5/11/2021 Adversarial system - Wikipedia

Adversarial system
The adversarial system or adversary system is a legal system used in the common law countries
where two advocates represent their parties' case or position before an impartial person or group of
people, usually a judge or jury, who attempt to determine the truth and pass judgment
accordingly.[1][2][3] It is in contrast to the inquisitorial system used in some civil law systems (i.e. those
deriving from Roman law or the Napoleonic code) where a judge investigates the case.

The adversarial system is the two-sided structure under which criminal trial courts operate, putting the
prosecution against the defense.

Contents
Basic features
Comparisons with the inquisitorial approach
See also
References
Further reading

Basic features
As an accused is not compelled to give evidence in a 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 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 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, 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.
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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 "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 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 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 and Thomas Erskine, 1st Baron Erskine 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 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.[4] 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, 372 U.S. 335 (https://supreme.justia.com/cases/federal/us/372/335/)
(1963).

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 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 bargaining 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 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 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.
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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."[5]

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 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
Adversary evaluation
Exclusionary rule
Parallel thinking – described as a systemic alternative

References
1. Hale, Sandra Beatriz (July 2004). The Discourse of Court Interpreting: Discourse Practices of the
Law, the Witness and the Interpreter (https://books.google.com/books?id=HVwg_sQ5a5UC&q=%22a
dversarial+system%22&pg=PA31). John Benjamins. p. 31. ISBN 978-1-58811-517-1.
2. Richards, Edward P.; Katharine C. Rathbun (1999-08-15). Medical Care Law (https://books.google.c
om/books?id=6FvwvJ-sJiAC&q=%22adversarial+system%22&pg=PA6). Jones & Bartlett. p. 6.
ISBN 978-0-8342-1603-7.

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3. Care, Jennifer Corrin (2004-01-12). Civil Procedure and Courts in the South Pacific (https://books.go
ogle.com/books?id=fbuuXuZjceMC&q=%22adversarial+system%22&pg=RA1-PA8). Routledge
Cavendish. p. 3. ISBN 978-1-85941-719-5.
4. "CRS/LII Annotated Constitution Sixth Amendment" (https://www.law.cornell.edu/anncon/html/amdt6f
rag7_user.html#amdt6_hd36).
5. P Devlin, The Judge (Oxford University Press, 1970) 60-1

Further reading
Kagan, Robert A. (September 2003). Adversarial Legalism: The American Way of Law (http://www.h
up.harvard.edu/catalog.php?isbn=9780674012417). Cambridge, MA: Harvard University Press.
ISBN 9780674012417.

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