2 + 3 - Adversary System

Question 1

List 5 features of the adversary system.

Answer 1

1. Role of the parties
2. Role of the judge
3. Burden and standard of proof
4. Rules of evidence and procedure
5. Need for legal representation

Question 2

Describe the roles of the parties.

Answer 2

Parties have full control of their case, including:

• instigating proceedings
  (sueing in civil, pleading in criminal)
• preparation for trial
  (gathering evidence)

Question 3

Evaluate the roles of the parties.

Answer 3

+ party satisfaction because they have control over their case
+ fulfills a sense of competition

• adversarial nature creates further animosity
• parties omission of relevant evidence may mean the truth does not emerge

Question 4

Describe the role of the judge

Answer 4

Judge / magistrate acts as an impartial and independent third party.

They conduct the court case:

• ensures rules of evidence and procedure are followed
• directs jury
• decides on sanction or remedy

Question 5

Evaluate the role of the judge.

Answer 5

+ independence and impartiality creates justice / fairness

• most qualified person had an inactive and limited role
• cannot assist unrepresented parties (not true equality / justice)

Question 6

Describe the burden and standard of proof

Answer 6

For criminal
Burden: lies with prosecution
Standard: beyond reasonable doubt

For civil
Burden: lies with plaintiff
Standard: balance of probabilities

Question 7

Evaluate the burden and standard of proof.

Answer 7

+ party bringing the case has the burden of proof , this is fair

• emphasis is on winning the case, rather than the discovery of the truth and justice

Question 8

Describe the rules of evidence and procedure

Answer 8

The rules of evidence and procedure outline the steps and order for presenting evidence.

• admissible evidence (oral evidence, affidavits)
• inadmissible evidence (hearsay, written statements, prior convictions)

Question 9

Evaluate the rules for evidence and procedure

Answer 9

+ these rules promote fairness, equality and consistency among parties
+ reliability of evidence means the truth should emerge

• witnesses giving oral evidence may be intimidated
• truth may not emerge if vital evidence is inadmissible
• oral evidence and cross examination create delays

Question 10

Describe the need for legal representation

Answer 10

Legal representatives know the strict rules for evidence and procedure, have expertise.

Are necessary for parties to present the best case possible and to examine / cross-examine witnesses effectively.

Question 11

Evaluate the need for legal representation

Answer 11

+ low-income earners are eligible for legal aid
+ ensures equality and a level playing field for parties

• legal representatives are expensive
• quality of representation depends on price, therefore not truly equal.