Adversarial system

Adversarial system

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The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

 or judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

, who attempt to determine the truth of the case. As opposed to that, the inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...

 has a judge (or a group of judges who work together) whose task is to investigate the case.

The adversarial system is generally adopted in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 countries. An exception, for instance in the U.S., may be made for minor violations, such as traffic offenses
Regulatory offences
A regulatory offence or quasi-criminal offence is a class of crime in which the standard for proving culpability has been lowered so a mens rea element is not required...

. On the continent of Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...

 among some civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 systems (i.e. those deriving from Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...

 or the Napoleonic Code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...

), the inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...

 may be used for some types of cases.

The adversarial system is the two-sided structure under which criminal trial
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...

 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
Trial by combat
Trial by combat was a method of Germanic law to settle accusations in the absence of witnesses or a confession, in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it is a judicially sanctioned duel...

, in which some litigants, notably women, were allowed a champion to represent them. The use of the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

 in the common law system seems to have fostered the adversarial system and provides the opportunity of both sides to argue their point of view.

Basic features


As an accused is not compelled to give evidence in a criminal
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

 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
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...

 and could be found guilty of perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...

. As the election to maintain an accused person's right to silence
Right to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....

 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 defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

s in most civil law systems can be compelled to give a statement, this statement is not subject to cross-examination by the prosecutor 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. However, this is mainly because it is not the prosecutor but the judges who question the defendant. The concept of "cross"-examination is entirely due to adversarial structure of the common law.

Judges in an adversarial system are impartial in ensuring the fair play of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

, or fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...

. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that 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
Judicial discretion
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence...

 would actually pave the way to a biased decision rendering obsolete the judicial process in question—rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

 being illicitly subordinated by rule of man
Rule of man
Rule of man is absence of rule of law. It is a society in which one person, or a group of persons, rules arbitrarily.The Sovereign exercises absolute authority and is not bound by any law, he as a person stands outside law...

 under such discriminating circumstances.

The rules of evidence
Rules of evidence
Rules of evidence govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact for consideration....

 are also developed based upon the system of objections of adversaries and on what basis it may tend to prejudice the trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...

 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.

As said by Judge Megan L.A Brown all evidence must be relevant and not hearsay evidence.

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 "adversarial 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 adversarial and inquisitorial 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 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 the right to have legal counsel (the Prisoners' Counsel Act 1836). 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 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. It was not until 1963 that the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 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
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...

, .

One of the most significant differences between the adversarial system and the inquisitorial system occurs when a criminal defendant admits to the crime. In an adversarial system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution
Allocution
Generally, to allocute in law means "to speak out formally." In the field of apologetics, allocution is generally done in defense of a belief. In politics, one may allocute before a legislative body in an effort to influence their position on an issue...

 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 bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...

ing in adversarial 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
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...

 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
Family court
A family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions "family courts" are statutory creations primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a...

 or in small claims
Small claims court
Small-claims courts have limited jurisdiction to hear civil cases between private litigants. Courts authorized to try small claims may also have other judicial functions, and the name by which such a court is known varies by jurisdiction; it may be known as a county or magistrate's court...

 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 inference
Inference
Inference is the act or process of deriving logical conclusions from premises known or assumed to be true. The conclusion drawn is also called an idiomatic. The laws of valid inference are studied in the field of logic.Human inference Inference is the act or process of deriving logical conclusions...

s on an accused's failure to face cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...

 or to answer a particular question. This obviously limits the usefulness of silence as a tactic by the defense. 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

 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 whether or not these systems would come to the same results. 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
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...

 and settlement. Plea bargain as a system does not exist in an inquisitorial system. Most legal cases in adversarial 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.

The adversarial system has also been attacked for failing to accurately resolve complex technical issues 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 is thus unlikely to be confused or manipulated. Moreover, the verdict in an inquisitional case must include written justification by judges. For this reason, when new evidence emerges, the defence and/or the prosecutor can make an appeal on the basis that the verdict was incorrectly reasoned. On the other hand, in an adversarial system, neither defence nor prosecutor know the actual discussion which took place and the jury is sworn to secrecy. Therefore, the appeal once conviction occurs, must be made on the basis that contest between the defence and the prosecutor was not fair, which from the perspective of an inquisitional system, is not same as the matter of truth.

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