the adversary system Flashcards
define the adversary system.
a system of administering justice in a court where two opposing parties present legal arguments to an independent judge who administers strict rules of evidence and law.
what are the features of the adversary system?
- two opposing parties
- an independent judge
- strict rules of evidence and procedure.
what are the responsibilities of the parties?
- initiate proceedings
- investigate issues of fact and law
- determine evidence and witnesses to be used
- cross - examination
- determine issues to be brought before the court
criminal case / what is the role of the prosecution?
has the burden of proof to prove guilt beyond resonable doubt.
criminal case / what is the role of the defendant?
presumption of innocence, cast doubt to achieve an acquittal.
civil case/ what is the role of the plaintiff?
to prove on the balance of probabilities that the defendant has committed a civil wrong (liability) and the extent of any losses (damages).
civil case / what is the role of the defendant?
rebut the evidence presented by the plaintiff.
what is the overall role of the judge?
determiner of law - enforcement of a legal rule of evidence or procedure.
determiner of fact (if no jury present) - deciding on the guilt or innocence of the accused; setting the period of imprisonment.
role of the judge / pre trial:
- hears bail applications
- decides if there is a prima facia case at a preliminary hearing
what does prima facie mean?
based on the primary facts of the case is there sufficient evidence to proceed to trial or judgement.
role of the judge / trial:
- oversees the arraignment
- enforces the rules of evidence and procedure
- if no jury - decides the verdict of guilty or not guilty
- if jury - oversees the empanelling of jurors (advises them on issues of law).
when is a judge disqualified?
a judge is disqualified if they have a vested interest in its outcome or a close relationship with a participant in the case.
role of the judge / post trial:
- sits in the appellate court
- hears submissions from the prosecution and defence before imposting a sanction at the sentencing hearing.
what are the underlying principles of the adversary system?
- rule of law: equality before the law
- natural justice: right to a fair trial
- judicial independence: a judge must not favour either party.
what are the legal rights?
- right to remain silent
- presumption of innocence
- right to know the case against you
- right to present your own case
- right to appeal
