The concept of an adversarial legal system refers to a type of legal system that is characterized by the presence of two opposing parties who present their arguments before a neutral judge or jury. In this system, each party is represented by a lawyer who advocates for their respective interests. The state is represented by the prosecution, and the defendant is represented by the defense.
The adversarial legal system is often contrasted with the inquisitorial system used in many civil law countries. In an inquisitorial system, the judge takes an active role in investigating the facts of the case and gathering evidence rather than relying on the parties to present evidence.
In the United States, the adversarial legal system is deeply ingrained in the culture and legal tradition. This means that criminal matters decided by the courts are indeed a contest between a lawyer for the state and a lawyer for the defense. These “adversaries” are ethically required to do their utmost to prevail in court, which means that they must present the strongest possible case for their client.
This system is designed to promote fairness and ensure that both parties have an equal opportunity to present their case. The idea is that through the adversarial process, the truth will be revealed, and justice will be served. However, some critics argue that the adversarial system can be overly confrontational and can lead to outcomes that are not always just or equitable.
Prosecutors working at the federal level are responsible for prosecuting a different set of crimes compared to those working in state courts. In both cases, their main responsibility is to present the government’s case against people accused of committing crimes. The purpose of this is to convince the person or group deciding the case, called the “finder of fact“, that the accused is guilty. To achieve this, prosecutors often work closely with law enforcement officials to ensure all the necessary evidence is collected and organized before starting the criminal proceedings.
In addition to presenting evidence, prosecutors also have the duty of ensuring that justice is served. This means that they must share any evidence that could potentially prove the defendant’s innocence or guilt. They must also consider the rights of the defendant throughout the legal process. Overall, prosecutors play a crucial role in the criminal justice system, working to maintain law and order in their respective jurisdictions.
In the United States federal court system, prosecutors are referred to as United States Attorneys (USAs). Each of the 94 federal court districts in the country has a U.S. Attorney. The President appoints these individuals and primarily serves as administrators. In most cases, actual prosecutions are carried out by Assistant U.S. Attorneys (AUSAs) (United States Attorneys, n.d.).
The U.S. Attorney General, who is also the head of the United States Department of Justice, oversees the work of the U.S. Attorneys. Meanwhile, the nearly 2,000 assistant federal prosecutors are responsible for investigating potential violations of federal laws. They concentrate on crimes that may be beyond the scope of local law enforcement operations, such as large-scale drug trafficking, public corruption, and white-collar crime.
Their work is critical in maintaining the integrity of the federal justice system and in ensuring that federal laws are enforced effectively. Through their investigations and prosecutions, assistant U.S. Attorneys play a vital role in protecting the public and upholding the rule of law.
At the state and local level of government in the United States, prosecutors are typically referred to as District Attorneys (D.A.). These individuals are responsible for enforcing the criminal laws of their respective jurisdictions. In some places, such as Illinois, these lawyers are referred to as State’s Attorneys. While their job titles may differ, their role is largely the same: to prosecute criminal cases on behalf of the government.
District Attorneys have a significant amount of discretion in how they approach their work. They can decide which cases to pursue, what charges to file, and how to present the case in court (National District Attorneys Association, n.d.). This means that they play a critical role in shaping the criminal justice system, as their decisions can affect the lives of defendants, victims, and entire communities.
However, official action taken against prosecutorial misconduct is relatively uncommon, and the methods used to address it can vary by jurisdiction (National Registry of Exonerations, 2021). Prosecutorial misconduct refers to any unethical or illegal behavior committed by a prosecutor during the course of a case. This can include withholding evidence, making false statements, or engaging in other forms of unethical conduct.
Despite their wide discretion, it is important for District Attorneys to uphold ethical standards and be held accountable for any misconduct. The National District Attorneys Association has established a set of guidelines for prosecutors that emphasizes the importance of integrity, fairness, and impartiality (National District Attorneys Association, n.d.). By adhering to these principles, District Attorneys can help ensure that justice is served and that the rights of defendants are protected.
In the United States, some local jurisdictions allow for the prosecution of minor offenses and misdemeanors at the city level. City Attorneys are often responsible for prosecuting these cases, which can include traffic offenses, nuisance offenses, and violations involving alcohol. In some jurisdictions, City Attorneys may also be authorized to prosecute misdemeanor cases that can result in jail time.
