The Adversary System Part II Chapter 7

Learning Intention Success Criteria Explain the processes and procedures for the resolution of criminal cases and civil disputes Evaluate their operation and application Evaluate the effectiveness of the legal system. Success Criteria I can explain: The strengths and weaknesses of the adversary system of trial The major features of the inquisitorial system of trial Possible reforms to the adversary system of trial

Consolidate and Review In order for the legal system to be effective there are three essential elements that must be present. These elements are: Entitlement to a Fair and unbiased hearing Effective Access to the legal system Timely resolution of disputes (both criminal and civil)

What are the 5 Features of the Adversary System of Trial? Role of the parties Role of the judge Legal representation Rules of evidence and procedure Burden and standard of proof

Strengths and weaknesses of the adversary system Feature Strengths Weaknesses Role of the Parties Since individuals take complete responsibility for the preparation and presentation of their case, each party has an interest in presenting the best possible evidence and argument to support it. Actions of either party may result in delays in the preparation of a case, leading to increased costs. Parties may be deterred from exercising their rights due to the costs associated with preparing a case. As the parties are responsible for determining what evidence will be introduced to support their case, not all the evidence may be introduced and the truth may not be disclosed.

Strengths and weaknesses of the adversary system Feature Strengths Weaknesses Role of the Judge The judge remains impartial, thereby ensuring that each party is treated fairly and without bias. The judge is independent of and separate from the prosecuting authority, guaranteeing impartial and fair treatment. The expertise of the judge may not be fully utilised. A judge cannot offer any assistance to an unrepresented party. Legal Representation Each party has the right to be legally represented (at their own cost). This helps to maintain fairness, as individuals can seek expert and objective advice. Legal representation ensures logical and reasoned argument. The cost of legal representation may deter some individuals from taking action. Any unrepresented party will be engaged in a less-than-equal contest.

Strengths and weaknesses of the adversary system Feature Strengths Weaknesses Rules of Evidence and Procedure A single continuous hearing ensures that the case is seen as a complete event and not a series of disjointed facts. Strict rules of evidence maintain consistency in the way in which courts determine the truth. The process of examination and cross-examination is fair to both parties, as it enables evidence to be tested for truth. Rules of procedure mean that each party is treated in a consistent and fair manner. Due to the delays in preparing cases, witnesses may not remember all facts. Since some evidence may never be heard in court, the ability of a jury to determine the truth may be limited. Witnesses can only respond to questions asked and may not be allowed to tell their whole story. Juries in lengthy trials, heard as a continuous hearing, may not be able to remember all the evidence or maintain concentration. Burden and Standard of Proof The onus is on the individual bringing the allegation to substantiate their claim. Every individual is treated as equal until an allegation is proven. The system is seen as being more concerned with proof than with determining the truth.

The Inquisitorial System of Trial 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 defence. The system of trial used in many European countries such as France, and in some Australian courts, such as the Family Court and Coroner’s Court Based on the idea that a trained professional investigates both sides of the matter and has access to all the information about it so the truth will be discovered. Rather than being a contest, the inquisitorial system is an investigation

Role of the Parties Greatly reduced role – can have input via statements and making requests of the judges but they do not control proceedings or evidence. Better Burden of proof is taken off parties, so it is less stressful and expensive for them Worse Parties may feel at the mercy of the judges and therefore less satisfied with the decision.

Role of the Judge The judge exercises almost complete control over the case. They collect and examine evidence, choose which witnesses to hear from and decide both the relevant law and the facts. Better Judges expertise is used Parties are not able to hide or manipulate unfavourable evidence. Worse The judge may lose some of their impartiality, being so involved in the investigation The judge does not have to investigate angles the parties think are important.

Rules of Evidence and Procedure Rules of evidence are almost non-existent: hearsay, prior convictions and written evidence are all allowed. Rules of procedure are not necessary as the judge conducts proceedings. Better Parties do not have to navigate complex and stressful procedures. All relevant evidence is taken into account Worse Evidence such as prior convictions may be unfairly prejudicial to the defendant Documentary and hearsay evidence cannot be tested thoroughly.

Burden and Standard of Proof There is no formal burden of proof as the judge investigates all angles of the case simultaneously. There must still be significant evidence to show that the defendant was at fault. Better The injured party does not need to bear the burden of conducting the case Unfounded criminal or civil claims should still not succeed. Worse Because the defence’s case is examined before fault has been proven, the motion that the defendant is innocent until proven guilty is not felt strongly.

Need for Legal Representation Due to the increased role of the judge, legal representation often plays a minor part in court proceedings. Legal representation may assist the judge, however, to find the truth. They can also question witnesses and address court in assisting the judge to discover the truth. Better Party’s success does not rest with their legal representation, so it decreases costs and doesn’t benefit wealthier parties as much Worse Parties cannot choose the person they trust the most to argue for them to given them the best chance for success

Case studies: France Germany In French cases, there are two judges. The “Juge d’instruction” (investigating judge) conducts the investigation, supervises police, and finds and questions subjects. They also compile a “dossier” (documentary record) to present to the “residing judge”. The residing judge will oversee the trial, and call and question witnesses. Germany In Germany, there is a panel of three to five judges who sit and are presented with evidence. “Lay judges” will assist the panel of judges in coming to a verdict and handing down a sentence. Judges can call and question witnesses. The prosecutor is known as the “State Attorney” and sits on the same level as the judges, while the accused and their compulsory legal representation sit on a lower level. The State Attorney and defence counsel are able to give a closing address to court. There is no strict doctrine of precedent, and some extra types of evidence, such as hearsay, are admissible. The standard of proof in both criminal and civil matters is beyond reasonable doubt.

Possible reforms to the adversary system Greater investigative role for the magistrate or judge Ask questions and call witnesses; however, could be seen as being biased Greater use of witness statements No need to call witnesses; however, may not allow for cross-examination to bring out falsehoods Could also lead to increased fees as statements have to be drafted More informal conduct of the trial Witnesses tell their own story without interruption May feel more comfortable Reduce delays Time limitations or appointment of court officer to investigate causes of delay Making of indemnity costs orders Informal approach to pre-trial procedures