Hey, everyone! It has been a while, hasn’t it? While we were away at Otakon (and convalescing from Otakon), some of you may have picked up the hotly anticipated sixth entry in the Ace Attorney series, Phoenix Wright: Ace Attorney – Spirit of Justice or perhaps you watched the last episode of the Ace Attorney anime series. Well, as a way to ease back into things, I thought I would start with something that I have been asked more than a few times: is being a real lawyer like Phoenix Wright?
I really shouldn’t have to answer that; of course it isn’t. The Ace Attorney series is, like most entertainment media, very simplified so the average person can digest stuff. Legal mechanics are not only confusing (even to veteran attorneys) but also boring. If it were so simple to grasp, then we would not be subjected to three years of law school and the bar exam to become attorneys. That said, people also give a lot of irrational deference to the idea of the legal profession as something that requires some innate nobility of character or genius intellect. Having dealt with many attorneys, I can assure you that neither is required. Still, law is regarded as one of the higher callings, probably because it does require extended education and, at least at one time, was considered a dignified profession. Since people have asked, I figured I’d do a run down of several ways Ace Attorney is guilty of taking a few liberties with the concept of the criminal justice system as we Americans know it.
#1 – Ei incumbit probatio qui dicit, non qui negat
Okay, let’s start with the obvious: only in Trump’s/Hillary’s America (take your pick) would you have the arrested presumed guilty instead of innocent. The presumption of innocence (known in Latin as “proof rests on he who declares, not he who denies”) goes back to at least the Digest of Emperor Justinian the Great in the sixth century AD and is attributed to the jurist Iulius Paulus Prudentissimus in the second century. Although practice has not always held fast to this general principle, the presumption of innocence is so firmly enshrined in Western jurisprudence that it is hard to envision the world of Ace Attorney meeting ours. In the games, once the police make an arrest, that is the one person that law enforcement marshals all of its power against to prove a case, and if the defendant cannot prove his innocence within three days, he is deemed guilty by default. Oh, and trial begins the day after arrest…
#2 – Speedy Trial Clause
The United States Constitution’s Sixth Amendment demands, “In all criminal prosecutions, the accused shall enjoy the right to a speedy trial.” The Framers probably didn’t mean the day after getting arrested, though. The Speedy Trial Clause hangs a ticking clock over the prosecution to try the case or drop its charges so the accused don’t languish in jail indefinitely. In the games, the prosecution is basically thrown whatever slapdash investigatory evidence the police unearth at the crime scene the night of the arrest and then has to make a compelling case out of it. Of course, this would sound laughable to us, but since we are already starting with deletion of the presumption of innocence, it suddenly seems a lot less funny.
#3 – Hearsay Evidence (and other trial practice)
Anyone who had to sit and be baffled by the phrase “an out-of-court statement introduced to prove the truth of the matter asserted” in evidence class would probably be thrilled by the absence of the hearsay evidence rule in the Ace Attorney world. Amusingly, the ones who would be galled by it the most are defense attorneys like our hero, Phoenix Wright, since the hearsay evidence rule usually works to exclude all kinds of sordid details about a defendant. In Ace Attorney, though, hearsay runs rampant. In fact, the whole body of evidence law got flung out the window somewhere because our heroic defense counsel in the games routinely pick up garbage off the floor and submit it as critical evidence the next day in court. Chain of custody obviously means nothing to these lawyers.
Ah, and a word about cross-examination: there is nothing more quizzical than this back-and-forth babbling that goes on during trial. While attorneys are flinging evidence at the judge that they found in a dumpster, witnesses are also spouting off all kinds of hearsay on the stand. This is egregious enough on its own. What makes it weirder is that the usual pattern is for the prosecutor to say, “Tell the court what happened,” and then, after the witness rambles a narrative, the defense has to dissect every sentence or phrase to parse a meaning and then object based on the available evidence. This is not how it works even remotely. For one thing, objections have to be presented based on perceived violations of judicial or statutory rules, such as the hearsay rule. Objection has nothing to do with the witness incorrectly stating the facts (unless the objecting attorney has a reason to believe the witness is perjuring himself intentionally). In case you didn’t notice, a lot of Ace Attorney witnesses are often just mistaken, not liars. For another thing, an attorney is not allowed to present a witness and then sit back while the witness talks without pause. That actually is objectionable on the grounds of narration; the witness has to respond to specific questions from the attorney conducting the direct examination (direct examination is the opposite of cross examination; in direct, an attorney asks a favorable witness to testify and then on cross, the opposing attorney questions the witness on what she just said in direct).
#4 – Discovery
Oh, and did you want to know what the prosecution is presenting at trial tomorrow? Don’t bother. According to the rules of the Ace Attorney world, the prosecution is under no duty to disclose its evidence. Principal among all things that the prosecution has to disclose is exculpatory evidence, the stuff that tends to prove the defendant innocence rather than guilt. If you ever saw My Cousin Vinnie, you know after Marisa Tomei lectures Joe Pesci about disclosure that this sounds all wrong, and it is. In the American justice system, it doesn’t seem fair for the prosecution to have evidence that undermines its case, withholds that evidence from the defense, and still tries the case anyway. The prosecution in Ace Attorney routinely springs all kinds of surprises and offers speculative theories of the case on the fly…and it’s always the defense’s responsibility to rebut every harebrained idea the prosecution has. The hilarity extends to withholding witnesses from the defense’s knowledge, submitting autopsy reports the day of court (and then submitting a completely different autopsy report later), and the suggestion that prosecutors falsify evidence to ensure convictions. After all, if there is no accountability about where evidence originates, prosecutors could fabricate a case from start to finish.
