Unit 4: AOS 2- Adversary System Flashcards
Comparison of Inquisitorial and Adversary System: Difference Role of the judge
In the inquisitorial system the judge has more of an active role. The central judge will examine the witnesses and determine the issues of the case.
Whereas in the adversary system the judge has a different role. The role of the judge in the adversary system is to decide questions of law and procedure, ensure the strict rules of evidence and procedure of the courts is followed and determine the admissibblity of evidence.
Comparison of Inquisitorial and Adversary System: Difference Role of Legal Representation
In the inquisitorial system legal representation is not necessary compared to the adversary system. The role of legal representation is less in in the inquisitorial system also, due to the large role that the judge plays and the reliance on written evidence and statements. Legal representations only asks questions to a witness after the judge has completed questioning.
Whereas in the adversary system the role of legal representation is much larger. The legal representatives will prepare and present the parties case as well as examine the witness. These legal representatives are experts that are familiar with the strict rules of evidence and procedure that are essential elements of the adversary system.
Comparison of Inquisitorial and Adversary System: Similarities
A similarity between the inquisitorial system is the key features they hold. One of these key features is that they both have an independent, third party being the judge/judges who presides over the case. Another one of these key features that is a similarity is that the parties in both systems have the opportunity to seek out and utilise legal representation to represent them in the best light through out the case.
Comparison of Inquisitorial and Adversary System: Burden of Proof
In the adversary system the burden of proof lies with the party that is bringing the case. Civil: balance of probablities and criminal beyond resonable doubt.
In the inquisitorial system there is no real standard or burden of proof.
Feature of the Adversary System: Role of Parties
Regards party control in that parties have control of their own cases and how evidence will be presented. The parties are responsible for various aspects of the trial such as instigating the proceedings. In a civil case the person who’s rights have been infringed upon (plaintiff) decides to bring the case on the defendant. In a criminal case the state brings the proceedings
Feature of the Adversary System: Role of the judge
The judge or magistrate has the role of ensuring that the court processes and procedures are carried out according to the strict rules of evidence and procedure of the courts. Therefore the judge can decide on the admisibility of the evidence as well as ensuring correct court procedure is followed by both parties. They also ensure that each party is being treated fairly and equally. The judge acts as an impartial umpire.
Feature of the Adversary System: Need for legal representation
They have the role of preparing and conducting a case on behalf of their clients. Required as the are experts who are familiar with the strict rules of evidence and procedure of the courts.
Help to portray their clients case in the best possible light.
Feature of the Adversary System: The need for rules of evidence and procedure
Governed by rules of evidence and procedure that aim to ensure that there is a fair and equal treatment for both parties.
The rules of procedure provide framework in which the court cases take place and through which the court will try to bring about a resolution to the case.
Rules of evidence facilitate the fact finding task of the courts and aim to ensure fair and equal treatment. Evidence is concerned with proving the facts.
Feature of the Adversary System: Standard and Burden of proof
The burden of proof relates to the question of which party has to prove the facts of the case. It lies with the person who has brought the case.
There are instances where the burden of proof can be reversed e.g If the accused is pleading a defence such as self-defence or insanity the burden of proof is reversed.
Explain the two standards of proof (criminal + civil)
Strength of the Adversary System: Judge acting as an impartial judge
Weakness of the Adversary System: Judge cannot partake in investigations
Strength: Judge acts as an impartial umpire and therefore is unbiased. This allows for parties to be treated fairly and have reassurance that the decision maker is an independent third party.
Weakness: The judge cannot offer the parties assistance even when the court is inadequate and have less of a role in regards to the investigation of the case. This could be a waste of the judges many years of experience and expertise
Strength of the Adversary System: Burden and Standard of Proof
Weakness of the Adversary System: Burden and Standard of Proof
Strength: The party that originally intiated the case and has brought the case on the other party are responsible to prove the facts to the standard of proof required (explain criminal + civil).
Weakness: The adversary system is more concerned about winning as each party bringing out the facts to benefit their own side. The system is less concerned with finding out the truth.
Strength of the Adversary System: Legal rep
Weakness of the Adversary System: Legal rep
Strength: Each party has the opportunity to chose a legal representative. This allows for the parties to have representation that they believe will represent them in the best possibile light.
Weakness: The adversary system relies on equal representation of the parties so the truth can come out. However one party may not be able to afford legal representation or may have inferior legal representation.
A potential reform of the adversary system
A potential reform to the adversary system is to expand the role of the judge or magistrate so that it allows for greater amount of investigation. The power of the judge could be increased to allow a judge to ask questions and call witnesses to ensure that cases are being decided upon correctly. This also allows for the utilisation of the judges many years of expertise
