Adversarial system

Adversarial system

The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of each advocate representing his or her party's positions and involves an impartial person, usually a jury, trying to determine the truth of the case.cite book|last=Hale|first=Sandra Beatriz|title= The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter |publisher=John Benjamins|date=July 2004|pages=p31|isbn=978-1588115171|url=] cite book|last=Richards|first=Edward P. |coauthors=Katharine C. Rathbun|title=Medical Care Law|publisher=Jones & Bartlett|date=1999-08-15|pages=p6|isbn=978-0834216037|url=] cite book|last=Care|first=Jennifer Corrin |title=Civil Procedure and Courts in the South Pacific|publisher=Routledge Cavendish|date=2004-01-12|pages=p3|isbn=978-1859417195|url=]

As opposed to that, the inquisitorial system usually found on the continent of Europe among civil law systems (i.e., those deriving from Roman law or the Napoleonic Code) has a judge (or a group of judges who work together) whose task is to investigate the case.

The adversarial system is the two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.

History of the adversarial process

Some writers trace the process to the medieval mode of trial by combat [ Kirsten DeBarba 2002. Maintaining the adversarial system: The practice of allowing jurors to question witnesses during trial. Vanderbilt Law Review 55, no. 5 (October 1): 1521-1548. (accessed August 15, 2007). ] , in which some litigants, notably women, were allowed a champion to represent them. Certainly the use of the jury in the common law system seems to have fostered the adversarial system, and there are many today who believe that it remains the best way of providing for the determination of a disputed issue. On the other hand, the new British Civil Justice reforms initiated by Lord Woolf (the Civil Procedure Rules or CPR) are prefaced with a case management system controlled by the judge rather than by the lawyers representing the different parties; similar case management systems are coming into use in the United States.

Lawyers are often asked how they can represent someone if they believe that person to be guilty; counsel must not deceive the court but his client is entitled to have the best presentation of the case laid before the tribunal and to have the evidence fully tested. In England and Wales, if a client states his guilt to his counsel, the counsel is required to cease working on the case (assuming the client is pleading innocence).

Basic features

As an accused is not compelled to give evidence in a criminal adversarial proceeding, he may not be questioned by prosecutor or judge unless he chooses to do so. However, should he decide to testify, he is subject to cross-examination and could be found guilty of perjury. As the election to maintain an accused person's right to silence prevents any examination or cross-examination of that person's position, it follows that the decision of counsel as to what evidence will be called is a crucial tactic in any case in the adversarial system and hence it might be said that it is a lawyer's manipulation of the truth. Certainly, it requires the skills of counsel on both sides to be fairly equally pitted and subjected to an impartial judge.

By contrast, while defendants in most civil law systems can be compelled to give a statement, this statement is not subject to cross-examination and not given under oath. This allows the defendant to explain his side of the case without being subject to cross-examination by a skilled opposition.

Judges in an adversarial system are impartial in ensuring the fair play of due process, or fundamental justice. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision rendering obsolete the judicial process in question—rule of law being illicitly subordinated by rule of man under such discriminating circumstances.

The rules of evidence are also developed based upon the system of objections of adversaries and on what basis it may tend to prejudice the trier of fact which may be the judge or the jury. In a way the rules of evidence can function to give a judge limited inquisitorial powers as the judge may exclude evidence he/she believes is not trustworthy or irrelevant to the legal issue at hand.

Peter Murphy in his Practical Guide to Evidence recounts an instructive example. A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' 'No, my lord, merely the evidence', replied counsel.

The name adversary system may be misleading in that it implies it is only within this type of system in which there are opposing prosecution and defense. This is not the case, and both modern adversary and inquisitiorial systems have the powers of the state separated between a prosecutor and the judge and allow the defendant the right to counsel. Indeed, the European Convention on Human Rights and Fundamental Freedoms in Article 6 requires these features in the legal systems of its signatory states.

The right to counsel in criminal trials was initially not accepted in some adversarial systems. It was believed that the facts should speak for themselves, and that lawyers would just blur the matters. As a consequence, it was only in 1836 that England allowed suspects of felonies to have legal counsel (the "Prisoners' Counsel Act"). In the United States, however, personally retained counsel have had a right to appear in all federal criminal cases since the adoption of the Constitution (a response to the English practice of barring counsel from felony cases) and in state cases at least since the end of the Civil War, although nearly all provided this right in their state constitutions or laws much earlier. Appointment of counsel for indigent defendants was nearly universal in federal felony cases, though it varied considerably in state cases [ [ CRS/LII Annotated Constitution Sixth Amendment ] ] . It was not until 1963 that the U.S. Supreme Court declared that legal counsel must be provided at the expense of the state for indigent felony defendants, under the federal Sixth Amendment, in state courts. See "Gideon v. Wainwright", ussc|372|335|1963.

