The Adversarial System Flashcards
Describe the features of the Adversarial System
● Onus is on parties to gather/present evidence
● Judge is passive arbiter (different from inquisitorial systems)
○ Judge alone trials - judge is trier of law and fact.
○ Jury trial - judge is trier of law, jury is trier of fact. Judge instructs jury on law.
○ Juries - we treat them as children but also put them on a pedestal - weird paradox (Lisa D article)
■ ROL depends on accurate fact finding.
● Judge must be impartial, be seen as free from bias, prejudice, partiality.
○ Would a reasonable person have reasonably apprehended bias? Optics concern
● Each side has right to be heard (Audi Alterem Parterem)
○ Present case, evidence, undermine other sides case via C.E.
○ Helps validate courts findings, legitimize adversarial form
● Res Judicata - cannot re-litigate if matter already decided
○ Policy: efficiency, avoids judge shopping
○ Exceptions:
■ Error of law or unreasonable error of fact can be appealed → no true finality until resolved potential error
■ Errors of procedural fairness or jurisdiction
● Mutual Disclosure of Evidence
○ But in crim it is tipped in favour of defense
■ Defense required to disclose expert evidence, evidence in support of charter application, evidence in support of an alibi.
Where might you find a ROAB?
○ ROAB where: ■ Personal interest or personal connection to parties ● Ex Pecuniary interests ■ Judicial conduct appears to show bias ■ Judge takes active investigating role
Where might a matter be re-litigated. (ie exceptions to res judicata)
■ Error of law or unreasonable error of fact can be appealed → no true finality until resolved potential error
■ Errors of procedural fairness or jurisdiction
● Adversarial system said to further search for truth by:
○ Each party presents evidence favourable to case - greater sum of evidence for courts consideration
○ Each party can undermine each others case
○ Rules of disclosure enable prep for best/most effective effective evidence possible
Critiques of adversarial system
○ Unequal resources btwn parties
○ Encourages decisions on basis of strategy - might not bring evidence hurtful to case
○ Eyewitness testimony represents not actually what happened but what witness thinks happened
○ May not be so much about truth but rather channels social conflicts through a medium that tries to minimize further conflict - more legal truth than factual truth.
○ Truth is distorted, more of a contest, might never get truth
Modifications to adversarial system to improve effectiveness include:
○ Discovery process - avoids unfair ambush
○ Professional standards - restrain abuses of process
○ Challenges to stereotypical assumptions
○ Plea bargaining - encourages resolution
○ Cost rules in civil cases - incentives to be realistic about value for settlement purposes
Ethical duties of lawyers
● Be honest about case merits with client
● Confidentiality
● Dont knowingly mislead court
○ Wait till disclosure to get clients story
○ If client backpedals you will have to cease to act
● Advocacy → use best ability to obtain best outcome (crowns duty is to get justice)
● Respect for witness, other party, other lawyer, court (including evidence rulings)
● Lawyer shouldn’t be witness in their own proceeding
● Disclosure → mutual (ish). No ambushes.
● Avoid conflict of interest (ex co accuseds)
● If there is an ethical violation, stop representing.
● LS key consideration: to what extent does lawyers conduct compromise goodwill of profession in eyes of the public
Considerations regarding whether an evidentiary error can be overturned on appeal
Normally, big deference to trial judge who hears evidence directly when it comes to facts.
● When there is a failure to object:
○ The estoppel approach: did they object or aquiese, was there objection initially
○ The Materiality approach: is it ia side matter or speaks to central issue?
● When error is deemed harmless, no appeal
● If case might turn on error, appeal might be allowed. Likely retrial.
Describe the Jury and the control mechanisms relating to the jury.
Jury
● A political institution
● Protects from state oppression, conforms to societal values → but only to extent jury can ignore or moderate law (jury nullification, no duty to give reasons, secret deliberations, no accountability, inconsistent application of law)
● Educates public, legitimizes system in public eye
● We treat as children but give them this important role… paradox
● Rules of evidence are a form of jury control
● Jury control:
○ must follow the law as explained to them by the trial judge,
○ bias and caprice are lessened by f group deliberation/unanimity
○ Bias controlled via jury selection (challenges for cause, venue changes)
○ Lawlessness controlled by swearing to do what they are instructed - relatively ineffective
○ Incompetence controlled by rules of evidence
○ Judge has power/duty to comment on evidence value “judicial power of comment”.
■ Jury must be told that the comments are not binding.
Lisa D article - paradox that we treat like children but also put on a pedestal.
R v RDS
Judges
● R v RDS
○ ROAB not existing in case of black teen, taking into account police bias.
○ Authors of article: Concern for high threshold of ROAB, lack of accountability. But also good because allows judges to give substantive equality analysis.
