I’ve been thinking recently about the fairness of our legal system. Like most common law/hybrid countries we have an adversarial system (as opposed to inquisitorial system). An adversarial system pits one side against another in order to convince an impartial person or group of people (i.e. a judge or jury) that their version of the truth is in fact the truth.
It’s often said that there is one rule for the rich/powerful/famous and another for the rest and this applies equally to the law. The legal system is of course flawed (like any man made system), but is this such a huge flaw that destroys any authority that the system has or is it just a minor inconvenience that means that the occasional miscarriage of justice happens?
When in court, regardless of whether the case is a criminal or civil one, there are two sides (we’ll assume two for simplicity sake) and each side is putting its own story to the court. In Scotland juries very seldom sit in civil cases; I want to begin by looking at the impressionability of juries.
Juries, as lay people, are very impressionable. They will seldom have any great understanding of the law which they will, at the conclusion of a case, have to apply to a set of facts to determine an accused person’s guilt or innocence. Yes, the judge will give them the basics of the law including the standard of proof, who needs to prove what and the basic component parts of the crime that the accused is charged with. However, it is then up to the jury to decide whether they are guilty of the crime or not. Ideally, this should just be based entirely on the evidence they have heard in court. However, it is not that simple. Advocates play a part in this. So, what part do advocates play in helping the jury come to its conclusion?
In everyday life we make decisions about people we meet and see. We often make these decisions based on subjective criteria. We can be swayed by a very articulate person who may or may not be as they present (a good conman is usually articulate). The way a person talks, their posture and body language all play a vital role in how we perceive them. Is this transferred into the justice system? More than likely.
If we are presented with two advocates in a court room and one is better presented and more articulate than the other, then, it is very likely that nature will take its course and we draw a conclusion upon this person. It very seldom comes down to actually how truthful a person is, more how truthful do they appear.
The same can be applied to the accused, although, it can be argued that by simply being in the dock the jury can draw a lot of inferences about the person (despite the presumption, in law, that you are innocent). If the accused is well dressed, has a good background and then, when they give evidence, is very well spoken, polite and gives a good impression it could help their case a lot.
Now, the best advocates are often the ones who are articulate, well dressed and have the better body language. An upper class, well educated accused will often, also, be well dressed, articulate and have a batter body language compared to an unemployed, poorly educated working class accused. The better advocates cost far more than the mediocre and poor advocates, and, the upper-class, well educated accused will often be in a better financial position than the unemployed, poorly educated working class accused. Thus, the former can afford the better advocate and the latter often has to make do with a mediocre or poor advocate fighting their corner in the court room.
Now, if people generally are influenced and persuaded by well dressed, articulate people with the ‘correct’ body language and juries are made up of people who are just as susceptible as anyone else, who is likely to succeed in convincing a jury that their story is the true one? The upper-class, well educated accused who can afford the articulate, well dressed and advocate.
The same can apply to the civil law. However, the access to civil justice is limited by wealth as well. It can be costly brining a civil action against a person or company. Thus, if someone at the poorer end of the social scale is ‘ripped off’ by a company or someone at the top end of the social scale, it is very unlikely that this person could afford to bring a case against this person or company and therefore do without compensation that they very well may be entitled to.
Looking at it from the other side, if a wealthy person has cause to sue someone and the defender happens to be at the lower end of the social spectrum then, the scenario discussed in detail above about being able to afford the best advocates applies again and as such, this can have a negative impact on the case of the defender.
So, it’s not the case that there are actually two separate physical laws. However, the saying is true in that the representation a person can afford in court plays a fairly big part in the outcome of a case and the wealthier a person is the better representation they can afford to get.