Adversary System Flashcards
Standard of proof
the degree or extent to which a case must be proven. This is beyond reasonable doubt for criminal cases, and on the balance of probabilities for civil cases.
Propensity evidence
evidence which demonstrates that the accused has a tendency to commit the type of crime they are accused of. This evidence can include prior convictions.
Circumstantial evidence
evidence which takes the form of a set of circumstances or facts indicating that a certain event has happened, rather than proving a fact directly.
Affidavit
evidence in the form of a written statement of facts, made under oath or affirmation
Timely Resolution of disputes
Trials within the adversary system are heard as one continuous trial or hearing, with the case continuing until there is a finding for one of the parties. There are no breaks to gather more evidence. This assist in minimising delays once a trial has started.
Pre-trial procedures such as committal hearings and directions hearings assist in speeding up processes before and during trials by identifying and resolving some issues before hand, and setting time limits for further stages.
Time limits are places at many says of the criminal pre-trial process by legislation, in an effort to get a case to trial in a timely manner, which is beneficial to both the victim and the accused.
Processes that may hinder:
Lengthy pre-trial procedures, delays in getting a case to trial and increased litigation have added to the delays experienced before disputes are resolved.
Examples how its achieved:
- Committal hearings (hand-up brief method) prevent weak cases from proceeding to trial, thereby saving time for the accused and legal system
- Time limits place on both civil and criminal pre-trial procedures
Entitlement to a fair and unbiased hearing
The rules of evidence and procedure that are followed in a courtroom apply to both parties to a case and ensure that both are treated equally.
Any evidence that might unfairly influence the magistrate, judge or jury, such as hearsay evidence, evidence of bad character or prior convictions is inadmissible.
The existence of an impartial and unbiased judge or magistrate helps to uphold fairness.
Processes that may hinder:
The exclusionary rules, which allow certain categories of evidence to be excluded from adversary trials, may result in some evidence being omitted from a trial that could otherwise be useful in determining the truth of the matter
Examples how its achieved:
-Burden of proof being placed on the party bringing the case
-The rules of evidence and procedure apply equally to both parties in the case
Rules of evidence and procedure ensure that only reliable evidence is able to be led
Effective access to the legal system
All parties charged with a criminal offence will have their case heard by a specialised, expert legal body, which ensures that their case runs according to strict rules of evidence and procedure
If a party feels they have been dealt with unfairly during their hearing or trial, they may be able to establish ground for appeal to a higher, more superior court to consider their case.
Those parties unable to afford legal representation may be eligible for legal aid, which will help to ensure that their case is prepared and presented appropriately
Processes that may hinder:
some parties may be unaware of their legal rights, or the existence of bodies to assist them with the preparation and presentation of their case
Example how its achieved:
- Tribunals such as VCAT for the resolution of of particular, specialised types of civil disputes.
- Alternative dispute resolution methods for civil disputes
- Lawyers and the ability to access legal representation
Must have 3 elements:
- Essential that mechanisms to resolve a dispute exist
- Essential (assumed) that all individuals who want, or need to access these mechanisms will be able to
- Its crucial that individuals have effective access to such mechanism
Evaluate the role of the parties
Strengths:
- Since individuals take complete responsibility for the preparation and presentation of their case, each party has an interest in presenting the best possible evidence and argument to support it.
- Party control is an important feature. The parties are more likely to feel satisfied with the result if they have been able to control and conduct their case. Allows parties to fight their own battles.
Weaknesses:
- Actions of either party may result in delays in the preparation of the case, leading to increased costs.
- As parties are in control, and the determining of what evidence will be introduced to support their case, not all evidence may be introduced and the truth may be disclosed
Role of the judge
Strengths:
- The judge remains impartial, thereby ensuring that each party is treated fairly and without bias.
- The judge is independent of and seperate from the prosecuting authority, guaranteeing impartial and fair treatment.
Weaknesses:
- The expertise of the judge is often under-utilised.
- A judge cannot offer assistance to an unrepresented party
Rules of evidence and procedure
Strengths:
- A single, continuous hearing ensures that the case is seen as a complete event and not a series of disjointed facts.
- Strict rules of evidence maintain consistency in the way in which courts determine the truth
Weaknesses:
- Due to the delays in preparing a case, witnesses may not remember all facts.
- Since some evidence may never be heard in court, the ability of a jury to determine the truth may be limited.
Major Features of the inquisitorial system: Judge
Judge The adjudicator controls the trial process through his or her own investigation of the case. The more active roles include: -investigating the case -defining the issues to be resolved -calls + questions witness -gathering evidence
Major Features of the inquisitorial system: Evidence
Evidence collected by the investigating judge is recorded in written form, and there is more reliance on written evidence in the trial
Major Features of the inquisitorial system: Rules
There are no strict rules of evidence and procedure.
Eg: a witness may give their own version of the facts rather than confining themselves to answering questions. Prior convictions and character evidence are also admissible and the judge can determine their relevance and weight, and emphasis is put on written evidence
Possible reforms of adversary system: Greater investigative role for the judges or magistrate
The judge or magistrate in the adversary system can ask questions and call witnesses, but this is usually done to clear up points made in the proceedings. For example, a judge might call a medical witness to clarify evidence given about someone’s health. This power could be increased to allow a judge to ask questions and call witnesses to ensure that cases are decided correctly - in the interest of fairness and finding the truth.
Possible reforms of adversary system: Reduce delays
The parties could be made to follow the time limitations for the submission of document more carefully. A court officer could be appointed to investigate the causes of delays. However, more court personnel would be needed to deal with the increased number of cases being brought before the courts. This could lead to injustices occurring. Adhering strictly to deadlines could result in the court not being able to get at the truth.
