Document Type

Article

Publication Date

2024

Abstract

The United States criminal legal system employs what is said to be an “adversary” system—one in which opposing parties—the prosecution and the defense—present their evidence and arguments (usually in conflict with one another) to a neutral third party (a judge or jury) for adjudication. The idea behind the adversarial process is that a judge or jury is best positioned to make determinations of guilt or innocence once provided with reliable information from competent, zealous, and prepared advocates on both sides of the podium. At its core, the adversarial system is meant to function as the mechanism by which constitutional principles are invoked and utilized to prevent injustice. Such a system, however, is predicated on the assumption that opposing counsel stand on equal footing—having similar training, time, and resources to support their respective positions. Unfortunately, the adversarial system exists in Georgia, and countless other jurisdictions, only as a myth—due in large part to a crisis of constitutional proportions.

The Sixth Amendment to the United States Constitution guarantees every accused the right to counsel—including those unable to pay for legal representation on their own, over 85% of criminal defendants in Georgia. In theory, the Sixth Amendment acts as the bedrock of the criminal legal system; without it, there is no such thing as an adversarial system. Criminal defense attorneys are the only lawyers expressly guaranteed by the United States Constitution, and for good reason. They are meant to safeguard the very principle upon which the criminal legal system is based: the presumption of innocence unless and until proven guilty.

There was a time when Americans were led to believe that the legal system protected the rights of the accused, and that the prospect of an innocent person’s conviction was so remote as to be nonexistent. But the advent of DNA testing, technology, and more advanced understandings of social science leading to the roughly 3,447 exonerations since 1989—representing roughly 31,000 years lost—have proven otherwise. The conviction of the innocent is but one of many ways in which the system has failed to live up to its purpose, however. Far more pervasive are the wrongful convictions predicated on the denial of a fair trial. Yet, the overlap between the two is often staggering.

Effective counsel is a criminal defendant’s first and sometimes only form of protection against injustice. Without a good lawyer, a criminal defendant may not be able to assert any other rights to which she is entitled. And yet, as the American Bar Association (ABA) recognized many years ago, “[t]he fundamental right to a lawyer that Americans assume appl[ies] to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.”

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