Adversarial system

Last updated

The adversarial system, adversary system, accusatorial system [1] or accusatory system [2] 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. [3] [4] [5] 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.

Contents

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

Basic features

Adversarial systems are considered to have three basic features. The first is a neutral decision-maker such as a judge or jury. The second is presentation of evidence in support of each party's case, usually by lawyers. The third is a highly structured procedure. [6]

The rules of evidence are 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 deemed to not be trustworthy, or irrelevant to the legal issue at hand. [7] 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.

Parties

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. 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." [8]

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 United States 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. [9] 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 (1963).

Criminal proceedings

In criminal adversarial proceedings, an accused is not compelled to give evidence. Therefore, they may not be questioned by a prosecutor or judge unless they choose to be; 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.

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 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 or her right not to testify, and the jury must be so instructed if the defendant requests.

By contrast, while defendants in most civil law systems can be compelled to give statements, these statements are not subject to cross-examinations by the prosecution and are not given under oath. This allows the defendant to explain their 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 judge who questions the defendant. The concept of "cross"-examination is entirely due to adversarial structure of the common law.

Comparison with inquisitorial systems

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.

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. Plea bargains are becoming more common in 27 civil law countries. [10]

See also

Related Research Articles

In United States law, an Alford plea, also called a Kennedy plea in West Virginia, an Alford guilty plea, and the Alford doctrine, is a guilty plea in criminal court, whereby a defendant in a criminal case does not admit to the criminal act and asserts innocence, but accepts imposition of a sentence. This plea is allowed even if the evidence to be presented by the prosecution would be likely to persuade a judge or jury to find the defendant guilty beyond a reasonable doubt. This can be caused by circumstantial evidence and testimony favoring the prosecution, and difficulty finding evidence and witnesses that would aid the defense.

<span class="mw-page-title-main">Jury trial</span> Type of legal trial

A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.

A plea bargain is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or nolo contendere. This may mean that the defendant will plead guilty to a less serious charge, or to one of the several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.

In law, a plea is a defendant's response to a criminal charge. A defendant may plead guilty or not guilty. Depending on jurisdiction, additional pleas may be available, including nolo contendere, no case to answer, or an Alford plea.

<span class="mw-page-title-main">Sixth Amendment to the United States Constitution</span> 1791 amendment enumerating rights related to criminal prosecutions

The Sixth Amendment to the United States Constitution sets forth rights related to criminal prosecutions. It was ratified in 1791 as part of the United States Bill of Rights. The Supreme Court has applied all but one of this amendment's protections to the states through the Due Process Clause of the Fourteenth Amendment.

Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of the defendant. Criminal procedure can be either in form of inquisitorial or adversarial criminal procedure.

An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an impartial referee between the prosecution and the defense.

<span class="mw-page-title-main">Discovery (law)</span> Pretrial procedure in common law countries for obtaining evidence

Discovery, in the law of common law jurisdictions, is a phase of pretrial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from other parties by means of methods of discovery such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from nonparties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. Conversely, a party or nonparty resisting discovery can seek the assistance of the court by filing a motion for a protective order.

<span class="mw-page-title-main">Committal procedure</span> Replacement of earlier grand jury process except in US

In law, a committal procedure is the process by which a defendant is charged with a serious offence under the criminal justice systems of all common law jurisdictions except the United States. The committal procedure replaces the earlier grand jury process.

<span class="mw-page-title-main">Judiciary of Israel</span> Part of the article of the series of government of Israel

The judicial system of Israel consists of secular courts and religious courts. The law courts constitute a separate and independent unit of Israel's Ministry of Justice. The system is headed by the President of the Supreme Court and the Minister of Justice.

<span class="mw-page-title-main">Trial</span> Coming together of parties to a dispute, to present information in a tribunal

In law, a trial is a coming together of parties to a dispute, to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, which may occur before a judge, jury, or other designated trier of fact, aims to achieve a resolution to their dispute.