The types of offenses that City Attorneys can prosecute may vary by jurisdiction. In some places, their role may be limited to handling minor offenses that result in fines, while in other jurisdictions, they may have broader prosecutorial authority. Regardless of their specific responsibilities, City Attorneys play an important role in enforcing local laws and maintaining public safety.
It’s worth noting that the authority to prosecute offenses at the city level can vary widely by state and even within states. In some places, the responsibility for prosecuting minor offenses may fall to county prosecutors or other government officials. It is important to consult local laws and regulations to determine the specific responsibilities and authority of City Attorneys in a given jurisdiction.
In cases where high-level government officials are charged with misconduct, Independent Counsels are appointed to serve as prosecutors. The purpose of these lawyers is to prevent the abuse of government power by investigating and prosecuting cases involving allegations of misconduct by high-ranking government officials (United States Department of Justice, 2018).
The United States Attorney General has the power to appoint an Independent Counsel when they determine that there is sufficient evidence to warrant the investigation of high-ranking government officials, including members of the United States Congress (United States Department of Justice, 2018). These Independent Counsels are not accountable to any government office in order to prevent undue influence over the investigation.
The length of service of Independent Counsels is determined by the length of time needed to complete the investigation. Once the investigation is completed, the Independent Counsel presents their findings to the Attorney General (United States Department of Justice, 2018).
It is important to note that the use of Independent Counsels is a rare occurrence and is typically reserved for the most serious cases involving high-ranking government officials. The appointment of an Independent Counsel is intended to ensure that investigations into potential misconduct are conducted independently, without any undue influence or bias from government officials (United States Department of Justice, 2018).
Prosecutors are among the most influential actors in the criminal justice system and possess a great deal of discretion in how they carry out their duties. They make critical decisions such as who to charge, what charges to file, when to drop charges, and whether or not to offer plea bargains. In death penalty states, prosecutors hold immense power as they have the ability to charge defendants with capital crimes, thereby determining their fate with regard to the ultimate penalty – life or death.
Despite the vast discretion afforded to prosecutors, it is most commonly used in three key areas: charging decisions, dismissal of charges, and plea bargaining (Phillips & Worrall, 2018). Prosecutors can choose to file charges against someone or decide not to pursue a case altogether. Additionally, they have the authority to offer plea bargains, which can significantly impact the outcome of a case.
While prosecutors have a duty to ensure that justice is served, there have been concerns about the potential for abuses of power in their decision-making process. The use of prosecutorial discretion has been criticized as being influenced by biases, personal interests, and political pressures (Phillips & Worrall, 2018). These concerns underscore the importance of oversight and accountability measures to ensure that prosecutors act with fairness, impartiality, and professionalism.
In sum, the significant discretion afforded to prosecutors is a double-edged sword that can both benefit and harm the administration of justice. While prosecutors play a critical role in upholding the law and protecting public safety, it is essential that they use their powers ethically and responsibly.
In the United States criminal justice system, prosecutors are responsible for deciding whether to prosecute persons accused of a crime or not. While the police initially inform criminal defendants of the charges against them, the prosecutor has the ultimate discretion in deciding what formal charges will be filed (Bowers, 2021).
A range of factors influences the decision to prosecute. One of the most significant considerations is the strength of the evidence against the accused. Prosecutors are unlikely to move forward with cases that have insufficient evidence to support a conviction. The severity of the offense is another key factor. More serious offenses are more likely to be prosecuted than minor ones.
Additionally, resource constraints may impact a prosecutor’s decision to prosecute. They must consider both the available prosecutorial resources and the size of the court’s docket (Bowers, 2021). Community resources also play a role. Prosecutors may seek alternatives to prosecution or prison, such as diversion programs or community service when they are available.
The defendant’s personal characteristics and criminal history are also important factors in the decision to prosecute. A defendant’s degree of culpability and prior criminal history can influence prosecutors to seek harsher punishments. In contrast, cooperation with the police and a willingness to assist with the prosecution of others can lead to more lenient sentences (Bowers, 2021).
When a prosecutor files charges against a person, they have many options to proceed with the case. One option is to take the case to trial. Another option is to offer the accused a plea bargain, where they can plead guilty in exchange for a lighter sentence. Finally, the prosecutor may choose to enter a nolle prosequi, which is a formal statement declaring that they will drop the case.
