Section 6. Sportsmanship and the Law

 

In the “adversarial system”, lawyers from both sides devise ingenious litigation schemes to contest vigorously and win. It may be important to note that after the lawsuit is finished, both lawyers always shake hands. While a case is carrying on, the lawyers and judge do their jobs. After the case is finished, the lawyer and judge can still have a friendship outside of the court. This situation is prevalent in the United States because Americans are accustomed to separate business from personal relations. For this legal system to continue functioning with a clear demarcation of the public from the private, there exists a "sportsmanship" attitude about fair competition.

 

Readers may remember the sequel to the movie “The Godfather”. The Godfather was betrayed by his long term confidant capo (subordinate), leading to an assassination attempt and serious injury. However, he maintained his composure. After the Godfather died, his son found the betrayer and strangled him to death. When the subordinate was captured, he recognized that his betrayal of the godfather had been exposed. He said gloomily to the Godfather's son, “It is only business”. He means his betrayal of the Godfather was merely a business decision;  personal feelings had nothing to do with it. 

 

The above example reflects an American attitude that "It is only business”, separating the public from the private. In any litigation, the relationship between a lawyer and his client is very close. The lawyer must know all about the client’s details and confer about how litigation will proceed. If it is a criminal trial, the thoughts and behavior of the two persons, one a thief or a murderer, the other a lawyer, are sharply different. The only thing that can keep the two persons together is separating business from personal feelings.  Once he accepts the case, the lawyer should spare no effort to defend the accused within the law, and cannot be affected by his own feeling about this particular person. 

 

I call this spirit the spirit of sportsmanship because it is similar with the spirit of athletes. A good lawyer and a good athlete both respect fair play. In addition, an even more important rule that lawyers have is to not let their personal feelings or personal relationships affect their work. A lawyer cultivates his spirit of sportsmanship which is far more important than their his skills. There are three reasons. First, if there is no fair competition or capacity to tolerate impartiality, no matter how stringent a country’s legal system is, it will be prone to corruption and abuse for private interests. Second, a lawyer's job is to be factual and objective with analysis, and not be swayed by personal feelings. Third, no matter how capable a lawyer is, his success rate in each litigation is fifty fifty. If a lawyer is always affected by each victory or defeat, the victory will be exciting, but the defeat will be depressing. This kind of lawyer would not be able to maintain a long-term psychological balance.

 

Those who have an oriental cultural background but are educated in western law should pay special attention to cultivating sportsmanship, because Asians traditionally over emphasize personal relationships  and lack education about fair competition and objective analysis. They tend to personalizing all kinds of things. We read the debates in Chinese newspapers. The dispute starts out with reasoning but quickly mixes in personal attacks and finally develops to the point of exposing people’s privacy with abusive language. Another example is during a political debate. With only one sentence of disagreement, tables are flipped, chairs are thrown, and people are being hit. These actions are caused by a lack of objective discussion and a spirit of sportsmanship.

 

Therefore, as I expand from western law to civics education, my conclusion is that a democratic society ruled by law must be established on a foundation of fair competition and mutual respect. Those are the contents civics education must not overlook

 

          Section 7.  A Fair trial - An Unfair Verdict

 

There was a "King Case" in America that received worldwide attention. Rodney King was a black man living in Southern California. When four white police officers arrested him, they beat him up and seriously injured him. A witness passing by was able to film a video. Later, this video tape became not only the government’s evidence and  used to prosecute the four police men’s excessive violence, but it was also shown all over world media numerous times. Anyone who saw this tape would probably agree that it is irrefutable evidence and that it would be extremely difficult for these four police men to escape the web of justice. But surprisingly, the jury of ten whites, one Asian and one Hispanic, found the the four police officers not guilty.

