The Adversary System Of Trial

Question 1

Role of the parties

Answer 1

Parties have full control of the case, in a civil case the wronged party decides whether to Sue. In a criminal case the accused complete either guilty or not guilty.

• accused parties prepared for the own case and they have control over their case
• not all evidence could come out at trial, the truth may not emerge and delays could be caused by taking time to gather evidence

Question 2

Role of the judge

Answer 2

The judge or magistrate acts as an independent and impartial empire, ensuring the parties follow the rules of evidence and procedure. They decided the admissibility of evidence, directed the jury and decide the sanctions in criminal cases.

• The existence of an impartial, independent and unbiased adjudicator ensures fairness and they are independent from the state allowing impartial treatment
• unable to suggest questions, issues or evidence and they are unable to assist unrepresented or poorly represented parties

Question 3

Burden and standard of proof

Answer 3

The burden of proof is the party responsible for proving the case, the prosecution or plaintiff and the standard of proof is the extent to which the case need to be proven beyond reasonable doubt or on a balance of probabilities.

• having a party responsible for proving their case is fairer and The presumption of innocence in a criminal case treats each individual equally until the case is proven
• The emphasis on winning or proof, rather than the truth

Question 4

Rules of evidence and procedure

Answer 4

Rules of evidence concerned with proof of facts and are there for the protection of both parties. Admissible evidence includes all evidence, affidavits, objects. Inadmissible evidence includes hearsay, opinions, irrelevant, illegally obtained evidence. Procedure is the steps to bring out the evidence.

• promote fairness and consistency, as they are subject to the same rules and both potties are able to test each other’s evidence.
• oral evidence may be incomplete and useful evidence may be omitted from trial.

Question 5

Need for legal representation

Answer 5

Due to strict pre-trial, trial and post trial procedures and rules of evidence there is a need for the parties to be represented. Legal representation is necessary to present the best case for the parties and achieve a just outcome.

• equal representation ensures fairness and to present this side of the facts in an expert manner
• One party may not be able to afford legal representation

Question 6

Possible reforms of the adversary system of trial

Answer 6

GRIM
– Greater use of written, rather than oral evidence
– Relaxation of the rules of evidence
– Increased role for judges
– Making legal representation more attainable

Question 7

Greater use of written, rather than oral evidence

Answer 7

Written statements are using committal hearings, further use of written evidence in trials, such as police reports, could further save time and money.

Question 8

Relaxation of the rules of evidence

Answer 8

Strict rules of evidence in the adversary system, could be relaxed to allow other useful information to be put to the court that could affect the outcome of the trial

Question 9

Increased role for the judge

Answer 9

Concurrent powers of judges could be extended to become more involved in pretrial and trial procedures, including: calling witnesses and asking questions of witnesses, an increased role would allow the expertise to be fully utilized

Question 10

Making legal representation more attainable

Answer 10

Increased availability of legal aid Through increased government funding would result in more people being able to get access to legal representation, thereby improving the preparation and presentation of the case in court

Question 11

Effective operation of adversary system of trial ETFUH

Answer 11

• Rules of evidence and procedure allow equal treatment
• impartial or unbiased judge
• exclusionary rules, evidence being omitted
• the judge as the decider may result in unfair hearing due to bias

Question 12

Effective operation of adversary system of trial EATLS

Answer 12

• heard by a specialized, expert legal body
• those unable to afford legal representation may be eligible for legal aid
• parties unaware of legal rights or existence of bodies to assist them
• accused may be ineligible for legal aid

Question 13

Effective operation of adversary system of trial TROD

Answer 13

• pre-trial procedures speed up the processes before and during trials
• time limits placed at many stages to get a case to trial in a timely manner
• lengthy pre-trial procedures cause delays
• lack of sufficient court resources