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 represented by 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