The Adversial Nature Of A Criminal Trial

Question 1

Adversary system

Answer 1

The method of trial in Australian courts is the adversary system. This system is based on the two parties to a civil dispute or criminal case battling to win the case, each party acting as the adversary of the other.
In a criminal case, if the accused is found guilty, the prosecution has won the battle. If the accused is found not guilty, the accused has won the battle.

Question 2

5 key features of the adversary system

Answer 2

• the role of the parties
• the role of the judge
• the need for legal representation
• the rules of evidence and procedure
• the burden and standard of proof.

Question 3

Party control

Answer 3

Each party has control of their own case. As long as the rules of evidence and procedure are followed, each party (accused and prosecution) can decide:
• how to investigate the facts of the case
• how many witnesses to call in the hearing or trial
• what sort of evidence to bring out
• whether to have legal representation
• the method employed to bring out the evidence.

Question 4

Role of the judge

Answer 4

The role of the judge is an essential element of the adversary system. There must be an independent umpire (the judge or magistrate) to ensure that the case is conducted according to the rules of evidence and procedure, and that both sides are treated fairly.

Question 5

Rules of evidence and prospensity evidence

Answer 5

The rules of evidence ensure that only evidence that is relevant to the case is heard by the court. Prior convictions are not able to be heard by the court until the sentencing stage, because they may unduly influence the magistrate or judge and jury against the accused. A person should only be tried for the offence as charged, not for other things done in the past. However, in some circumstances the court may allow propensity evidence. This evidence shows that the accused had a tendency to act or think in a particular way as shown by past behaviours or admissions. This evidence may include prior convictions.

Question 6

Rule of procedure and Oral evidence

Answer 6

The rules of procedure govern the questioning of the witnesses and the accused. Oral evidence is given by the witnesses and accused (if the accused elects to give evidence) in the trial. That is, each side is able to question their own witnesses (examination-in-chief) and then the other side tries to show flaws in the evidence given (cross-examination). The side calling the witness is then able to question the witness again to clear up any points which arose during cross-examination (re-examination).

Question 7

Equal representation

Answer 7

For the adversary system to work effectively, each party should be represented by legal representatives with equal skill and efficiency. In this way, they are able to present the best evidence in support of their case and expose the truth. If the parties are not equally represented then the person with the most skilled legal representative may win the case, regardless of the truth. If a serious crime has been committed, the prosecution may use a highly skilled barrister to prosecute the case. An accused may be at a disadvantage if he or she cannot afford to hire a legal representative of similar calibre.
People who feel that they did not receive justice in the courts may have the opportunity to appeal to a higher court. This of course requires more money.

Question 8

4 advantages of adversary system

Answer 8

the truth should emerge through questioning of the witnesses

it relies on oral evidence

each party is in control of their own case

the decision-makers are impartial

Question 9

5 disadvantages of the adversary system

Answer 9

unequal representation

the truth may not emerge

oral evidence may lead to incorrect assumptions

the high cost of proceedings

the legal expertise of judges is underused

Question 10

Truth should emerge through questioning of the witnesses

Answer 10

Both sides are striving to win. Both sides question the witnesses and try to show their case in the best light. During this process the truth should emerge.

Question 11

Relies on oral evidence

Answer 11

Because witnesses are required to give oral evidence, judges, magistrates and juries are better able to see whether a witness is telling the truth.

Question 12

Each party is in control of their own case

Answer 12

The parties are more likely to feel satisfied with the outcome if they are in control of running their own case. They may feel that they have done everything possible to win the battle.

Question 13

The decision makers are impartial

Answer 13

Decisions in the courts are made by impartial decision-makers: the magistrate in the Magistrates’ Court, the judge in a higher court, or the jury if a jury is present. The public are more likely to feel confidence in the decision of impartial decision-makers.

Question 14

Unequal representation

Answer 14

The parties to a case can be greatly disadvantaged if their legal representative is not well prepared. Parties to a case in court need to be represented by someone who can bring out the evidence that is advantageous to them, otherwise they are not in an equal position to win the case.

Question 15

The truth may not emerge

Answer 15

The process of questioning and cross-examination should bring out the truth but one party may be withholding vital evidence that is not known to the other side and that may not be brought out in the trial. The main aim of both parties is to win the case, rather than get at the truth.

Question 16

Oral evidence may lead to incorrect assumptions

Answer 16

Oral evidence depends on the witnesses being able to answer questions correctly and convincingly in court. If they make mistakes, they can give the wrong impression and affect the outcome of the case.

Question 17

High cost of proceedings

Answer 17

This is primarily due to the parties’ need to control and win their cases. To do this, they need to employ the best legal representative. If a person is accused of a crime, it is very expensive to show that the evidence held by the prosecution is incorrect. In a civil case it is very expensive for the plaintiff to bring a case to court, and it is also very expensive to defend a case.

Question 18

Legal expertise of judges underused

Answer 18

Judges generally only ask questions to clarify points made by the witnesses. They rarely call witnesses themselves. If they did ask too many questions of the witnesses they might be thought to be favouring one side of the dispute. This could be grounds for appeal.

Question 19

4 ways in which adversary system can lead to a miscarriage of justice

Answer 19

It has been said that a trial using the adversary system can be compared to a stage with the two main protagonists (the prosecutor and the accused’s counsel) as the actors, and the jury awards the case to the side which puts on the best show. This process can sometimes result in a miscarriage of justice if:
• the case for the accused is rushed or put together in a short time
• one side withholds evidence, is late in disclosing evidence or fabricates evidence
• unreliable forensic procedures lead to the conviction of the wrong person
• an over-reliance on expert evidence serves to confuse rather than clarify the issue in dispute.