Image Source: Ministerio Bienes Nacionales
REGION: Western Hemisphere

In The Public Defender as International Transplant, John King argues that, in the shift from inquisitorial to adversarial systems in Latin American countries, the public defender has not become a meaningful counterweight to the state prosecutor. To make this shift successful, countries must make more than formal legal changes—they must change their culture. King gives an overview of the history of the shift throughout Latin America, and then he focuses on three challenges for public defenders in the context of Chile as a case study.

During the 1980s, as many Latin American countries became democracies, citizens became more focused on human rights. Judiciaries received a significant amount of criticism, because they failed to prevent human rights abuses and were in some cases used by oppressive regimes to suppress dissent. The judiciary’s failure to correct authoritarian abuses was seen largely as a problem of the inquisitorial system. Additionally, during the transition to democracies, crime rates throughout Latin America grew. For example, in Chile, the homicide rate for young males increased by 178% between 1985 and 2001. As a result, citizens believed criminal justice reform was necessary.

While Latin American countries have made the transition in their own ways, the author identifies several commonalities throughout the region. Generally, each transformed their trial system from a written, inquisitorial, judge-led model to an oral, adversarial, party-focused model. Furthermore, the power to investigate and bring criminal charges shifted from judges to the prosecution. In an inquisitorial system, judges lead investigations of the facts, in an effort to “seek the truth.” Judges hold a great deal of power in this system, and the parties play a more limited role. In an adversarial system, the parties drive the process and conduct their own fact finding, and the judge acts as a passive decision-maker.

The shift to the adversarial model also created a new institution: the public defender. Using Chile as an example, King argues that the public defender is not a sufficient counterweight to the prosecutor because public defenders have maintained their old mindset from the inquisitorial system. He identifies three intertwined challenges facing public defenders in this transition:

  1. The public defender’s office does not have a clear mission;
  2. There is an outdated understanding of the public defender’s role; and
  3. Public defenders lack motivation.

The first and second challenges are related. Without a clear mission, public defenders do not have a way of measuring their success. Furthermore, without a mission, public defenders lack an understanding of their role in the new system and have difficulty moving beyond their old role, in which they were passive and reactive. Public defenders in Chile have not adopted adversarial culture. They rarely conduct their own investigations or see themselves as zealous advocates. As an example, public defenders are able to ask the state for money for expert witnesses, but they rarely do. Furthermore, public defender training programs in Chile focus on courtroom and trial skills and not on what lawyers do outside of the courtroom. This shows a failure to understand the importance of the defense lawyer in the adversarial system, as adversarial culture involves independent fact inquiry to challenge the prosecution. As a result, public defenders are not an appropriate counterbalance to the prosecution and may be the cause of many injustices.

Some sources point to an increased incarceration rate as a sign that the transition to the adversarial model has made Chile’s criminal justice system more efficient. From 1980 to 2014, Chile’s prison population grew 198 percent. But, King cautions against using incarceration rates as a measure of success. To know if meaningful change has truly occurred, King argues that one must look to see if the judges, prosecutors, and defenders are truly invested in the new process. King points out that while the new system in Chile is very efficient, in that it appears to be leading to quicker convictions, there is a difference between procedural reform and substantive change. The procedural reforms in Chile may not provide substantive justice, which could also be a reason why the incarceration rates have risen. Defenders must embrace their new adversarial role if the reforms are ever going to be effective.

The final challenge, King argues, is that countries must determine how to motivate public defenders. In Chile, King argues there are two types of people who take the job: those who are looking for a steady paycheck, and those who are drawn to the public defender’s role in promoting human rights. However, the inherent stress of the job causes many of these attorneys to change careers. By looking to other countries, like the United States, Chile may be able to incorporate some successes into their training and culture. King is careful to point out that changes that work in the United States may have little meaning in Chile or other Latin American countries. He argues that examining these cultural motivations can help Chile to answer their own questions about how to motivate public defenders or change culture by starting the conversation.

The transition from the inquisitorial to adversarial system in Latin America is much more complicated than making formal legal changes; it requires a full-scale cultural change. Public defenders must learn new skills to be a meaningful counterweight to state prosecutors. For the adversarial system to protect human rights effectively, King argues we must recognize it will only be effective with a competent and meaningful defense attorney who can challenge prosecutors. Without such a role, adversarial systems can lead to the same injustices experienced in the inquisitorial system.

NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).

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