Lecture 10 - Adversary system

Question 1

Truth-seeking involves three factors

Answer 1

o The effective development, organization, and presentation of all relevant information
o The existence of an impartial decisionmaker
o The existence of impartial procedures

Question 2

Characteristic of the adversary system

Answer 2

o A neutral and passive decisionmaker
o Development, organization, and presentation of evidence by the parties
o Concentrated and uninterrupted proceedings
o Equal opportunities to present evidence and make arguments

Question 3

Rationale in Passive Decision-maker

Answer 3

The rationale for this separation is a desire to avoid preliminary theorising. This occurs because we tend to overvalue new facts that are consistent with our theory and devalue facts that contradict that theory

Question 4

Benefits of party presentation of evidence and arguments

Answer 4

o Reduces the risk of preliminary theorizing by insulating the decisionmaker
o Increases the quantum of information by placing responsibility on persons with most incentive to find it
o Increases the persuasive quality of information in the same way

Question 5

Characteristic of adversarial clash

Answer 5

o Alternating presentations of evidence
o Requirement of “immediate” evidence
o Concentrated and continuous presentation of evidence (also necessary to accommodate the jury)

Question 6

Equal opportunities to present evidence and make arguments

Answer 6

• Equality of forensic arms- All parties are subject to same rules and procedures that are detailed and rigid- Best judge is the most knowledgeable about the rules governing evidence and procedure.
• Insular administration of rules- Neither the judge nor the jury has any comprehensive summary or dossier of all the case before the trial

Question 7

Criticism of the adversary system

Answer 7

o Abuse of Party Control. Can lead to rehearsed testimony
o Inadequate Focus on the Truth - Party discovery is a relative truth
o Inefficiency- is slow and costly in the form of attorney’s fees and judges and court employees salaries.
o Cost and Impact of Cost on Persons with Inadequate financial Resources. There is a disadvantage for the person with less money that could present less evidence and who can pay a lower skilled lawyer.

Question 8

Abuse of Party Control- Response of supporters

Answer 8

o Is prohibited by the canons of professional responsibility that govern all lawyers
o Is illegal if the effect is to suborn perjury
o Can be exposed through cross-examination
o Can be exposed by information obtained during discovery
o Will arouse the suspicion and anger of the jury

Risk are outweighed by benefits which include:
o Ensuring that parties feel they had an opportunity to fully present their view of the case
o Promoting confidence in the legitimacy of judicial decisions
o Affirming human dignity and value

Question 9

Inadequate focus on the truth- Response of supporters

Answer 9

o No one can convey the “objective truth” because all testimony is filtered through the perceptions, memories, and communications of parties and witnesses
o The best we can do is to approach the truth by presenting several perceptions, memories, and communications that will establish the most plausible account of the facts
o Two parties seeking the truth is better than a search by one judicial officer
o Truth-seeking by an official of the government poses the risk of abuse of power

Question 10

Inefficiency- Response of supporters

Answer 10

o The Adversary System is more efficient than the stereotype because parties have the autonomy to settle a case or stipulate a fact.
o Trial rules regulate the discovery process by:
 Requiring automatic disclosure of evidence
 Limiting the amount of other discovery
 Sanctioning lawyers for unnecessarily prolonging litigation

Question 11

Impact of litigation cost where one party has inadequate financial resources

Answer 11

o In a criminal case, the Sixth Amendment requires that an attorney be provided at no charge to the defendant
o In civil cases, the federal and state governments provide funding to organizations that provide legal services for free or at little cost
o Private attorneys provide pro bono legal services
o Many statutes and most contracts provide for “fee shifting,” which means the losing party must pay the attorney’s fees of the winning party and pay court cost
o Discovery rules work to equalize access to evidence and reduce trial preparation expenses
o Juries may sympathize with the “little guy” who has fewer resources
o The problem of unequal resources is not limited to the adversary system