Your point on the 4th point is indicative of a difference between the US and other common law jurisdictions. Coaching of witnesses and the sharing of evidence is strictly prohibited in the UK, Australia, HK etc. A few years ago Clayton Utz, a large Australian law firm, got into hot water over alleged witness coaching.

I have no view on the Li Zhuang arrest or punishment but I guess my point is that US litigation practices, which are not always consistent with general world practices, are not always good comparables.

I may read a little bit, but I will never represent that I do because my reading ability is extremely limited. As always, I’d rather say that I don’t know any and then surprise people here and there.

Thomas

- the judge/factfinder is more neutral/objective: facts come out by lawyers and the factfinder is the one who weighs the credibility of the evidence, or
- the judge/factfinder is more involved in the case themselves, and does the factfinding/investigation

I like to think that the former produces more objective (albeit erroneous) decisions than the latter. The latter involves a judge/factfinder who is way too involved personally and doesn’t allow room for good lawyering. I also like to think that in such a system, there are 2 options:

- allow defense lawyers to fight everything, including procedural errors
- allow defense lawyers to only defend the truly innocent, and not be a true advocate

However, there are a few things to consider. First, how do you really know who is innocent or not as a third party observer? Often you do not. The facts that come out in trial are sometime very illuminating. Second, the prosecutor is going to throw everything in the case they can, including the kitchen sink, and somehow justice is supposed to come out. How can it? Only when you have an equally zealous advocate attacking those claims. When you have an objective factfinder involved, that’s a good system in my opinion.

So what does that mean? You can have a system with a particular bias:

- weighed against defendants, creating false positives–innocent people who are put in jail though they are innocent (aka “guilty until proven innocent”)
- weighed against the prosecution, allowing the guilty to go free more often in an effort to protect the innocent (aka “innocent until proven guilty”)

So which system would you rather have? I’d rather have the first and not the second. And there you have the U.S. system. Is it a blind adherence to the system? No. But I think the system is the best we have that balances neutrality/objectivity and trying to keep innocent people out of jail.

So before you write off what I say as “typical”, I’d suggest you really figure out what works in a legal system/process before throwing stones. This may not be you, but this sort of comment normally comes from someone who’s never thought carefully about the justice system.

Thomas

Way to go man! Set those guys free…