We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a 9,000 word essay, describes these problems and then offers an original and radical solution. States and the federal government could create a single pool of criminal law specialists who would both defend and prosecute criminal cases, working under the supervision of district attorneys and chief public defenders and their staffs. This re definition of the role of lawyers in the criminal process would instantly create near parity between the prosecution and the defense. It would also create a more efficient process and thus could improve the representation of criminal defendants without a substantial increase in the funds currently allocated to prosecution and criminal defense.


Criminal Law | Criminal Procedure | Law and Society

Date of this Version

February 2007