A nolle prosequi is used in a variety of situations. For example, if the case is considered minor or if the evidence is not admissible in court, the prosecutor may choose to drop the case. Similarly, if there is not enough evidence to support the charges, or if it is discovered that the accusations are false, the prosecutor may also choose to drop the case.
Overall, the prosecutor has a great deal of discretion in deciding how to proceed with a case. Whether they choose to go to trial, offer a plea bargain, or drop the charges, it is ultimately up to them to decide how to handle the case.
Prosecutors have a lot of power when they negotiate plea bargains with the defense. A plea bargain is when the prosecutor agrees to let the defendant plead guilty to a lesser charge or receive a lighter sentence in exchange for certain concessions. Both the prosecution and the defense can benefit from plea bargains.
For the defense, the most significant benefit is a reduced sentence. The defendant avoids the risk of a harsher sentence if they were to go to trial and lose. Plea bargaining can also help the defense avoid the time and expense of a lengthy trial.
On the other hand, plea bargaining helps the prosecution to conserve resources. It saves the prosecutor’s time and the resources of the courts. If plea bargaining were not available, the courts would become overwhelmed with cases, causing delays and backlogs in the justice system. Plea bargaining is a common practice that benefits both the prosecution and the defense. It saves time and resources and can lead to a reduced sentence for the defendant.
The defense attorney plays a crucial role in advocating for their client throughout the adversarial legal process. They are essential to ensuring fairness in the criminal justice system. Defense attorneys have a wide range of responsibilities, starting from protecting the rights of the accused during pretrial processes such as police interrogations and lineups.
In addition, defense attorneys work alongside prosecutors to evaluate the strength of the cases against their clients. They represent their clients in various pretrial matters, such as bail hearings and suppression hearings. Developing a defense strategy that may involve plea bargaining or going to trial is also a critical task for defense attorneys.
When a case goes to trial, the defense attorney represents the client in court. They cross-examine witnesses, present evidence, and argue the case on behalf of their client. In the case of a guilty verdict, defense attorneys advocate for their clients during sentencing hearings, arguing against the prosecution’s proposed measures.
Moreover, defense attorneys represent their clients in appeals when the outcome of a trial is unfavorable. This includes identifying errors made during the trial process and presenting legal arguments to higher courts to overturn the verdict. The defense attorney’s role is critical in safeguarding the rights of the accused and ensuring a fair legal process. They undertake numerous tasks throughout the legal process, from pretrial to post-trial proceedings, to protect their client’s interests.
Types of Defense
In court, criminal defendants can defend themselves in three primary ways, although there are numerous variations depending on specific details. Defendants can either hire a private attorney, utilize legal services provided by the government for those who cannot afford legal representation, or represent themselves.
While self-representation is an option, it is not typically recommended due to the complexities of the legal system. Thus, most criminal defendants choose one of the first two options available to them, that is, hiring their own private attorney or utilizing legal services provided by the government for those who cannot afford legal representation.
Hiring a private attorney can be expensive, but it can offer defendants the opportunity to choose an attorney who is well-suited to their case and has a good track record of success. Private attorneys can provide personalized attention and typically have more resources at their disposal than attorneys provided by the government.
In contrast, legal services provided by the government for the poor are available for those who cannot afford a private attorney. Although these attorneys may have a large caseload and may not have the same level of resources as a private attorney, they are still licensed professionals who are qualified to represent defendants in court.
Criminal defendants have three primary options for legal representation in court. While self-representation is an option, it is not typically recommended. Most defendants choose to either hire a private attorney or utilize legal services provided by the government for those who cannot afford legal representation.
Legal Services for the Indigent
In the United States criminal justice system, most criminal defendants cannot afford to hire a private lawyer to represent them, historically limiting access to legal representation to the wealthy. However, in 1963, the Supreme Court’s Gideon v. Wainwright decision established that an indigent defendant charged in state courts with a felony offense has the right to be represented by counsel to ensure due process. The court further refined this rule in Argersinger v. Hamlin in 1972, stating that court-appointed counsel must be provided whenever there is a possibility of the defendant being sentenced to prison. However, those accused of minor offenses that only result in a fine, such as traffic violations, are not entitled to state-funded attorneys.
