The prosecution has direct and free access to the single largest, richest and most powerful private investigation organisation in the world. Contrast that to the defense, who don't have access to any of the evidence. To make the trial fair, they need to independently work out what happened for themselves - a process that is not only costly, but also very time-consuming.
Even if the prosecution did need to garner up more resources (let us presume the police force disappeared) then the prosecution would not even be going to trial unless they already had enough evidence to begin with. Prosecuting lawyers do not do investigating like defense lawyers do. They have their evidence given to them. That's why you never see the folks from CSI wearing legal robes and silly wigs.

Does more money mean a better defense?
It means a better lawyer. As I stated last round, the good lawyers go where they can earn 4.6 times more doing less work. This begs the question of whether lawyers are in fact of different levels of quality. I contend that they are because some lawyers are more successful than others - be it due to experience or flair. My explanation is consistent with observable reality - most legal aid lawyers are law school grads or lawyers with very low success rates. Success rates for legal aid trials are far below what they are for non-legal aid trials. This kind of evidence is too insurmountable for you to ignore.
TheFreeThinker

Con

My opponent opens the second round by misquoting my first argument.

In the first round I clearly state that "the interest of the people are represented by the prosecution".
A criminal case, at least here in the US, is considered a crime against the state. [1] Therefore a public prosecutor represents the interests of the people of the State.

This is of course not the same as saying that the interest of the people is to have the prosecution winning the case.

My opponent is clearly well informed and versed in legal matters, therefore I assume that he is aware of the difference between my assertion that the prosecutor is representing the interest of the people and the false statement that the interest of the people is a victory of the prosecution and consider his argumentation a blatant attempt to twist my statement.

In his next statement, my opponent opines that Grand Juries are "pointless".

I strongly disagree with this opinion. During a Grand Jury trial the Judge can rule on weather or not different pieces of evidence can be used or not by both the prosecution and the defense. It is then the job of the Grand Jury to rule if the presumptive evidence is indeed reliable evidence.
The Grand Jury does reduce the chance of an innocent person being put on trial because the alleged evidence is analyzed before the trial and deemed valid or not.

Furthermore, at least in the US, a defense lawyer is very well allowed to attend the Grand Jury trial. I have no idea if this is not the case in New Zealand, but I really cannot imagine that it is and would like my opponent to provide a source for his statement that a defense lawyer that does not attend a Grand Jury trial would be arrested for contempt of court.

My opponent goes on arguing that a trial in which two lawyers don't have the same ability to argue does not guarantee due process.

This assumption is in my opinion plain wrong. First of all, there is no viable way to rank the ability of lawyers and therefore make sure that both the defense and the prosecution have equally good, or for that matter, bad, lawyers.
Even if the lawyers were selected based on their percentage of won and lost cases, this would not represent their ability to argue a case since different cases are argued with different juries, situations and evidence.

A due process is not guaranteed by the ability of the lawyers, but by the legal principle that the government must respect all of the legal rights that are owed to a person according to the law.
This means that the prosecution cannot use evidence that been acquired illegally or in any other way, shape of form break the law in the attempt to convict a citizen.

My opponent argues that a person's financial circumstances influence the outcome of a trial at priori and that this fact puts less wealthy people at disadvantage. I do not agree with this point.
Even though it is true that a rich person can afford to hire a lawyer that charges more and is allegedly better, the Jury decides cases based on the rule of law and on the evidence that is brought forward and a person is convicted when he or she is proven guilty beyond reasonable doubt.

In order to validate his point that a more expensive lawyer automatically means greater chances of winning the case my opponent needs to provide evidence that clearly shows beyond statistical anomaly that trials that have been argued and lost by less expansive lawyers have been then won in appeal by more expansive ones.

Without this proof, my opponent's argument remains an assumption.


In his next point, my opponent states that "the police give the prosecution whatever evidence it needs."

This argument is false and misleading. The police doesn't give the prosecution whatever evidence it needs, but whatever evidence it has. The police cannot just make evidence up to aid the prosecution and evidence that has been gained unlawfully cannot be used in a court of law.
My opponent states that "The prosecution has direct and free access to the single largest, richest and most powerful private investigation organisation in the world."

I have no idea what my opponent means with this sentence. Is it the CIA? MI6? The BND?
This statement has no factual value whatsoever.

Furthermore, my opponent states that "the defense, who don't have access to any of the evidence. To make the trial fair, they need to independently work out what happened for themselves - a process that is not only costly, but also very time-consuming."

