The Adversary System Flashcards
Adversary system
The system used in the Victorian courts is known as the adversary system and, as the name implies, it is based on two parties battling to win their legal battle, each party acting as the adversary of the other. The trial is presided over by an independent and impartial umpire, and is conducted according to rules of evidence and procedure.
The role of the adversary system of trial
The role of the adversary system is to provide a procedure for the parties to present and resolve their case, in as fair a manner as possible.
How the adversary system operates in both civil and criminal cases
The adversary system operates in both civil and criminal cases. In a criminal case the state is trying to prove the guilt of the accused, and the accused is fighting to be found not guilty. In a civil case the party bringing the case is trying to prove that the other party was in the wrong and the person who is defending the case is trying to show that he or she was not in the wrong.
How the adversary system differs from some of the more informal adr
Does not involve an informal process where the two parties negotiate a settlement. The two sides to the battle are clearly drawn and the parties try to win their case in the best way they can, at the expense of the other side. Differs from other methods of dispute resolution for civil cases, where the emphasis is on helping the disputing parties to reach a resolution between themselves in an informal atmosphere.
5 major features of the adversary system of trial
The role of the parties The role of the judge Standard and burden of proof The need for rules of evidence and procedure The need for legal representation
The role of the parties
Each party controls their own case and has complete control over decisions about how the case will be run as long as the rules of evidence and procedure are followed. Known as ‘party control’. The parties are responsible for various aspects of the trial such as instigating the proceedings, investigating the facts and deciding which facts should be brought before the court. They are also able to chose the mode of trial in a civil case.
Party control - instigating the proceedings
In a civil case the person whose rights have been infringed decides to bring a case against the other party, and the defendant decides whether to defend the case or accept what the plaintiff is proposing. In a criminal case the state brings the proceedings. The accused does not have a say in whether a matter is taken to court but does decide whether to plead guilty or not guilty.
Party control - investigating the facts
The parties choose the methods they will use to investigate the facts and bring the facts before the court.
Party control - deciding which facts will be brought before the court
Each side will decide which evidence it thinks will best suit its case and, although not all evidence will be brought out by either side, the truth should emerge through cross-examination. However, the prosecution in a criminal case must bring out all evidence known to it, whether or not that evidence is beneficial to the prosecution case. This, to some extent, reduces the adversarial nature of the criminal trial.
Party control - application to the adversary system
Allows the parties to feel that they are in control of the situation and responsible for the outcome. Someone who is given the opportunity to fight to win is more likely to feel satisfied with the outcome. The courts allow the ‘battle’ to take place legally within specified rules of evidence and procedure. The parties to a civil dispute are able to take action to try to resolve their dispute, and people accused of a crime are able to defend themselves if a prosecution is brought against them.
Party control disadvantages
Parties have access to legal representation if they don’t feel confident in investigating the facts and presenting their case by themselves. However, this process is expensive, and the high cost of legal proceedings can contribute to the decision not to carry on with a civil claim, or can lead to an unfair result in a criminal case if the accused is not represented.
Role of the judge
judge/magistrate has the role of ensuring that the court processes and procedures are carried out according to the strict rules of evidence and procedure and each of the parties is treated fairly. The judge must act as an impartial umpire and not favour either side. They ensure the rules of evidence and procedure are followed, decide questions of law, clarify issues, direct the jury/decide questions of facts without a jury and decide the sanction or remedy.
Role of the judge - application to the adversary system
For the adversary system to operate effectively, its essential that the judge/magistrate acts impartially. If the judge/magistrate favoured one side, then the contest would not be fair.
its also essential that the decision-maker in the trial (judge/jury) is independent. judge/jury makes the decision on the facts brought before the court. They have no previous knowledge of the accused or the parties in civil cases.
Burden of proof
The burden of proof (also known as the onus of proof) relates to the question of which party has to prove the facts of the case. It lies with the person or party who is bringing the case. In a criminal case, it lies with the prosecution; in a civil case the plaintiff carries the burden of proof (the person whose rights have been infringed). This means that the person who brings the case has to prove that their view of the facts is correct – and not the other party’s view.
Standard of proof
The strength of evidence needed to prove the case. In a criminal case the prosecution must prove the case beyond reasonable doubt; that is, that there must be no reasonable doubt for an accused to be found guilty. Reasonable in this instance is what the average person in the street would believe to be the case, when the evidence is looked at in a logical and practical manner.
For civil disputes, the plaintiff must prove the case on the balance of probabilities. This means that plaintiffs in civil cases must prove that they are most probably in the right and the defendant is most probably in the wrong.