The term “indigent” can be misleading, as the qualification criteria for court-appointed counsel vary by state, and being entirely without means is not always required. Despite this, more than 80% of criminal defendants accused of a felony use court-appointed counsel for their defense (American Bar Association, 2017), as the qualifications are sufficiently broad.
However, many advocates argue that free legal defense services are underfunded in the United States due to the politically unpopular nature of providing tax-funded legal services to those accused of crimes. This often leads to unacceptably high caseloads, forcing attorneys to recommend actions that may not be in the client’s best interest, such as accepting plea bargains (National Legal Aid & Defender Association, 2016). This situation can compromise the effectiveness of legal representation and the overall fairness of the justice system.
While the Gideon v. Wainwright decision guarantees access to legal representation for indigent defendants facing felony charges in state courts, the underfunding of legal defense services in the US often results in high caseloads and inadequate legal representation.
Most private defense attorneys in the criminal justice system have several years of experience working with criminal cases as government employees, such as with a prosecutor’s office or a public defender’s office (National Association of Criminal Defense Lawyers, 2022). Veteran criminal defense attorneys can charge very high fees, which are usually related to the complexity of the case and whether the attorney is required to appear at trial (American Bar Association, 2014).
Having experience as a government employee allows private defense attorneys to understand how the prosecution thinks and works, which can provide them with an advantage in court. These attorneys are often able to leverage their understanding of the criminal justice system to benefit their clients. However, the high fees charged by veteran criminal defense attorneys can make their services inaccessible to many defendants who cannot afford to pay such high rates.
The amount of fees charged is typically related to the complexity of the case, including factors such as the severity of the charges, the amount of evidence involved, and the number of witnesses. Additionally, if the case proceeds to trial, the attorney’s fees will generally be higher due to the increased amount of time and resources required (American Bar Association, 2014). While some defendants may choose to represent themselves in court to save on legal fees, this is often a risky proposition, given the complexities of the legal system and the severe consequences of criminal convictions.
In conclusion, private defense attorneys in the criminal justice system often have years of experience working with criminal cases as government employees, providing them with valuable insights into the workings of the criminal justice system (National Association of Criminal Defense Lawyers, 2022). However, the high fees charged by veteran criminal defense attorneys can make their services inaccessible to many defendants. The amount of fees charged is typically related to the complexity of the case and whether the attorney is required to appear at trial, making legal representation a costly investment for many criminal defendants.
In the legal community, there is an old adage that “a lawyer that represents himself in court has a fool for a client.” This is because the adversarial nature of the legal system makes it challenging to mount an effective defense without the help of an attorney. Even legal professionals may struggle to cross-examine themselves without appearing foolish, making self-representation an unwise choice for most individuals.
Despite its lack of efficacy, the Supreme Court established in Faretta v. California (1975) that criminal defendants have the right to represent themselves in court. However, there are several legal requirements and restrictions placed on self-representation. The most critical requirement is that the defendant must knowingly and voluntarily waive their right to counsel (American Bar Association, 2014). This is to ensure that defendants are aware of the risks and consequences of representing themselves in court, which can be significant.
In addition to the legal requirements for self-representation, it is worth noting that self-representation can significantly increase the likelihood of an unfavorable outcome in a criminal case. Without legal training and experience, individuals are likely to make mistakes that can be detrimental to their case, such as missing crucial deadlines or failing to file necessary motions.
While criminal defendants have the right to self-representation in court, it is generally unwise to do so, given the challenges of the adversarial legal system and the significant risks involved. Defendants must meet strict legal requirements to waive their right to counsel, and even then, the choice to represent oneself can significantly increase the likelihood of an unfavorable outcome.
The principle of fairness is integral to our legal system. In order to achieve fairness, the legal system must treat every individual the same way, without discrimination based on factors such as race, religion, or sex. This idea is encapsulated in the concept of procedural due process, which is enshrined in the Bill of Rights and can be found in both the Fifth and Fourteenth Amendments.
Some critics argue that these protections serve to protect criminals and should be abolished. However, this viewpoint fails to take into account the fundamental principle of our legal system that all individuals are presumed innocent until proven guilty in a court of law. Without these protections, every citizen would be subject to searches, arrest, confinement, and questioning under duress or even torture, regardless of whether they had committed a crime. Most Americans would not accept such blatant violations of human rights, and our constitution protects us from such abuses by design.
