All that brilliance, and I failed to make my point. Sigh.

The people who preserved for us the right to a jury trial were in some ways more worldly than most Americans are today. They were familiar with some inquisitorial European justice systems, and chose an adversarial system nonetheless.

For the criminal justice system to appropriately punish the (factually) guilty and free the (factually) innocent is a nice aspiration, but an impossibility in a system of, by, and for imperfect humans. Pretending that what we do within that system can effect Justice is naive, and probably counterproductive; a large dose of cynicism is indicated.

A prosecutor who believed everything the cops told him would be a tool of the police, renouncing his responsibility to seek Justice, because he would often be lied to.

(Do cops lie? All the time, because they think the end justifies the means. There are no isolated incidents. Often the lies are too small and innocuous for us to fight about. But when one cop lies or cheats, it’s unthinkable for the rest to rat him out. If you can find me one honest cop who’s been on the job for more than six months and will claim that he’s never known about (and not reported) another cop lying, cheating, stealing, or otherwise breaking the rules, I’ll pay for the polygraph myself.)

A defense lawyer, in contrast with a prosecutor, often has a constitutional obligation not to seek Justice. Still the truth is almost always better than a lie. Shouldn’t that be an absolute? Why “almost”? Because with questions of criminal defense ethics, the correct answer often begins with “it depends.”

So we muddle along the best we can, hoping that the end result is just, but we can’t know for sure whether it is, and if it truly is, it’s mere coincidence.

So it goes.

But while you make your points well, wasn’t Western Justice simply pointing out a more modest problem that is still a problem even after we concede all of the points that you’ve made: Namely, that we have a system of finding-facts that encourages one side in an adversarial process to conceal and distort those facts?

I’m sure you could argue BOTH sides and I’m not going to deny that prosecutors sometimes attempt to exclude evidence unfavorable to our cause, but I think you would agree, based on your comments on AHCL’s site about the “secret of winning” that often the script is pretty bad for the defense, and the defendant as a result almost ALWAYS has a vested interest in suppressing the truth.

Maybe this is just an inherent failing of our system. Certain other models approach the problem of criminal justice differently, such as certain European systems where the judge is not only a fact finder but an investigative information-gatherer — I’m not sure where that leaves the prosecutor and defense attorney and I’m not sure I like the idea, since that puts a lot more responsibility on the judge’s shoulders — but one might argue it is superior to our adversarial system.

Anyway, all your good points notwithstanding, perhaps you should not dismiss so lightly as naivete the idea that a system that somehow promotes the determination of actual facts (at least at the guilt stage — there are always going to be legitimate disagreements over the appropriate punishment) would be worth striving for. And, to the extent that reciprocal discovery forwards that goal, perhaps it should not be so lightly dismissed, either.