This statement is absolutely false and shows a high degree of ignorance of criminal law on the side of my opponent.
By law, at least in the US, "In a criminal trial the prosecution is obliged to disclose to the defence, in advance of the trial, all relevant evidence which it has." [2]

My opponent seems to believe that "justice" means having both the defense and the prosecution having to invest the same amount of work to gather evidence and also have the same amount of evidence.

I believe that justice means convicting somebody who has been proven to be guilty beyond reasonable doubt and absolving somebody who could not be proven guilty.

Since my opponent has quoted CSI, I recommend him to gather more experience in a court of law instead of in front of a television set before trying to revolutionize the judicial system.

In his closing statement my opponent argues that more money means "a better lawyer".
I argue that more money means a more expansive lawyer.
If my opponent wants to prove that more expansive lawyers are better lawyers he needs to bring forth proof of it.

Furthermore, lawyers are not required to accept a case, therefore a high percentage of cases won does not necessarily say more about a lawyer's ability to argue the case than about his ability to accept easy to win cases.

The central argument in this debate is that public defense is paid with taxpayers' money and that for a trial to be fair a defendant doesn't need an expansive lawyer but a lawyer who is qualified.
Since no person can become a public defendant without passing the bar exam, every public defendant meets the qualifications.

Giving the defense the same amount of money that is spent by the prosecution is a waste of taxpayers' money and would not guarantee fairer trials.

[1] http://criminal.findlaw.com...
[2] http://www.citizensinformation.ie...
Debate Round No. 2
larztheloser

Pro

I'd like to thank my opponent for continuing his case. I would like to begin by issuing a friendly reminder that no new lines of argumentation may be opened in this round.

In my view this debate comes down to three key points of clash:
1) Whether the grand jury model adopted by 22 of the US states is an effective counter model.
2) Whether non-legal aid lawyers can in fact be shown to be better.
3) Whether legal aid lawyers have a more difficult job

Each of these issues I shall address in detail below, and discuss why I have won each of them.

1. Grand Juries
First, common law countries generally don't have grand juries like my opponent asserts multiple times. Grand juries have been abolished in all common law jurisdictions bar the United States, and even there many states opt not to use Grand Juries.
The whole point of the judicial system is to weigh up conflicting evidence and, in criminal trials, to determine whether there is any reasonable doubt, on the basis of the evidence, as to whether a crime has been committed. Grand juries are meant to streamline this process by checking whether the prosecution actually has any evidence. It does not check whether the defense has evidence to refute the prosecution's claim. If a defense lawyer was present with the grand jury, the grand jury is considered unable to decide whether there is a prima face case, because the defense lawyer will naturally be there for the purpose of making counter-arguments. Grand juries are not to discuss counter-arguments - that is for the courts to do - but rather to check whether there is evidence. That is the case, even in the US. From the US LawInfo site: "Neither the accused nor their attorneys are present and are generally not even allowed in a grand jury proceeding. A criminal defense attorney is also not allowed to provide assistance or representation for the accused in a grand jury indictment."
My opponent states that Grand Juries reduce the risk of an innocent person being put on trial because it creates an extra layer of scrutiny for the prosecution's evidence. However, this is not the case. A grand jury only looks at one side of the picture, and for the trial to be truly fair, and have due process, both sides of the story need to be looked at. That is why we have trials, and that is why even if the grand jury is heavily biased, the trial can still be fair because the court hearing that follows it is fair. That's why I said Grand Juries make no difference in the context of this present debate.
The problem is with the quality of representation at the trial itself, not the fact that the trial was brought in the first place. The problem is therefore not solved by implementing a grand jury system, and is not solved in states that have grand juries. Therefore, I should win this point.

2. Other lawyers better due to higher pay
My opponent claims there is no link between pay and quality of representation. By his narrative, all lawyers provide an equal standard of representation. That's false. Some do better at law school than others. Some have many years of experience behind them. Some have experience dealing with particular types of cases or courts. Some have done honors or even higher legal qualifications. These lawyers will be superior. My argument is that superior lawyers will be able to have a competitive advantage when high-paying law firms seek to hire good lawyers. Therefore these better lawyers will not be available for legal aid law work.
My opponent's only engagement with this analysis, which I brought in round one, was that I had not shown an empirical link between pay and experience. I do not need to show this. What I have shown is that a better lawyer is more likely to get a better job, and I have stated reasons why better lawyers exist. One proof is enough to bring a claim, not two proofs as my opponent attests. Therefore, I should win this point. However, if you need empirical evidence, how about the well-publicized American trials of OJ Simpson or Micheal Jackson? Ever wondered why billionaires almost never go to jail? Ever wondered why 70% of the prisoners in your (predominantly white) country are non-white? It is because white people are, on average, wealthier? Is it because the rich can afford justice? That's what I think.
Just as in all other areas of life, in law you get what you pay for. If you pay for a good lawyer, you will get good representation. That's been my case from the beginning. I'd like to hear from my opponent what he thinks the scales of Lady Justice were actually weighing. Until then, I should win this point.

