Adversary System/ Inquisitorial System Flashcards
Adversary System (Parties)
- The Adversary system places a heavy emphasis on party control, where the parties are responsible for instigating the proceedings, as well as preparing and presenting the case. This includes such things as the use of witnesses and the questioning processes and the choice as to what evidence is used.
- The adversary system may allow parties to be content and satisfied with the result, as they are better able to partake in the preparation and presentation of the case. However, this may prevent all forms of evidence from being presented (e.g. incriminating and exonerating evidence).
Adversary System (Judge)
- The Adversary system does not place a heavy emphasis on the role of the judge, as it plays the role of a more ‘independent umpire’. It may not favour either party, as it assures that the strict rules of evidence and procedure are applied, clarifies areas of uncertainty and answers to question of law.
- The adversary system uses the third party to officiate the case, and allows the parties to navigate the proceedings. However, as the third party plays a minimal role and does not employ its knowledge and experience, it is a waste of resources.
Adversary System (Legal Representation)
- The Adversary system requires that both parties have some form of legal representation in order to properly prepare and present a case, as well as abide by the rules of evidence and procedure, however, it is possible to self-represent. Therefore, the role of legal representation in the adversary system is a highly active one, with representatives taking a great deal of control over the legal arguments chosen for submission, the evidence and witnesses prepared to support those arguments, and the way in which the submissions are made during trial. As the third party plays a minor role in this system of trial, the legal representation becomes much more vital.
- The adversary system may not make the most accessible form of trial, as it may be too expensive and legal aid may be hard to obtain due to budget restraints. And as it relies on legal representation, the party with the best lawyers may ‘win’ the case, even if they are guilty or not in the right. However, the use of legal representation may lead to a more efficient proceeding as they are knowledgeable on the procedures of the court.
Adversary System (Rules of evidence and Procedure)
• The Adversary system adheres to strict rules of evidence and procedure, which provide framework for an equitable treatment of parties. Specifically, ‘procedure’ refers to how the hearing is run (E.G. Three processes of examining a witness) and ‘evidence’ refers to which evidence is admissible or inadmissible in a court. These rules bring about a structure in which bring about a resolution to the case.
Adversary System (Burden and Standard of Proof)
- The Adversary system involves the burden or onus of proof being on the prosecutor or claimant with the standard of proof being ‘beyond reasonable doubt’ for criminal cases, and ‘a balance of probabilities’ for civil cases. In addition to this, there is a presumption of innocence, whereby, the defending party will be considered innocent until the prosecution or claimant can prove otherwise.
- The adversary system allows for a proper standard of proof, where it creates a higher standard of proof, which may lead to better results.
Inquisitorial System (Parties)
- The Inquisitorial system does not place such a heavy emphasis on party control. In fact, it is far more passive and reactive, rather than active. Primarily, in this system, the role of the party is to assist the judicial officer and answer questions regarding the case. They also have no control as to what evidence is prepared and presented, regardless of evidence is gathered, this may reduce some of the inequities present between parties and place it in the control of the third party.
- The inquisitorial system may not result in party satisfaction as they have less of an involvement in the case. However, as the third party holds a greater level of control of the case, it may result in a more equitable outcome for the parties involved.
Inquisitorial System (Judge)
• The Inquisitorial system places a very heavy emphasis of the third party, working to better employ the knowledge and skills of the judicial officer. The judge has far more control in the inquisitorial system whereby they investigate incriminatory and exonerating evidence on their own terms with access to all evidence and witnesses at the behest of the judge, enhancing the prospect for the truth to be discovered. It essentially undertakes many of the roles of the legal representative and the parties, as it prepares evidence.
• The inquisitive system places a greater emphasis on the third party, and essentially gives it close to ultimate power over the preparation and decision of the case. This may lead to forms of
corruption due to political or third party influence on the judge, as seen in the ‘Bali Nine’ case,
where it can be argued that the judicial officer’s decision was political in nature.
• Element of an effective legal system: Fair and unbiased.
Inquisitorial System (Rules of Evidence and Procedure)
• The Inquisitorial system doesn’t adhere to these aforementioned strict rules of evidence and procedure in a similar fashion. It has a far more relaxed approach in regards to the basis of evidence and procedure in comparison to the adversary system. Many of the evidentiary rules of the adversary system, such as the exclusionary rule (where the judge is able to exclude evidence that is improperly obtained) do not apply with regard to the inquisitorial system. In addition to this, there is a greater emphasis on written evidence as well as there being less formal restrictions placed upon witnesses (including the ability for the witness to articulate their own story).
Inquisitorial System (Legal Representation)
- The Inquisitorial system of trial involves a more active role in the investigation and questioning of witnesses, therefore, legal representation plays a much less vital and less active role in proceedings. However, they may assist the third party in through questioning witnesses in some cases and assist in the ultimate goal of discovering the truth. They may also create better guidance for the parties, as they play a much minor role in this system of trial.
- The inquisitorial system does not rely on legal representation in order to find the truth, as the heavy reliance on the judge partially nullifies the importance of a lawyer. As this system prevents the idea that the party with the best lawyer ‘wins’, the outcome of the trial may be more equitable and true. However, without the use of a legal representative, it may create a less timely form of trial, as the parties may be less knowledgeable on the court formalities and procedures.
Inquisitorial System (Burden and Standard of Proof)
- The Inquisitorial system does not possess a form burden and standard of proof, as the judge is responsible for bringing upon evidence and uncovering the truth, as this is the main objective of this system of trial.
- The inquisitorial system does not have a strict regulation on the burden and standard of proof, which may lead to more cases resulting in unfair results. However, as the judge plays a more active role in providing evidence and deciding the result of a case, it may further create an unbiased and equitable solution to the dispute.
Reform to Role of the Judge:
A potential reform to the adversarial system of trial is to better employee the
legal knowledge and experience of a judge, as they are past lawyers. This will assure the public resources are better allocated, and the decisions may be more accurate and equitable.
Reform to Legal Representation:
In order to make Australia adversarial system of trial more equitable for those
especially of lower economic statues, it could allow for the states to better implement legal aid. This is important, as this form of legal system relies heavily on legal representation. Not everyone who wishes to make a claim is able to due to the monetary restraint involved, therefore, increasing expenditure into this area may result in a more equitable and effective form of trial.
