AOS 2 - Adversary System Flashcards
Compare the following Adversarial/Inquisitorial feature: Role of the Parties
A: - Parties are in complete control of their case. they are responsible for the preparation of their case
A: - Parties determine the issues that are disputed in the case, what evidence is to be presented and in what form and also what witnesses they will call to examine.
I: - the parties have little to no control over their case.
I: - the parties respond to the directions of the court in the preparation and presentation of their case
Compare the following Adversarial/Inquisitorial feature: Role of the Judge
A: - the role of the judge is to act as an independent third party who is unbiased
I: - the Judge takes a more active role in the case and in proceedings, its task is to find the truth (investigative judge)
A: - Decide on the questions of law and ensure the rules of evidence and procedure are being strictly upheld to ensure unbiased nature
I: - Determines which evidence is to be examined and which witnesses to call upon
A: - Only asks the witnesses questions to clarify points when asked by legal counsel
I: - the judge can examine and question witnesses
Compare the following Adversarial/Inquisitorial feature: The Need for Legal Representation
A: - Main role is to represent the needs of the parties as they are unaware of the complex legal rules and processes
I: - not a large need for legal representation sure to less party control and greater role of judge
A: - they prepare and present the parties cases and thus present evidence and examine witnesses though the asking of questions to find the truth
I: - may ask questions once the examining Judge has asked all questions to the witness
Compare the following Adversarial/Inquisitorial feature: Rules of Evidence and Procedure
A: - Strict rules of evidence and procedure exist and apply to the trial regarding the admissibility of evidence
I: - No such rules exist or apply
A: - evidence mainly relies on oral evidence by witnesses
I: - relies heavily on written statements
A: - all evidence, except written statements are collected and presented by the parties
I: - all evidence and statements are collected by the examining judge
A: - witnesses must answer the questions put to them by legal counsel, in accordance with the rules of evidence and procedure (examples)
I: - witnesses are allowed to give their opinion of their version of what happened without interruption
Give two strengths and two weaknesses for the role of the parties
Strengths:
- greater control over the preparation leads to the parties feeling more satisfied as they can adequately prepare and give their best case
- the evidence that is selected will be the most relevant. as each party has control, they will put forth their best pieces of evidence to ensure they will win, thus with these pieces, the truth should emerge
Weaknesses:
- in order to ensure each party can present their best possible case they need a lot of time to prepare. this causes a long time until the trial and can cause delays, leading to a longer period until justice can be achieved
- always be a winner and a loser, will cause animosity between the two parties.
Give two strengths and two weaknesses for the role of the judge
Strengths:
- Judge operates as an impartial umpire. ensuring the rules of evidence and procedure have been followed. therefore both parties are treated in an unbiased and fair manner and no party is given preference
- the judge is making the decision purely based on the facts and evidence presented at the trial with no external influence or knowledge. thus parties are more likely to be happy with the outcome.
Weaknesses:
- judge cannot offer assistance in the trial. expertise of the judge is not fully utilised.
- they cannot help parties who are under represented, leading to an unfair advantage
- judge may have a bias
Give two strengths and two weaknesses for the burden and standard of proof
Strengths:
- ensures that the party who brings the case has to have the burden at proving the case and there is a baseline of proof needed to ensure consistency and objectivity when making a decision
Weaknesses:
- The adversary system is more concerned with winning, with each party bringing out the facts to benefit their side, rather than finding out the truth.
Give two strengths and two weaknesses for the rules of evidence and procedure
Strengths:
- The process of examination-in-chief and
cross-examination allows both parties to present their cases and test the evidence of the other party. thus if any witness is not being honest this should emerge. ultimately the truth.
- some types of evidence are not
permitted which is to protect the parties and in the interests of justice. for example prior convictions which may influence the judge or jury
Weaknesses:
- Witnesses may be intimidated
and say something misleading. Witnesses can only respond to questions and cannot tell their
own stories in their own words.
- some evidence may be vital for the truth emerging, however it might be inadmissible. lead to a miscarriage of justice. truth may not emerge
Give two strengths and two weaknesses for the need for legal representation
Strengths:
- Each party has a right to choose a legal representative. In this way they can choose someone they believe will present their case in the best light.
Weaknesses:
- may be an imbalance of legal expertise where one party has legal representation of a higher expertise. gives an unfair advantage
3 examples that ALLOW a fair and unbiased hearing for adversary system
PARTY CONTROL
- parties to a dispute are equally in control of their case, and presentation. gives equal opportunity for the parties to present their best case
INDEPENDENT ARBITRATORS
- the judge is independent and unbiased to both parties. should therefore treat them both equally and fairly by not having a bias against or towards a particular party. prior criminal convictions are inadmissible in criminal trials.
RULES OF EVIDENCE AND PROCEDURE
- ensures the parties to a dispute are equally allowed to present evidence to support their case that is relevant to the issues. these set of rules ensure fairness and o bias.
3 examples that HINDER a fair and unbiased hearing for adversary system
INADMISSABLE EVIDENCE:
- vital evidence which may be necessary for achieving a just outcome or revealing the truth may be inadmissible. not fair
LEGAL REPRESENTATION
- legal rep is very expensive and some may not be able to afford experienced legal counsel. if the legal counsel of the parties are skilled differently, it is not fair as the party with better experience has a greater chance of winning
BIAS
- A judge or jury may have a personal bias against a party.
provide two recent changes which allow a fair and unbiased hearing
JUSTICE LEGISLATION (EVIDENCE AND OTHER ACTS) AMENDMENT BILL F.A - this bill amends the Evidence (miscellaneous provisions) Act 1958 which now allows the use of audio-visual links for giving evidence.
WITNESS PROTECTION BILL 2016
- Bill amends the Witness protection Act 1911 in relation to the governance and administration of protection and assistance and provides a new office regarding the intimidation of witnesses
