Chapter 7- The Adversary System Flashcards
What are some strengths of the Adversary System?
Judge: The judge acts as an impartial and independent adjudicator who is responsible for overseeing the conduct of the case and ensuring that both parties are treated fairly.
Burden and Standard of Proof: The burden of proof is consistent with community standards of fairness, the onus is on the person bringing forward the case.
Legal Representation: Each party has the right to be equally represented, which maintains fairness, as individuals can seek expert and objective advice.
What are the key features of the Adversary System?
1-Role of the Judge: Ensures that both parties are treated fairly, to be an impartial umpire and follow rules of evidence and procedure
2-Role of the Parties: The parties have full control of their case, including the preparation for trial and the evidence led in trial.
3-Role of Legal Representation: If a person does not have legal representation, they may be significantly disadvantaged
4-Rules of Evidence and Procedure: Ensures that both parties have an equal opportunity to present their case and that all evidence is presented.
5-Burden and Standard of Proof: BOP is who has to prove the case. SOP is the degree of certainty to which the facts have to be proven.
What are some weaknesses of the Adversary System?
Judge: It has been suggested that the expertise and experience of the judge is not fully utilised as they are merely an impartial umpire and not allowed to interfere with the proceedings
Parties: The system places the control in the hands of the parties, and the system assumes both parties are in the position to do so, when in reality one party may have more resources then the other.
Legal Representation: The parties are responsible for organising their own legal representation, and a party without representation may be disadvantaged in trial.
What are the major features of the Inquisitorial System of trial?
- Reliance on legislation rather then precedent
- No rules that exclude evidence
- Role of the Judge is more significant, they conduct the trial and the examination of the witnesses
- More then one judge, no jury
Compare the Inquisitorial and Adversary systems of trial
- Two systems of trial serve different purposes (adversary=determining the guilt, inquisitorial=confirm the results of investigation)
- Role of the Judge: adversary=mainly to umpire disputes between parties, inquisitorial=collects the evidence, call and question witnesses
What are some possible reforms to the Adversary System of trial?
- Greater investigative role for the judge or magistrate
- Greater use of written statements
- More informal conduct of the trial
- Greater use of tribunals
- Allowing witnesses to tell their stories without interruptions (questions, etc)
- Greater availability of Legal Aid
Evaluate the elements of an effective legal system
F- the judge acts as an impartial umpire, each party has the right to prepare their own case, presumption of innocence, rules of evidence allows the most reliable information to be presented . However, costs can limit an individual’s entitlement to a fair and unbiased hearing (cost of legal representation, costs regarding preparation and presentation of a case)
A- for some people, the costs of legal representation may be restrictive, although it is not compulsory, one would be severely disadvantaged if they don’t have someone representing them.
T- the trial is heard as one long, continuous trial, once it commences it does not stop until a verdict is reached. However, the pre trial procedures can be lengthy and can add days to the trial.