 

After the verdict, it touched off an anti racial discrimination riot that was the most serious in the United States in several decades. The riot later evolved into an opportunity for arson and robbery. The readers already know the details, so they are not repeated here. After the "King Case" ended, the media and experts analyzed the prosecutor’s main reasons for failure which include the following points: First, due to the concern of ethnic sensitivity, the government specially chose a black prosecutor to take charge of the prosecution. Unfortunately his experience was not adequate. Second, the government put too much trust in the video tape evidence. They assumed that even if there were no African Americans on the jury, the jury would not allow the police who beat up people get away. Third, the prosecutor did not call King testify. One of the jurors said that if King had testified, the decision might have been different. 

 

All in all, the main reason the prosecution lost was due to overconfidence. In general, Americans at home and abroad would probably not agree with the decision by the jury in the  "King Case". We use this example to clarify the relationship between the principle of "fair trial" and  "fair verdict”.

 

The two most important principles in American criminal law are the previously mentioned “presumed innocent before proven guilty” and  that the accused must get a fair trial. A fair trial is one in which all the parties adhere to the due process of law in conducting a trial and a verdict.

 

A fair trial does not necessarily mean a fair result. The “King Case” is a good example;  the four police officers were found not guilty. However, if there is no fair trial, the outcome is always unfair whatever the outcome is. From this perspective, though we may not agree with the verdicts of the "King Case" and later the "Simpson Case”, we should appreciate the American insistence of a fair trial and the protection of human rights

 

        Section 8.  Innocence and Not Guilty

 

During the closing arguments of the “OJ Simpson Case”, an opinion survey made by a radio station in the San Francisco Bay Area showed that more than 70% of people believed that O.J. Simpson had committed murder. However, less than 60% of people thought the jury would convict him.

 

Let us try to analyze the situation. If O.J. Simpson actually committed a murder, he is certainly not “innocent”. However, if the jury found insufficient evidence to convict, he would receive a verdict of “not guilty”. Under United States law, criminal cases must have enough evidence “beyond doubt” and the jury has to be unanimous to convict. Therefore, under this system, a person being "innocent" and “not guilty" are not the same thing.

 

In Chinese, “Innocent” and “Not guilty” are only different by one character. Yet in English, they are written completely differently because they contain very profound legal philosophies. 

 

There is an American movie called “Presumption of Innocence”. It talked about a prosecutor who was under suspicion of murder and indicted. The name of the movie references the United States’s most basic criminal law principle that says any person subject to criminal charges is presumed innocent until the charges are proven. Even if the defendant is a well-known criminal, unless the prosecutor presents sufficient evidence to prove, he cannot convict.The responsibility for finding and presenting evidence is put one the shoulders of the prosecution.   The law in Britain and Hong Kong is similar to that of the United States in these respects.

 

In modern countries such as those on the European continent and especially Germany and France, plus Japan in Asia, Civil Law prevails. Its principles are opposite to those of Britain and America, as we have discussed. Under Civil Law, as long as the government indicts, the accused will be presumed guilty. He will be convicted unless he can produce evidence to prove his own innocence. In other words, the burden of proof falls upon the defendant.

 

Let us raise an interesting and real example that happens in our every day life. A friend was driving in a lane where you could not switch lanes, but was affected by another car and was forced to switch lanes. She received a traffic violation ticket and was ready to plead guilty and pay the fine. When the traffic police stopped her, she confessed to the traffic regulation violation and stated the reason for her mistake. Of course, the traffic police ignored her explanation and continued issuing the traffic ticker. I said to her, “You should not plead guilty right away. Wait until you go to your scheduled court heating. Under normal circumstances, the judge believes the police officer more than the accused, so do not expect the judge to find you not guilty. But you should tell the judge the situation you were in and ask for leniency. Perhaps the judge will reduce the sentence to a lesser offense, reduce the fine or allow you to attend traffic school. Then you can keep a clean record.  If you are lucky, you may get off completely.

