Unit 4 AOS2a Flashcards
(66 cards)
Adversary System
The adversary system of trial is used in Australia in which two opposing sides try to win the case. Set rules of evidence and procedure must be followed and the judge is an impartial arbitrator
Role of the adversary system of trial
The role of the adversary system is to provide a procedure for both parties to present and resolve their case, in a fair matter. The adversary system operates in both civil and criminal cases.
Features of the Adversary System
- The role of the parties
- The role of the judge
- Standard and burden of proof
- The need for rules of evidence and procedure
- The need for legal representation
The role of the parties
In the adversary system of trial the parties controls their own case and have complete control over decisions about how the case will run as long as rules of evidence and procedure are followed.
The parties are responsible for the following:
- Instigating the proceedings
- Investigating the facts
- Deciding which facts should be brought before the court
- Investigating the law
- deciding whether to have a jury in a civil case
- Choosing to have legal representation
The role of the Judge
Ensuring that the Core processes and procedures are carried out and strict rules of evidence and procedure is followed and each of the parties are treated fairly and equally
The judge or magistrate are responsible for:
- Ensuring rules of evidence and procedure are followed
- Deciding questions of law
- Clarifying issues
- Directing the jury if there is one
- Deciding questions of fact where there is no jury
- Deciding the sanction or remedy
Burden of proof
Relates to the question of which party has to prove the facts of the case. It lies with the person who is bringing the case. In a criminal case it lies with the prosecution. In a civil case it lies with the plaintiff. This means the person bringing the case has to prove that there view of the facts is correct and not the other party’s view.
Standard of proof
Refers to the strength of evidence needed to prove the case. In a criminal case the prosecution must prove the case is beyond reasonable doubt. In a civil case the plaintiff must prove the case on the balance of probabilities.
The need for rules of evidence and procedure
To ensure that both parties are treated fairly and equally.
Rule of Procedure
Provide the framework in which court cases can take place and through which the court will try to bring about a resolution to the case. The hearing/ trial procedure establishes the steps for bringing out the evidence.
Rules of evidence
Each court hearing or trial is governed by rule of evidence that facilitate the fact-finding task of the courts and aim to ensure fair and equal treatment. Evidence is concerned with the proving of facts. Evidence can be: - Oral evidence - a sworn statement ( affidavit) - In a form of an Object - Audio or audiovisual material - circumstantial evidence
The need for Legal Representation
Legal representation are experts who are familiar with the strict rules of evidence and procedure that are essential elements of the adversary system. these experts help to ensure that the parties are able to present their best possible case and to assist in achieving a just outcome
Strength of the adversary system
- Party control allows parties to most likely feel more satisfied with the result if they have been able to control the conduct of their case
- The judge operates as a impartial umpire,judges make their decisions on the facts before them and have no preconceived ideas about the parties
- strict rules of evidence and procedure
Weaknesses of the adversary system
- Party control relies on the parties bringing out all the evidence that is favourable in their case. Therefore there may be vital evidence missed and the court may reach a unfair decision.
- delays
- High cost of proceedings
Major features of the Inquisitorial system
- the role of the parties
- the role of the judge
- burden and standard of proof
- rules of evidence and procedure
- the role of legal representation
Inquisitorial system: The role of the Parties
The judge has control over the case therefore the parties have greatly reduced role. They are required to respond to the directions of the court.
Inquisitorial system: Role of the Judge
Judge takes a more active role in the case. The judges role is:
- Investigating cases
- Defining the issues to be resolved
- Gathering evidence
The judge conducts the investigations an supervises the work of the police, finds and questions witnesses and suspects, orders searches and finds evidence.
Inquisitorial System: Burden and standard of Proof
No formal burden or standard of prod as the judge is the person responsible for bringing evidence and finding out the truth.
Inquisitorial System: Rules of evidence and Procedure
Less reliant on strict rules of evidence and procedure.
Inquisitorial system: Role of Legal representation
Due to the active role of the judge, the role of legal representation is lesser. They assist the judge in finding the truth
Role of the jury
The role of the jury is to listen to the evidence given by both parties, than make a decision on the facts of the case.
Composition of juries
- Selection of jurors
- liability for Jury Service
- A summons for Jury duty
- Jury Pool
Strengths of the jury System
- Decisions made by a cross section of the people
- Involves the general public
- Used over many years and has stood the test of time
Weaknesses of the jury system
- May have difficulty understanding complicated evidence
- Unfamiliar with legal procedure
- May have difficulty reaching a decision
- Unpredictable decisions
Reforms to the jury
- Require Juries to give reasons for there decision
- make juries more representative
- further simplify jury directions
- have a specialist foreperson
- give instructions before the trial
- introduce ‘not proven’ verdicts
- Juries to participate in sentencing
- More technical assistance
- reduce the size of the jury and