Revolution in Law
Joao Carlos Holland de Barcellos, Jan/2008
translated by Debora Policastro
The Scientific Meta-Ethics advocates that the fairest lawsuits, or ethically correct and fair, are the ones that provide the greatest happiness in the maximum period of time in which this happiness could be evaluated.
Portuguese Version: http://www.genismo.com/metatexto53.htm
Likewise, we know that the role of law institutions, that is, the goal of the people who work with law, like lawyers, prosecutors and judges, in short, the judiciary, is to make justice: all the facts must be investigated in order to make the judgment as fair as possible. If by any chance facts and evidence cannot be analyzed and judged, justice can make a mistake.
However, it is necessary to expose the truth in order to investigate the facts with strictness. The truth would be composed of a set of facts and evidence that are relevant in the case to be judged.
Nevertheless, we know that the lawyers are not formally or legally committed to showing each evidence they might have when they contact their clients, especially if this evidence is against his client’s objectives. Nowadays, there is no formal commitment to Justice that obliges lawyers to show facts and evidence they know of, or that might come to their knowledge and incriminate their clients, even if these facts and evidence are crucial for the verdict. No lawyer will take criminal responsibility if he/she omits evidence that could incriminate his/her client. Such possibility exists and is supported by law: no lawyer can be incriminated for defending a respondent.
This ethical and judiciary mistake, as a flaw in Justice, must be corrected. Besides preventing justice from obtaining all possible data for a fair judgment, it promotes criminality, since it enhances the possibility for a criminal to be acquitted by lack of evidence (or evidence consciously omitted).
In case there was a change in Law that obliged lawyers to expose all data and evidence they acknowledge, even if they are against their clients, as long as they are relevant to the case, so they could be appreciated by the judge and jury, there would be a more transparent, ethical and fairer lawsuit. In this principle it is necessary that everyone, especially the defenders, exposes the truth even if it can eventually go against the clients. This alteration in justice would also prevent lawyers from working against their nature of justice, for they would not be obliged to defend at any cost, even with moral and emotional harm, their criminal clients. That way lawyers, not being obliged to eventually become “semi-accomplice” of their criminal clients, would be at peace with their consciousness. They would know that their main duty is with justice and, only after that, with their clients.
Obviously, the prosecutor, the state department and the police would also have the legal obligation of showing evidence that might pronounce the respondent not guilty, in case they knew any. The prosecutors’ function of incriminating the respondent is not a reason for the other parts to omit evidence that could pronounce the respondent not guilty. This is not a game where the target is to win or to lose: the objective is to make justice, and everyone should be engaged in this, including justice itself, by altering laws that are necessary to reach this goal.
This is a proposal so truth and justice can prevail again.