 

Sure enough, my friend went to traffic court for trial. On day of the trial, there were numerous cases pending in court. Each time the judge summoned the police  officer who issued the traffic ticket and the accused to stand before the judge. The trial began with the officer narrating the condition on the days the defendant committed the violation.  Next the defendant could confront and interrogate the office. Finally the judge ruled on the guilt of the defendant.  Although the defendant was entitled to tell his story and confront the police officer, he usually has difficulty rebutting the police officer who was equipped with detailed records. In nine of out ten case the judge decided that the defendant was guilty. Occasionally the judge might be sympathetic and reduce the penalty. When it was my friend's turn, the judge summoned the police officer involved but discovered that he was not present. Whereupon the judge immediately dismissed the case and returned the bond money.   

 

In the United States there are hundreds of thousands of traffic citations every day. Most of the accused simply plead guilty, but they were actual violators anyway. However, if the accused has objection, the court has to accept his defense in a trial. In that event, the police officer is the prosecuting witness, but it is not within the scope of his employment to appear in court as witness. A few years ago, police officers have to use his personal time to attend court as witness. Traffic laws do not specify mandate their attendance. So occasionally police officers do not show up in court. When a police officer is absent, there is no evidence from the witness and the prosecutor has no opportunity to present evidence. In this circumstance, the law assumes that there is insufficient evidence and the case is dismissed immediately. My friend was not an innocent defendant, but the legal result was "not guilty”.

 

The above was not a very honorable example, but it is the best illustration to explain not guilty and innocence. In a few European countries, they have three possible trial results that the judge can choose from: innocent, not guilty, and not proven. This method makes the judgment much more precise.

 

In the United States, even in trivial traffic violation, the defendant’s right to the presumption of innocence is still protected. In major criminal cases, the odds of a defendant luckily escaping the web of justice are even greater. If my friend was in France, Japan, or even China and Hong Kong, she would probably not be so fortunate.

 

Why do Americans still support this kind of law? This addresses the questions discussed previously concerning  the “fair trial, unfair verdict” problem. Since there is no perfect law in the entire world, Americans still believe the legal principles of the Constitution are still the most ideal. If they have to pay a seemingly unreasonable price, it is still worth it.

 

           Section 9. The Essence of American Capitalism

 

After the disintegration of the former Soviet Union, the United States was the world’s only superpower. As late as the founding of the nation in the eighteenth century, America's economy was mainly agrarian. She truly became an industrial power and a model for capitalism only after World War I in the twentieth century. After some years of major evolution, America’s democracy and capitalism become what some developing countries try to pursue, compare, study and emulate.

 

The general perspective is that the economic doctrine modeled on the United States’ economic has the following characteristics: A domestic and foreign free-market economy, minimal interference by the government, a democratic system based on rule of law and not of man, and a Constitution protecting people’s freedom and private property. The readers are probably quite familiar with these characteristics, but many analyses by economic and legal professions are actually superficial summaries, lacking a deeper comprehension of the spirit underlying the economic doctrine of the United States.

 

Having discussed the spirit of the founding of the nation and its legal characteristics of the United States, we can probably sum up the essence behind the United State’s economic and political system.

 

First, the traditional American cherishing of personal freedom is based on the enthusiastic search for religious freedom in the New World by the immigrants in the early sixteenth century. The First Amendment of the Bill of Rights announced outright that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.

 

Second, even prior to independence, the colonies had already begun to expand education and establish high-level universities. To this day, the quality of American universities is still the highest in the world. The contribution of expanded education to the democratic system and economics cannot be exaggerated.   

 

Third, the other side of freedom is self-discipline, self-awareness, self-motivate and self-made. The American individualism is not the same as a doctrine of selfishness.  

 

Fourth, American capitalism was built on the ideal of fair competition. In this ideal world, all the individuals, protected by a impartial and fair politics and law, have the same rights and opportunity to compete fairly and strive for excellence. Based on this ideal, the American legal system stresses a fair trial, the search truth from the adversarial system, and an acceptance of the "let the best team win," spirit of sportsmanship.

 

The respect for freedom, self-discipline, and an acceptance of fair competition combined with a generally high level of education, form the essence of American capitalism. Grasping these points will help our understanding of the laws of the United States.