American Injustice: Part 3 of 10

Based on the book Unfair: The New Science of Criminal Injustice by Adam Benforado.
For more detailed information, read the book.

Bad Lawyers

It is well documented that attorneys occasionally act immorally, unethically or illegally. A few will lie or illegally hide evidence from opposing lawyers. Attorneys are not different from other people. Most people act honorably and follow the rules most of the time, yet we see bad behavior everywhere. Cheating is rampant by students at most high schools and colleges. We are not surprised by it among athletes, business people, tax filers, and politicians. The likelihood of getting caught and the size of the reward do not seem to increase cheating. Our self image is the most powerful factor in cheating. If we can rationalize our dishonest behavior to maintain a self-image as a good person, we are more likely to be dishonest.

Most lawyers are very good at justifying their own actions. Our adversarial justice system encourages aggressive advocacy and dilutes responsibility for final outcomes. Being in a group also dilutes feelings of responsibility. Each lawyer in a trial can rationalize the insignificance of his or her actions. Also, acts of omission are far easier to justify than acts of commission. Not disclosing evidence (a Brady violation) is distressingly common and extremely difficult to detect because we can’t detect what we don’t know exists. Prosecutors have enormous control over the state’s evidence and witnesses and what gets turned over to the defense.

We take cues for dishonesty from those around us and from our own past behavior. Dishonest behavior gradually escalates as it succeeds. Perceived mistreatment by others or unjust circumstances can be used to justify dishonesty. Being “out gunned” by the opposing team because of money, prestige, experience, etc. can encourage cheating to balance the perceived unfairness. And cheating to benefit others is more easily justified than cheating that benefits ourselves. People who are more creative are better at being dishonest, and the best lawyers are the most creative.

Changing the attorney’s role from winning to achieving justice and ensuring integrity of the system can help increase ethical behavior. Strong ethical norms and supervisory monitoring help. Signing an honor code or simply writing down ethical responsibilities encourages ethical behavior.

Pervasive, systemic factors can cause far more harm than an occasional bad apple. Unethical behavior in our justice system has enormously egregious consequences, including imprisonment of innocent people. We must insist on systemic changes.

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