Evaluation of Justice Systems Flashcards
What is the Adversary system and what does it aim to do?
an extension of democratic principles – allows people the right to prepare and present their own case before an independent judge – this aims to ensure that ‘great truths emerge from powerful conflicting argument.’
What are some negatives of the adversary system?
The system can’t guarantee equal access to the law or that the truth will come out at trial
What are some suggested reforms to the adversary system?
Suggested reforms include:
- Judges should have greater power to intervene in a case eg. allowed to examine and call witnesses to ensure all evidence is produced.
- the right to silence rule should be abolished as accused should be required to give evidence so that Judge/Jury can make own observations of accused’s version of events. (Originally used to protect uneducated people from incriminating themselves),
- accessibility should be improved by
- More legal aid
- Allow acquitted persons to recover costs from the State
- Set limits on legal costs
- Impose penalties for intentionally delaying proceedings and hence increase costs
- Change rules about examining witnesses to allow children for example to give evidence
- allow criminal and civil matters to be dealt with simultaneously as it reduces workload of courts – if an accused is convicted of a crime under the criminal standard of proof, seems reasonable to consider a claim for damages under the less strict civil standard.
Some would even suggest replacing our system entirely with the inquisitorial model
What do the rules of evidence ensure?
Each party has fair and equal opportunity to present their case
What are some criticisms of the rules of evidence?
- No guarantee that parties have equal access to the law – eg. Accused may lack finance to put together a convincing case
- Rules of evidence are too strict – can be ruled inadmissible even though relevant and vital – see Coco’s Case (1994 - HCA) – illegal planting of a listening device by the Police made any evidence gathered inadmissible. In the inquisitorial system, the evidence would be allowed and the Police penalized for breaking the rules
- Judge not allowed to be actively involved even if the case is poorly prepared or presented by one of the parties
- Parties in control of own case – no guarantee that all relevant evidence will be submitted to court – eg. deliberately ignore evidence that is not favourable to your side.
- Right to silence inhibits examination of all relevant evidence – in the Inquisitorial system, the Accused must give testimony.
- Interrogation techniques for examining witnesses may hide or fudge the real issues – doesn’t allow certain categories of people from telling their story in their own way – eg. children, migrants, intellectually disabled.
- Hearsay can inhibit gathering the truth – it may not be as reliable but it is still evidence
What are some suggested reforms to the rules of evidence?
- Make the relevance rule paramount
- Allow greater flexibility for witnesses to give their own account at trial
- Abolish right to silence
- Modify rules for examination of witnesses by:
- Giving Judges discretion to allow witnesses to give answers in narrative form, not by interrogatory questioning
- Allow witness to make a personal statement after examination – Judge could vet a written statement beforehand to prevent inadmissible evidence being introduced.
- Allow children’s evidence in assault or abuse cases to be given in alternative ways – eg. only limited people in the court, have an adult to comfort child, present in form of a sworn statement
What is a jury?
Jury is an extension of democratic principles – allows one to be judged by peers, shared decision making
What are some criticisms of juries?
juries don’t represent a true cross section of community, are not comprised of qualified persons, do not have to give reasons for verdict, cost a lot of money, system favours lawyers as juries are untrained and unqualified, the presentation of evidence is therefore slow and costly.
What are some reforms for juries?
broaden base for jury selection, give jurors more active role in trial (asking questions, trial transcript), allow intermediate verdicts and compel juries to give reasons for verdicts, allow judge/counsel to ask more questions of prospective jurors to determine whether they are capable of addressing issues objectively and rationally
What is an alternative to juries?
composite juries with some experts in them, abolition of jury system and replaced by Judge(s) alone
What are some strengths of the inquisitorial system?
allows all relevant evidence to be admitted, allows intermediate verdicts, makes justice system more accessible and does not have the problems of an independent jury system
What are some weaknesses of the inquisitorial system?
the state dominates the resolution process, limits the legal rights of the Accused to present his/her own case, compromises independence of Judiciary, denies accused persons the right to be tried by peers
What is the key principle behind the adversary system?
Society expects law breakers to be punished v Rights of the individual – need to balance the two
What are some strengths of the adversary system?
- Party control over proceedings
- Truth and conflicting interests – likely that the truth will emerge from powerful conflicting arguments
- Equality before the law – rule of law
- Respect for individual legal rights – eg. presumption of innocence, right to remain silent, right to present own case (Right to silence = accused does not have to give any evidence or testimony and leave it up to the prosecution to prove its case)
- Judicial independence – Judge is impartial and independent – cases decided on merit
- Strict rules of evidence apply to both parties – fair and equal opportunity to put their cases, only reliable and relevant evidence is allowed
- Strict rules of procedure – trial is one continuous event – party making allegations has burden of proof in accordance with strict standard of proof
- Trial by one’s peers – jury – trial by peers
- Right of appeal to deal with any possible miscarriage of justice
What are some weaknesses of the Adversary system?
- Party control assumes that both parties are equal in knowledge, skills, temperament and resources
- No guarantee that truth will emerge – evidence may be concealed
- Equality before the law is only true if both parties have equal access to the law – certain groups do not have equal access and feel intimidated by the legal system – eg. children, aged and disabled, intellectually impaired, non-English speakers, minority groups such as Aboriginals
- Respect for individual legal rights – but what about rights of victims? Eg. a accused rapist does not have to give evidence (under the silence rule) but the victim is not granted that protection.
- Judicial independence – Judges are highly experienced and skilled people and having such a passive role at trial may not be conducive to bringing about a just outcome
- Rules of evidence – exclude relevant evidence that could often lead to acquittals on technicalities – eg. a written statement is only admissible at trial if the author can be examined under oath in witness stand, irrespective of relevance
- Procedure that requires trial to be one continuous event doesn’t allow adjournments so that parties can collect more evidence
- Trial by jury is not without its weaknesses
- Right of appeal is only good if parties have equality of access to the law – appeals are very expensive
