Tuesday, July 29, 2014
Several interesting comparative ethics issues were addressed at the International Legal Ethics Conference VI held at City University, in London, July 10-12. The presentations by ethicists from all over the globe were divided into simultaneous sessions on ethics and Education, Philosophy, Regulation, Culture, and Empirical Approaches that offered a comparative view of how different jurisdictions view the interplay of ethics and the law.
Some of the interesting comparative issues I heard discussed included the evolution and regulation of alternative legal business systems (e.g., the LegalZoom phenomenon), the developing role of corporate general counsel, and the impact on the internet on practice and regulation of lawyers. As a comparativist with a US/UK focus, I was particularly interested in a presentation on the discipline of solicitors in England (which seemed to indicate the disciplinary process focused on ‘low hanging fruit’ just as it does in most of the United States).
A particularly interesting presentation focused on the English Bar Council’s ethics training for young barristers and, in particular, on recent developments in handling vulnerable witnesses in criminal cases. To my mind, the comparison between the English procedures in place for dealing with vulnerable witnesses and the comparable procedures in the United States illustrates at least one basic difference between the two criminal justice systems: the degree to which the English system empowers judges and the US system empowers the adversaries.
Thus, in England, procedures for dealing effectively with vulnerable witnesses rest largely in the hands of the judge while in the United States the lawyers are the responsible parties. For example, at an early pre-trial hearing, an English judge will undertake to manage the case and set a strict time table for interviews of witnesses. The judge is likely to address and resolve issues of whether a vulnerable witness should testify behind a screen or have the assistance of an intermediary to report to the court on the witness’s vulnerabilities and abilities, and to support the witness. The court may even require counsel to write down the questions proposed for cross-examination and may limit the time allowed for cross-examination. On the morning of trial, the court, counsel, and any witness intermediary will conference to address a vulnerable witness’s capabilities and how to get the best evidence from the witness, e.g., by short, non-leading questions, delivered chronologically, in plain English, etc.
We in the United States certainly do not give our judges this sort of control. In fact, it can be a violation of the confrontation clause for a court to interfere in or limit cross-examination. In our adversary system, the judge certainly has a role in protecting a vulnerable witness and helping to elicit truthful and complete testimony, but we leave the process largely in the hands of counsel.
I couldn’t help wondering if the elite status of barristers in England – something we don’t have in the United States – also contributed to the decision to give so much control to the courts. Traditionally, barristers had very little to do with lay clients and worked in what were essentially guilds, accepted fees by way of a pouch in the back of their gowns and were considered to be skilled advocates rather than partisans. To this day, barristers can function as defense counsel and prosecutors in different cases. In that context, it is not surprising that there would be a willingness on the part of barristers to defer the ethically and practically messy process of dealing with vulnerable witnesses to the courts.