The Adversary System

To provide a procedure for disputing parties to present and resolve their cases in as fair a manner as possible

Controlled by strict rules of evidence and procedure

Role of the Adversary System

Major features of the adversary system Role of the parties Role of the judge Standard and burden of proof Need for legal representation Need for rules of evidence and procedure

Features of the Adversary System

Party Control - Each party controls their own case (within the rules of evidence and procedure)

Parties are responsible for: Instigating the proceedings – the person who

believes they have been wronged (plaintiff is civil, prosecution in criminal) brings the case to court

Investigating the facts

Role of the parties

Parties are also responsible for: Deciding which facts to bring to court –

each side decides which evidence they wish to present to court (although prosecution must disclose all evidence even if it is not beneficial)

Investigating the law that is relevant to the case

Role of the parties

Parties are also responsible for: Deciding whether to have a jury in a civil case Choosing whether to have legal

representation

Role of the parties

Party control allows the parties to feel that they are in control of the situation and are responsible for the outcome

Satisfies the competitive spirit

Gives people the opportunity to fight to win their case – leads to a sense of satisfaction

Role of the parties

In civil cases – it means that cases can be resolved

But it makes the process expensive – which means that not everyone has effective access to mechanisms to resolve disputes

The elements

Impartial umpire - Ensures the court processes and procedures are carried out according to the rules of evidence and procedure

May only ask questions to clarify matters

Minimises unfairness to either party

Role of the Judge

Decides: Admissibility of evidence Questions of law

Directs the jury whether there is one

Decides the outcome of a case where there is no jury

Role of the judge

For the adversary system to work effectively the judge must be impartial

Essential that the decision maker (judge or jury) is independent from the case Judge has no prior knowledge of the case

before hearing the evidence presented

Role of the Judge

The impartial, independent judge ensures a fair and unbiased hearing

The elements

Burden of proof lies with the party bringing the case to court

Criminal – prosecution

Civil – plaintiff

Person who brings the case must prove the other party was in the wrong

Burden and Standard of Proof

Standard of proof – the strength of evidence needed to prove the case

Criminal – beyond reasonable doubt

Civil – on the balance of probabilities

Burden and Standard of Proof

Essential elements of the adversary system

Burden of proof indicates who must begin the battle

Standard of proof indicates the strength of proof required to decide the winner

Burden and Standard of Proof

Burden and standard of proof ensure a fair and unbiased hearing

The elements

Legal representatives – prepare the case on behalf of the parties

Legal representatives are experts – are familiar with rules of evidence and procedure

Help to ensure that the parties are able to present their best possible case Assists in achieving a just outcome

Need for legal representation

Bringing out the truth and showing your case in the best light depends on being legally represented – with the best possible lawyer

Presenting a case without legal representation is very difficult and can result in an unjust outcome

Need for legal representation

For the adversary system to work effectively there needs to be equal representation

Parties should have an equal opportunity to present their cases

Truth should be brought out through both sides bringing their evidence and cross examination by the other side

Need for legal representation

If one party is better represented than the other, this could lead to an unfair advantage and possibly an incorrect result – so it will not be a fair and unbiased hearing

The elements

A person who can afford a more competent barrister is more likely to win than a person representedby a less experienced barrister this means that there is not effective access for everyone

The elements

Evidence is concerned with proof of facts Rules of evidence aim to ensure fair and

equal treatment

Need for rules of evidence and procedure

Evidence can be Oral – given by witnesses Sworn statements (called an affidavit) Objects – murder weapons, photos diagrams, tape-

recording Circumstances and facts (called circumstantial

evidence)

Need for rules of evidence and procedure

Adversary system relies more heavily on oral evidence given by witnesses than documentary evidence

Need for rules of evidence and procedure

Rules of evidence are primarily for the protection of the parties

Ensure that Parties are treated fairly Jury is not distracted by irrelevant material Unreliable or illegally obtained evidence is not heard by

the court Evidence is not unduly prejudicial to the defence Prior convictions are not admissible

Need for rules of evidence and procedure

Rules of procedure provide a framework in which court cases take place

Provide the way in which the court will try to bring about a resolution

Procedures are aimed at treating both sides fairly

Create at atmosphere of formality so that the decision is followed

Need for rules of evidence and procedure

Assist the parties in achieving a just outcome

Rule of evidence keep the contest fair Rules of procedure should assist the truth to

emerge

Need for rules of evidence and procedure

Hearsay evidence Prior convictions (unless used as propensity

evidence) Irrelevant evidence Opinion Evidence obtained illegally Privileged information

Evidence not admissible

Only allow certain types of evidence to ensure a fair and unbiased hearing

Rules of procedure help assist timely resolution of disputes

The elements

The jury system is NOT a feature of the adversary system – it is an entirely

different system!

Juries