A system for trial by jury was first introduced in 1923 under Prime Minister Katō Tomosaburō's administration. Although the system generated relatively high acquittal rates, it was rarely used, in part because it required defendants to give up their rights to appeal the factual determinations made. The system lapsed by the end of World War II. In 2009, as a part of a larger judicial reform project, laws came into force to introduce citizen participation in certain criminal trials by introducing lay judges. Lay judges comprise the majority of the judicial panel. They do not form a jury separate from the judges, as in a common law system, but participate in the trial as inquisitorial judges next to professional judges in accordance with the civil law legal tradition – similar to the French cour d'assises – who actively analyze and investigate evidence presented by the defense and prosecution.

The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea. The Court Organization Act, which was passed into law on 26 September 1949, officially created a three-tiered, independent judicial system. The revised Constitution of 1987 codified judicial independence in Article 103, which states that, "Judges rule independently according to their conscience and in conformity with the Constitution and the law." The 1987 rewrite also established the Constitutional Court, the first time that South Korea had an active body for constitutional review.

Strickland v. Washington, 466 U.S. 668 (1984), was a landmark Supreme Court case that established the standard for determining when a criminal defendant's Sixth Amendment right to counsel is violated by that counsel's inadequate performance.

A criminal defense lawyer is a lawyer specializing in the defense of individuals and companies charged with criminal activity. Some criminal defense lawyers are privately retained, while others are employed by the various jurisdictions with criminal courts for appointment to represent indigent persons; the latter are generally called public defenders. The terminology is imprecise because each jurisdiction may have different practices with various levels of input from country to country. Some jurisdictions use a rotating system of appointments, with judges appointing a private practice attorney or firm for each case.

Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. They have also been increasing in frequency—they rose from 84% of federal cases in 1984 to 94% by 2001. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. Game theory has been used to analyze the plea bargaining decision.

A citizen's right to a trial by jury is a central feature of the United States Constitution. It is considered a fundamental principle of the American legal system.

The general framework and the body of Hong Kong’s criminal laws were in fact imported from the United Kingdom when Hong Kong was first become a Crown colony in 1842 under the Treaty of Nanking. Even nowadays, after the handover and years of development and modification, these laws are still very similar to those in the UK. Just like in Britain, criminal laws in Hong Kong are entailed in different statutory law and common law.

<span class="mw-page-title-main">United States constitutional criminal procedure</span> United States constitutional criminal procedure

The United States Constitution contains several provisions regarding the law of criminal procedure.

The Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence."

References

  1. Malloy v. Hogan
  2. "Accusatory System v. The Inquisitorial System - Procedural Truth v. Fact? (From Criminal Evidence Law Reform - Proceedings, P 83-91, 1981 - See NCJ-84738) | Office of Justice Programs".
  3. Hale, Sandra Beatriz (July 2004). The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter. John Benjamins. p. 31. ISBN   978-1-58811-517-1.
  4. Richards, Edward P.; Katharine C. Rathbun (1999-08-15). Medical Care Law. Jones & Bartlett. p. 6. ISBN   978-0-8342-1603-7.
  5. Care, Jennifer Corrin (2004-01-12). Civil Procedure and Courts in the South Pacific. Routledge Cavendish. p. 3. ISBN   978-1-85941-719-5.
  6. Coughlan, Stephen G. (1993). "The "Adversary System": Rhetoric or Reality?*". Canadian Journal of Law and Society / La Revue Canadienne Droit et Société. 8 (2): 139–170. doi:10.1017/S0829320100003203. S2CID   147489274.
  7. Power, Mark C; Larocque, Francois; Bosse, Darius (2012). "ConstitutionalLitigation, the Adversarial System and some of its Adverse Effects" (PDF). Review of Constitutional Studies. 17 (2): 1. Retrieved 11 January 2023.
  8. P Devlin, The Judge (Oxford University Press, 1970) 60-1
  9. "CRS/LII Annotated Constitution Sixth Amendment".
  10. Bicek, Rudolf (January 2022). "Plea bargaining: a new trend in European criminal proceedings".

Further reading