Evaluation Of The Adversary System Flashcards
Advantages of party control
Party control is an important feature of the adversary system. The parties are more likely to feel satisfied with the result if they have been able to control the conduct of their case. It allows the parties to fight their own battles. Having parties striving to win also reflects our combative nature.
Advantages of the role of the judge
The judge operates as an impartial umpire. This ensures that the rules of evidence and procedure are followed and the parties are treated fairly. The parties should receive a fair and unbiased decision because decisions are made on the facts before them and not preconceived ideas about the party. The public is more likely to feel confident in the decision of an independent party.
Advantages of the burden and standard of proof
This means that under the burden and standard of proof the party who is making the allegations is responsible for proving the facts. This would seem to be a fairer system than having a third party, the judge or magistrate, solely responsible for finding out the facts and deciding who is in the wrong.
Advantages of rules of evidence and procedure
The rules of evidence and procedure promote consistency in that all parties are to be treated alike. The process of cross examination is also likely to show up false evidence and bring out the truth. The rules of evidence ensure that the evidence is not irrelevant or confusing.
Advantages of the need for legal representation
The ability to be represented by legal personnel provides those accused of a crime or parties to a civil case with the opportunity to present their side of the facts in the best light possible. The parties can choose the best legal representation (that they can afford) to bring out the evidence in an objective and logical manner that will best benefit their case.
Disadvantages of the role of the parties
It can lead to further animosity between the parties instead of settling their differences. Party control can also disadvantages the parties in some instances, because it relies on the parties bringing out all their own evidence. Some vital evidence may be missed and the court may reach an unfair decision. To be effective parties need to purchase expensive legal representation.
Disadvantages of the role of the judge
The decision maker does not involve themselves in the running of the case. Even though judges and magistrates have a great deal of experience in court processes, this expertise is often not fully utilised. They cannot help if a party’s legal representative is not doing a good job, or assist unrepresented parties with their case.
Disadvantages of the rules of evidence and procedure
Under the rules of evidence, witnesses may be intimidated
and say something misleading. Witnesses can only respond to questions and cannot tell their own stories in their own words. Expert evidence could be unduly relied on and not all evidence may be brought out. Because of these factors the truth may not be reached.
Disadvantages of the need for legal representation
Parties in a civil or criminal case can be greatly disadvantaged by inexperienced or poorly prepared legal representatives, or representation that is not the same standard as their opponent’s legal representation (unequal representation) A person who is not legally represented usually does not know how to present their case and effective representation can be expensive.
