adversarial system
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The adversarial system or adversary system is a legal system used in the
common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used among legal profe ...
countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a
judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a Judicial panel, panel of judges. A judge hears all the witnesses and any other Evidence (law), evidence presented by the barristers or s ...

judge
or
jury A jury is a sworn body of people (the jurors) convened to render an impartial Impartiality (also called evenhandedness or fair-mindedness) is a principle of justice holding that decisions should be based on objectivity (philosophy), objective ...

jury
, who attempt to determine the truth and pass judgment accordingly. It is in contrast to the
inquisitorial system An inquisitorial system is a legal system in which the court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out th ...
used in some
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
systems (i.e. those deriving from
Roman law Roman law is the system of , including the legal developments spanning over a thousand years of , from the (c. 449 BC), to the ' (AD 529) ordered by Eastern Roman emperor . Roman law forms the basic framework for , the most widely used legal s ...
or the
Napoleonic code The Napoleonic Code (, lit. "Code Napoleon"), officially the Civil Code of the French (; simply referred to as ) is the French French (french: français(e), link=no) may refer to: * Something of, from, or related to France France (), of ...
) where a judge investigates the case. The adversarial system is the two-sided structure under which
criminal trial Criminal procedure is the adjudication Adjudication is the legal process by which an arbitration, arbiter or judge reviews evidence (law), evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come ...
courts operate, putting the prosecution against the defense.


Basic features

As an accused is not compelled to give evidence in a
criminal In ordinary language, a crime is an unlawful act punishable by a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper) ...

criminal
adversarial proceeding, they may not be questioned by a prosecutor or judge unless they choose to do so. However, should they decide to testify, they are subject to
cross-examination In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Republic of Ireland, Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examin ...
and could be found guilty of
perjury Perjury is the intentional act of swearing a false oath Traditionally an oath (from Anglo-Saxon The Anglo-Saxons were a cultural group who inhabited England England is a Countries of the United Kingdom, country that is part of th ...
. As the election to maintain an accused person's
right to silence The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world' ...
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 In court proceedings, a defendant is a person A person (plural people or persons) is a being that has certain capacities or attributes such as reason Reason is the capacity of consciously applying logic by Logical consequence, drawing conclu ...
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 is the legal requirement that the state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspa ...
, or
fundamental justice In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as ...
. Such judges decide, often when called upon by counsel rather than of their own motion, what
evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, 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 discretionJudicial discretion is the power of the judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of court A court is any person or institution, of ...
would actually pave the way to a biased decision, rendering obsolete the judicial process in question—
rule of law The rule of law is defined in the ''Oxford English Dictionary The ''Oxford English Dictionary'' (''OED'') is the principal historical dictionary of the English language English is a West Germanic languages, West Germanic language ...

rule of law
being illicitly subordinated by
rule of man Rule of man is absence of rule of law The rule of law is defined in the '' Oxford English Dictionary'' as " e authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) ...
under such discriminating circumstances. The
rules of evidence The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of ...
are also developed based upon the system of objections of adversaries and on what basis it may tend to prejudice the
trier of fact A trier of fact, or finder of fact, is a person, or group of persons, who determines what fact A fact is something that is truth, true. The usual test for a statement of fact is verifiability—that is whether it can be demonstrated to corre ...
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 "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 The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
in Article 6 requires these features in the legal systems of its signatory states. The
right to counsel Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyer A lawyer or attorney is a person who practices law, as an advocate, attorney at lawAttorney at law or attorney-at-law, usually abbreviated in ever ...
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 gave suspects of felonies the formal right to have legal counsel (the Prisoners' Counsel Act 1836), although in practice English courts routinely allowed defendants to be represented by counsel from the mid-18th century. During the second half of the 18th century advocates like
Sir William Garrow Sir William Garrow (13 April 1760 – 24 September 1840) was an English barrister, politician and judge known for his indirect reform of the advocacy system, which helped usher in the adversarial system, adversarial court system used in most com ...

Sir William Garrow
and
Thomas Erskine, 1st Baron Erskine Thomas Erskine, 1st Baron Erskine, (10 January 175017 November 1823) was a British lawyer and politician. He served as Lord Chancellor, Lord High Chancellor of Great Britain between 1806 and 1807 in the Ministry of All the Talents. Background a ...
helped usher in the adversarial court system used in most common law countries today. 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 constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...

Constitution
and in state cases at least since the end of the
Civil War A civil war, also known as an intrastate war in polemology, is a war between organized groups within the same Sovereign state, state (or country). The aim of one side may be to take control of the country or a region, to achieve independenc ...
, 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 The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America The United States of America (USA), commonly known as the United States (U.S. or US), or America, is a coun ...

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'', . 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 An allocution, or allocutus, is a formal statement made to the court by the defendant who has been found guilty prior to being sentenced. It is part of the criminal procedure in some jurisdictions using common law. Concept An allocution allo ...
of her or his crime; an obviously false confession will not be accepted even in common law courts. By contrast, in an inquisitorial 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 A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceedings, whereby the prosecutor A prosecutor is a legal representative of the prosecution in states with either the common law In law, common law (also known ...
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. In some adversarial legislative systems, the court is permitted to make
inference Inferences are steps in reasoning, moving from premises to logical consequences; etymologically, the word ''wikt:infer, infer'' means to "carry forward". Inference is theoretically traditionally divided into deductive reasoning, deduction and i ...

inference
s on an accused's failure to face
cross-examination In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Republic of Ireland, Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examin ...
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. The criticism reflects the idea that if the accused can be inferred to be guilty by exercising their right to silence, it no longer confers the protection intended by such a right. 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. Lord Devlin in ''The Judge'' said: "It can also be argued that two prejudiced searchers starting from opposite ends of the field will between them be less likely to miss anything than the impartial searcher starting at the middle."P Devlin, ''The Judge'' (Oxford University Press, 1970) 60-1


Comparisons with the inquisitorial approach

There are many 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 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. Proponents of inquisitorial justice dispute these points. They point out that many cases in adversarial systems, and most cases in the United States, are actually resolved by
plea bargain A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceedings, whereby the prosecutor A prosecutor is a legal representative of the prosecution in states with either the common law In law, common law (also known ...
or settlement. Plea bargain as a system does not exist in an inquisitorial system. Many legal cases in adversarial systems, and most in the United States, do not go to trial, which may lead to 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 in 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.


See also

*
Adversarial process An adversary is generally considered to be a person, group, or force that opposes and/or attacks. Adversary may also refer to: * Satan Satan, (''śāṭān''), meaning "adversary"; grc, ὁ σατανᾶς or σατάν (''ho satanas'' or ...
* Adversary evaluation * Exclusionary rule * Parallel thinkingdescribed as a systemic alternative


References


Further reading

* {{DEFAULTSORT:Adversarial System Judiciaries Legal systems