One of the most significant differences between the adversary system and the inquisitorial system occurs when a criminal defendant admits to the crime. In an adversary system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution of her or his crime, a false confession will not be accepted even in common law courts. By contrast, in an inquisitiorial system, the fact that the defendant has confessed is merely one more fact that is entered into evidence, and a confession by the defendant does not remove the requirement that the prosecution present a full case. This allows for plea bargaining in adversary systems in a way that is difficult or impossible in inquisitional system, and many felony cases in the United States are handled without trial through such plea bargains.

Another difference is in the rules of evidence. Because the adversarial system assumes that the evidence is to be presented to laymen rather than to jurists, the rules of evidence are considerably more strict. Rules on hearsay are much stricter in most adversarial systems than in inquisitorial systems; though often lower tribunals are allowed some flexibility in applying the strict rules of common law evidence such as in domestic relations courts or in small claims proceedings where the parties are often unrepresented by lawyers and the judge functions as more of an inquisitor to protect the interests of children than a neutral arbiter of justice.

In some adversarial legislative systems, the court is permitted to make inferences on an accused's failure to face cross-examination or to answer a particular question. This obviously limits the usefulness of silence as a tactic by the defence. In England the Criminal Justice and Public Order Act 1994 allowed such inferences to be made for the first time in England and Wales (It was already possible in Scotland under the rule of criminative circumstances). This change was disparaged by critics as an end to the 'right to silence', though in fact an accused still has the right to remain silent and cannot be compelled to take the stand. In the United States, the Fifth Amendment has been interpreted to prohibit a jury from drawing a negative inference based on the defendant's invocation of his right not to testify, and the jury must be so instructed if the defendant requests.

Comparisons with the inquisitorial approach

In many jurisdictions the approaches of each system are often formal differences in the way cases are reviewed. It is questionable that the results would be different if cases were conducted under the differing approaches; in fact no statistics exist that can show that these systems do not come to the same result. However, these approaches are often a matter of national pride and there are opinions amongst jurists about the merits of the differing approaches and their drawbacks as well.

Proponents of the adversarial system often argue that the system is more fair and less prone to abuse than the inquisitional approach, because it allows less room for the state to be biased against the defendant. It also allows most private litigants to settle their disputes in an amicable manner through discovery and pre-trial settlements in which non-contested facts are agreed upon and not dealt with during the trial process.

In addition, adversarial procedure defenders argue that the inquisitorial court systems are overly institutionalized and removed from the average citizen. The common law trial lawyer has ample opportunity to uncover the truth in a laboratory called the courtroom. Most cases that go to trial are carefully prepared through a discovery process that aids in the review of evidence and testimony before it is presented to judge or jury. The lawyers involved have a very good idea of the scope of agreement and disagreement of the issues to present at trial which develops much in the same way as the role of investigative judges. It has also been argued that a trial by a jury of one's peers may be more impartial than any government paid inquisitor and a panel of his peers. In the United States the right to a trial by a jury of one's peers who are common citizens is guaranteed by the United States Constitution.

Proponents of inquisitorial justice dispute these points. They point out that most cases in adversarial systems are actually resolved by plea bargain and settlement. Plea bargain as a system does not exist in inquisitorial system. Most legal cases in these systems do not go to trial; this can lead to great injustice when the defendant has an unskilled or overworked attorney, which is likely to be the case when the defendant is poor. In addition, proponents of inquisitorial systems argue that the plea bargain system causes the participants within the system to act in perverse ways, in that it encourages prosecutors to bring charges far in excess of what is warranted and defendants to plead guilty even when they believe that they are not. Furthermore, proponents of inquisitorial systems also argue that the power of the judge is limited by the use of lay assessors and that a panel of judges may not necessarily be more biased than a jury. [Anne Strick, "Injustice for All" (New York: G.P. Putnam's Sons, 1977): 21.]

The adversarial system has also been attacked for failing to accurately resolve complex technical issue such as science, technology, or tax or accounting regulation. In the adversarial system, juries encounter such complex technical cases for the first time. This would lead to unjust outcomes for one or both of the litigating parties due to the lack of understanding of the evidence presented. In the inquisitorial system, the judge, though not an expert in each technical subject, would have gone through similar tax, forensic, or accounting related issues countless times, and are thus unlikely to be confused or manipulated.

Disadvantages of using a Jury on criminal matters include:
#Expensive to operate and extends the time taken to hear cases
#Jury service imposes an unfair economic and mental burden on those chosen to serve
#Competence of non-professions is questionable as they are considered ‘amateurs’ in the face of the law
#Jurors can be unduly influenced by media coverage of their case
#Easily persuaded by good counsel
#Do not give reasons for their decisions (process is secret – no debate)
#Jurors have difficulty in assessing damages and analysing complex evidence

This is not an exhaustive list.


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