3. Job difficulty
My opponent notes that "The police doesn't give the prosecution whatever evidence it needs, but whatever evidence it has." I believe that was plagiarized from Captain Obvious. It's the police's job in society to investigate crime. The process of investigation involves finding evidence. The purpose of finding evidence is to get a conviction. So the evidence the police finds, and therefore has, will be that which gets a conviction for whoever the police believe, based on the evidence, did the crime. This evidence is given to the defense, sure ... but what the defense needs is not evidence showing that the crime was done, but rather evidence that the crime was not done.
Let me give an example. In the famous trial of David Cullen Bain, one of the most notorious murder cases in New Zealand, the police gathered information which showed David was guilty. This led to David's conviction in 1994. David's defense team believed his innocence, however, and gathered information showing David's father was guilty. This led to his acquittal, on retrial, in 2009. In both cases the defense team representing Bain was more or less the same. This shows that the police didn't gather information to help the defense. They gathered information to get a conviction. Now, it happens that Bain was wealthy enough to afford a 15-year investigation team. Somebody relying on legal aid doesn't get that privilege. The defense must assemble a case, often having to go on the fact situation the police have given them because they are unable to investigate themselves.
You don't go to court to get justice, but rather to outmaneuver the other side's arguments. One side is inherently advantaged because they have an argument already set up for them by the police. All they need to do is apply the law. The defense must either argue on a fine point of law, which is dangerous, or better still convince the judge that the crime was not committed. The second option cannot be taken without some independent investigation, however - investigation which the prosecution doesn't need to do.
Since the defense has to investigate as well as do their ordinary work, they have a harder job than prosecutors. Therefore, I should win this point too.

I would like to thank my opponent for participating in this debate with me. It certainly has been an excellent discussion. If you believe in fair justice, if you believe in equal representation, if you believe loaning money to help your struggling neighbor is an ethical investment, if you believe money spent in ensuring due process is money well spent, if you believe in equal opportunity even in the courtroom, if you take a stand against miscarriage of justice, please show your support by voting pro. Thank you very much.
TheFreeThinker

Con

My opponent opens the last round of the debate by stating that:

"this debate comes down to three key points of clash:
1) Whether the grand jury model adopted by 22 of the US states is an effective counter model.
2) Whether non-legal aid lawyers can in fact be shown to be better.
3) Whether legal aid lawyers have a more difficult job"

I don't agree with this statement. Weather grand juries are effective or not is not part of the debate, the same way that we are not debating about the ability of lawyers or how hard the job of the defense is compared to the job of the prosecution.

We are debating about money! More precisely on how public money should be spent.

I am of the opinion that public defenders should not be entitled to the same amount of money of public defenders for a very simple reason: The public prosecutor is working in the interest of the public, since criminal cases are cases against the state, weather a legal aid lawyer is representing a private person who is responsible for his own interests and who he will be defending even if he knows that the person is guilty.

The public also realizes that in some cases, when a person in not able to afford a defense or is unable to defend himself in court, there is the need of a public defender.
However, it would be unreasonable to provide extra money for the defense of a person who is on trial because first of all the burden of proof is on the prosecution, which means it is the prosecutor who has to show beyond reasonable doubt that the person on trial is guilty, and more expansive lawyer cannot change the evidence in a case.
Also, most criminal cases don't even go to trial 90-95%, but are settled with plea bargains, which means that the great majority of people who end up in front of the judge are guilty, so paying more to the defense would be a waste in at least 90% of the cases. [1]


In his argument about grand juries my opponent states that "A grand jury only looks at one side of the picture, and for the trial to be truly fair, and have due process, both sides of the story need to be looked at."

This is of course non sensical, because the grand jury does not rule on weather the person is guilty or not, but on weather there is enough evidence for a trial. The "other side of the story will be brought up during the trial itself.
The job of the grand jury is to make sure that the judicial process will not be misused. If for example I accuse my neighbor of stealing my car just to get back at him for being loud last night, the jury will look for evidence for a trial, and will deny one if there is no evidence for it.

In his next argument, my opponent argues that even if he is not able to show empirical evidence for a relation between better lawyers and pay, it does not matter because it is obvious that there are lawyers with different skills and experience.