I find it odd that you never see any defense attorneys do this in Ace Attorney, but I suppose the whole absence of presumption of innocence stacks the deck in the prosecution’s favor right from the start.
#5 – Plea Bargains (and other motion practice)
The job is yours, Negotiator. The American criminal justice system is weighted down by the seemingly limitless amount of crimes happening in this country. There aren’t enough prosecutors to keep up with the supply. My criminal procedure professor, a practicing criminal defense attorney, once told me that the only thing that keeps some crime units in US Attorney’s Offices is the lack of manpower among prosecutors and police. Plea bargains, for better or worse, ease that burden by allowing some defendants to plea out or get diverted into non-custodial sentencing. Defendants like it because it gives them an easier out and prosecutors like it because it gets cases off their desk. You see none of that in Ace Attorney, and for that matter, you don’t see other motion practice in the game like motions to suppress evidence (although points three and four probably cover why), bail hearings, or proof hearings. Something tells me this also leads to a lack of post-trial motion practice like moving for post-conviction relief or appeal. One must imagine in the Ace Attorney world that the field of criminal defense was a fool’s errand prior to Phoenix Wright coming along. If you ever find yourself in a situation where you need a criminal defense lawyer though, then you might be interested in taking a look at something like this Atlantic county criminal defense site.
I’d also chatter away about how the absence of juries is a huge shift in the realities of the American criminal justice system, but it is fairly well-known that Japan has an inquisitorial criminal justice system rather than the adversarial system we use here in the States. Put simply, Japan has no juries. The finder of fact is also the keeper of law: the judge. This is not entirely foreign in America; many cases of a lesser importance are called bench trials because there is only the judge, who sits on the bench. However, liberty is so steeped in the fabric of American jurisprudence that nothing less than most every conceivable safeguard is thrown in there to give the defendant a fighting chance. The alternative is criminal justice as seen in Ace Attorney.
…but truth is stranger than fiction.
And for all of the guffaws you and I have had at the absurdities of the world of Ace Attorney, whether cross examining a parrot or having a witness deliver all of his testimony in rap format, I would be perjuring myself to say that these games are wholly disconnected from reality. Sure, they are comically exaggerated, but so was Law & Order. Yes, there are those odd instances when police cooperate with psychics to investigate a case, but that’s not what I’m driving at, really. Another question connected to whether or not Phoenix Wright is anything like real life lawyering is this: what is it like when you know your client is guilty? This is something Ace Attorney kicks around briefly in Justice for All, and while that game ties the whole thing up in a neat, little package complete with bow, the truth is that this question hangs over lawyers all day. I have been asked the question about dealing with a guilty client since my freshman year of college. When that question was first posed to me, I replied that my role is to serve as an advocate. If I zealously advocated for my client without compromising any ethical rules, mandated either by the law or by my personal standards, then I had done my duty. As my criminal procedure professor would put it to me years later in total validation of my response, it is not his job to know if his client did it. It doesn’t help him to know if his client did it. His job is to advocate for and counsel his client.
Another anecdote might serve to illustrate my point. My friend’s girlfriend jibed at me before I went to law school that lawyers are liars. It was a completely unnecessary insult. I didn’t say anything to her at the time, but the point is that people resent lawyers for their power in steering the results of the most important things to people. After all, when do you consult with an attorney? When the stakes are high, you get an expert. If you have hired an attorney, you are trusting that attorney to get the outcome you want. For lawyers, that is only half of the story. Every attorney has an obligation to his/her client, but there is also an obligation to the court and the public. The ramifications for falling afoul of ethics rules range all the way up to disbarment, fines, and imprisonment. Yes, there are unscrupulous attorneys out there but assuming that they represent most or even many attorneys is utterly fallacious. I wouldn’t risk my law license for some client who really wants to get a vengeful victory over the other guy and neither would most lawyers. That doesn’t mean I have to agree with or believe in my client in order to do my job. This kind of mental and emotional acrobatics act is something that most lay people don’t understand. However, naivete is not a job requirement nor should it be. If I do know my client is in the wrong (knowing, of course, not being a certainty almost ever), I counsel my client to reconsider his position. In the broader view, though, the bigger question is staying true to ethical principles, which make whether my client is guilty a dwarfed consideration by comparison. It’s important, but not in the same sense you might think. My job is to advocate for my client, and every client has a story to tell. It’s up to me to tell that story. When it’s you who has no one but your attorney on your side, suddenly your lawyer is not a liar but the only ally you have. Fun fact: my friend’s girlfriend was later busted for shoplifting shoes. I bet she needed an attorney then.
Ace Attorney accurately conveys the sense that being a lawyer is a real roller coaster. You get no end of surprise twists and turns, whether from condescending opposing counsel, judges who ignore rules of evidence and statutory mandates, or clients making outlandish requests. Many times, the beleaguered Phoenix isn’t swimming in a sea foreign to real attorneys, especially young ones with no experience, no money, and no time to rest. The next time you play Ace Attorney, realize that you are living the thrilling ride that all attorneys do every time they take on a case. All of that is true. All of that is real. Yet so much of it goes unrewarded. So, when you next want to crack that cheap lawyer joke, think about how hard a time Phoenix Wright has in every case. It’s truer than you might think.