In order to protect the rights of everyday citizens, it is necessary to protect the rights of criminal defendants until they can be proven guilty in a court of law. This is not to say that criminals should go unpunished, but rather that they are entitled to the same protections under the law as any other citizen. By protecting the rights of all individuals, the legal system ensures that justice is served in a fair and impartial manner.
The principle of procedural due process is essential to the fairness of our legal system. Protecting the rights of criminal defendants is necessary to protect all citizens’ rights and prevent government abuse of power. The legal system must strive to ensure that justice is served in a manner that is both fair and impartial.
The Philosophy of the Juvenile System
One of the central themes of the juvenile justice system is the belief that juveniles should be treated differently than adults. It is widely accepted that delinquent children, due to their lack of maturity, are less culpable than adults. Therefore, the juvenile justice system aims to focus on rehabilitation and education rather than punishment and retribution.
A critical difference between the juvenile justice system and the adult criminal justice system is that the former is not adversarial in nature, at least not philosophically. The adult criminal justice system is based on the principle of adversarialism, where the prosecution and defense engage in a legal battle to determine guilt or innocence. In contrast, the juvenile justice system is based on the principle of parens patriae, which is the notion that the state has a responsibility to protect and care for its citizens, including juveniles.
In practice, the juvenile justice system is not always as non-adversarial as it is intended to be. Juvenile defendants may still be subject to harsh punishment and detention, especially for serious offenses. Furthermore, some critics argue that the juvenile justice system is too lenient and fails to hold juvenile offenders accountable for their actions.
However, the underlying philosophy of the juvenile justice system remains focused on rehabilitation and education rather than punishment. The goal is to address the underlying issues that led to the delinquent behavior and provide juveniles with the resources and support they need to turn their lives around.
In conclusion, the juvenile justice system is based on the principle that juveniles should be treated differently than adults due to their lack of maturity and lesser culpability. While the system is not always as non-adversarial as intended, the goal remains focused on rehabilitation and education. By addressing the underlying issues that led to delinquent behavior, the system aims to help juveniles turn their lives around and become productive members of society.
Early advocates of the juvenile justice system argued that court proceedings against juveniles should not be adversarial but that the state should act as parens patriae. However, the Supreme Court has been critical of this idea, stating that the meaning of the Latin phrase is murky and its historic relevance is questionable (In re Gault, 1967).
The concept of parens patriae originated in chancery practice, where it was used to describe the power of the state to act in loco parentis to protect the property interests and person of the child (DeShaney v. Winnebago County Dept. of Social Services, 1989). However, this doctrine was not part of criminal jurisprudence. Under common law, children under the age of seven were considered incapable of possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and, in theory, punishment like adult offenders (Commonwealth v. Mochan, 1868). Prior to the establishment of separate juvenile courts, the state did not have the authority to accord children fewer procedural rights than adults (McKeiver v. Pennsylvania, 1971).
The idea that the state, as parens patriae, could deny children procedural rights available to adults was justified by the belief that children, unlike adults, had a right “not to liberty but to custody.” According to this philosophy, if a child’s parents failed in their custodial duties and the child became delinquent, the state could intervene. In doing so, the court did not deprive the child of any rights because, under the parens patriae philosophy, children had no rights. The court merely provided the custody to which the child was entitled. Based on this rationale, proceedings involving juveniles were described as “civil,” not “criminal.” They were not subject to the requirements that restrict the state when it seeks to deprive a person of their liberty (In re Winship, 1970).
While this philosophy was popular for an extended period, it did not sit well with the civil rights-minded Warren Court. The court believed that juveniles were entitled to the same procedural rights as adults when facing criminal charges. Consequently, the court established that juvenile court proceedings were subject to constitutional protections, such as the right to counsel and the right to due process. This led to the development of the modern juvenile justice system, which aims to balance the rehabilitative needs of juveniles with the need for public safety (In re Gault, 1967).
A Constitutional Shift
The juvenile justice system was created with the intention of helping children who had gotten into trouble with the law. It was believed that children needed special treatment and individualized attention, as opposed to being subject to the same harsh procedures as adults in the criminal justice system. However, this idea did not always translate into fair, efficient, and effective procedures. The Warren Court, a group of Supreme Court Justices who served from 1953 to 1969, was critical of how juvenile judges had unbridled discretion in dealing with children’s lives. They argued that the arbitrary and capricious treatment of juveniles occurred because juvenile courts departed from established standards of due process.