He argues further that allocating the same resources to the public defense will provide a competitive advantage and lure better lawyers to take up jobs as public defenders.
I highly doubt this point. Lawyers who are making more money are highly likable to be working for private companies and be specialized in civil law which is highly lucrative, therefore offering more money for the public defense would not improve the quality of the lawyers but only give more money to the very same lawyers that my opponent argues are not qualified in the first place.

My opponent argues that the trials of OJ Simpson and Michael Jackson ended up with the juries finding them innocent because of their wealth. I dispute this point, as well as the idea that "billionaires almost never go to jail".

Bernie Madoff is in Jail, so are Kenneth Lay and Tray Titus.

If you wonder why a lot of inmates in the US are non-white, by the way funny that you mentioned OJ and MJ, since they both got absolved and they were both african-americans, is indeed because white people are on average wealthier.

However you make the assumption that they are in jail because their lawyers weren't paid well enough by the public ( that's the people who work and don't commit crimes) to argue in their defense, weather the truth is that poorer people are prone to commit more crimes and get caught more often.

In his closing argument my opponent writes that "what the defense needs is not evidence showing that the crime was done, but rather evidence that the crime was not done."
This can of course be found only if the person who is on trial is indeed innocent. If a crime was committed there won't be any and therefore paying more to a defense lawyer to find something that is not there, will not help anybody but hurt the public.

In his example about a New Zealand case, my opponent argues that "the police didn't gather information to help the defense. They gathered information to get a conviction."

This example is again, nonsensical. The police is not involved in the trial, and they gather evidence before the trial. It is their job to gather evidence for a conviction, because somebody must have committed the crime.

He furthermore writes that "You don't go to court to get justice, but rather to outmaneuver the other side's arguments. One side is inherently advantaged because they have an argument already set up for them by the police. All they need to do is apply the law."

This comment somehow shows a deep lack of understanding of the criminal process. Even though it is the job of a lawyer to present an argumentation that has to be convincing, this arguments are based on evidence that links a crime with its perpetrator.

They don't just need to apply the law, they need to show beyond reasonable doubt that the defendant is guilty.
And again, the prosecution doesn't have "an argument already set up for them by the police". They have evidence of a crime.

The burden of proof is still on the prosecution and even in cases where there is a strong reason to believe that the defendant has committed the crime he must be let go because of lack of evidence.

My opponent says that the defense has to investigate as well as do their ordinary work, they have a harder job than prosecutors.

This point is somehow an oxymoron because if the defendant is innocent and honest with his lawyer, the lawyer will know where the defendant was at the time of the crime and be able to provide an alibi or an explanation for it. Investigation is needed when trying to find out something that is not known. A defendant always knows what he did and so should his lawyer.

In his final point my opponent takes the stand that allocating the same money to the defense is necessary if you "believe in fair justice, if you believe in equal representation, if you believe loaning money to help your struggling neighbor is an ethical investment,"

This is of course a populistic attempt to influence the voters into believing that this step is necessary to ensure all the above mentioned, which I showed it is not, and would on the contrary be just a huge waste of taxpayers' money.

A due process is guaranteed by the courts and by the law, which holds the prosecution and the defense accountable to the same rules, not by the amount of money a lawyer makes.


Since the burden of proof is on the prosecution and since the prosecution is representing the interest of the people, it is logical that they need more resources.
On the other hand, giving the same amount of money to the public defense would not only not prevent innocent people to be sentenced wrongly.



Vote Con!
[1]http://www.criminal-law-lawyer-source.com...



Debate Round No. 3
1 comment has been posted on this debate.
Posted by Cliff.Stamp 6 years ago
Cliff.Stamp
Excellent topic larz.
2 votes have been placed for this debate. Showing 1 through 2 records.
Vote Placed by Ore_Ele 6 years ago
Ore_Ele
larztheloserTheFreeThinkerTied
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Total points awarded:13 
Reasons for voting decision: Free Thinker's best argument came at the end of the debate when he said that most cases end in a plea bargin, thus, most cases are found guilty, and so extra tax dollars should not be spent on the defense. This cost him the conduct because it was presented in the last round and Pro had no way of arguing against it. However it does not cost the argument points because Pro was also arguing into his last round which gave a mild excuse for Con to do it too.
Vote Placed by Cliff.Stamp 6 years ago
Cliff.Stamp
larztheloserTheFreeThinkerTied
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Total points awarded:23 
Reasons for voting decision: Nice arguments on both sides but Con pressed hard enough to prevent the BoP and Larz was soft on key issues such as money=defense which Con rebutted well. 3:2 Con