Due process is a legal concept that requires the government to follow certain procedures and provide certain protections when taking action that affects an individual’s life, liberty, or property. In the context of the juvenile justice system, this means that children should have the same legal protections as adults, such as the right to a fair and impartial trial, the right to be informed of the charges against them, and the right to legal representation.
The Supreme Court became critical of the idea that children should not have the same constitutional protections as adults in the criminal justice system. They argued that due process standards, if administered intelligently and not ruthlessly, would not require states to abandon the substantive benefits of the juvenile process. The Court’s decision led to a shift toward implementing constitutional safeguards in juvenile courts, such as the right to counsel and the right to a hearing before a neutral and detached judge. This change aimed to ensure that juveniles are not subjected to arbitrary and capricious treatment and receive fair and just treatment in the juvenile justice system.
The section discusses the adversarial legal system used in the United States, which is characterized by the presence of two opposing parties who present their arguments before a neutral judge or jury. The adversarial system is contrasted with the inquisitorial system used in many civil law countries, in which the judge takes an active role in investigating the facts of the case and gathering evidence. The adversarial system is designed to promote fairness and ensure that both parties have an equal opportunity to present their case, but critics argue that it can be overly confrontational and lead to outcomes that are not always just or equitable.
The section also explains the roles and responsibilities of various types of prosecutors in the United States, including U.S. Attorneys, District Attorneys, City Attorneys, and Independent Counsels. Prosecutors have significant discretion in how they carry out their duties, including charging decisions, dismissal of charges, and plea bargaining. While prosecutors play a crucial role in upholding the law and protecting public safety, concerns have been raised about potential abuses of power in their decision-making process, underscoring the importance of oversight and accountability measures.
The section also describes how prosecutors make decisions about whether to prosecute a defendant or not. Factors influencing these decisions include the strength of the evidence against the accused, the severity of the offense, resource constraints, community resources, the defendant’s personal characteristics and criminal history, and cooperation with the police. Finally, the section explains the concept of plea bargaining, in which the prosecution and defense negotiate a plea agreement that benefits both parties by saving time and resources and potentially leading to a reduced sentence for the defendant.
The defense attorney plays a crucial role in advocating for their client throughout the adversarial legal process, protecting their rights during pretrial processes, and representing them in court. Criminal defendants can defend themselves in three primary ways, including hiring a private attorney, utilizing legal services provided by the government, or representing themselves.
While self-representation is an option, it is not typically recommended due to the complexities of the legal system. Moreover, legal services for the indigent are available, but many advocates argue that they are underfunded in the United States, leading to unacceptably high caseloads and inadequate legal representation. Private defense attorneys charge high fees, which are usually related to the complexity of the case and whether the attorney is required to appear at trial.
Self-representation can significantly increase the likelihood of an unfavorable outcome in a criminal case, and defendants must meet strict legal requirements to waive their right to counsel. The principle of procedural due process is essential to the fairness of the legal system, and protecting the rights of criminal defendants is necessary to protect the rights of all citizens and prevent abuses of power by the government.
The philosophy of the juvenile justice system centers on the idea that juveniles should be treated differently than adults, as they are less culpable due to their lack of maturity. The system aims to focus on rehabilitation and education rather than punishment and retribution. The juvenile justice system is based on the principle of parens patriae, which is the notion that the state has a responsibility to protect and care for its citizens, including juveniles.
While the idea of parens patriae was popular for an extended period, it did not sit well with the Warren Court, which believed that juveniles were entitled to the same procedural rights as adults when facing criminal charges. Consequently, the court established that juvenile court proceedings were subject to constitutional protections, such as the right to counsel and the right to due process. This led to the development of the modern juvenile justice system, which aims to balance the rehabilitative needs of juveniles with the need for public safety.
Argersinger v. Hamlin (1972), Assistant U.S. Attorney, City Attorney, District Attorney (D.A.), Docket, Faretta v. California (1975), Independent Counsel, Indigent Defendant, Nolle Prosequi, State’s Attorney, United States Attorney
Last Updated: 07/13/2023
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