Adversarial system

The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates representing their party's positions and not on some neutral party, usually the judge, trying to ascertain the truth of the case. The inquisitorial system that is usually found on the continent of Europe among civil law systems (ie. those deriving from the Roman or Napoleonic Codes) has a judge or a group of judges who work together whose task is to investigate the case before them.

Related Topics:
Common law - Advocate - Judge - Inquisitorial system - Civil law - Napoleonic Code

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Judges in an adversarial system tend to be more interested in ensuring the fair play of due process, or fundamental justice. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision rendering obsolete the judicial process in question - rule of law being illicitly subordinated by rule of man under such discriminating circumstances.

Related Topics:
Due process - Fundamental justice - Evidence - Judicial discretion - Rule of law - Rule of man

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The rules of evidence are also developed based upon the system of objections of adversaries and on what basis it may tend to prejudice the trier of fact which may be the judge or the jury. In a way the rules of evidence can function to give a judge limited inquisitorial powers as the judge may exclude evidence she believes is not trustworthy or irrelevant to the legal issue at hand.

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Peter Murphy in his Practical Guide to Evidence recounts an instructive example. A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' 'No, my lord, merely the evidence', replied counsel.

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The name adversary system may be misleading in that it implies it is only within this type of system in which there are opposing prosecution and defense. This is not the case, and both modern adversary and inquisitiorial systems have the powers of the state separated between a prosecutor and the judge and allow the defendant the right to counsel. Indeed, the European Convention on Human Rights and Fundamental Freedoms in Article 6 requires these features in the legal systems of its signatory states.

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The right to counsel in criminal trials was initially not accepted in some adversary systems. It was believed that the facts should speak for themselves, and that lawyers would just blur the matters. As a consequence, it was only in 1836 that England allowed suspects of felonies to have legal counsel (the Prisoners' Counsel Act), and it was not until 1963 that the U.S. Supreme Court declared that legal counsel was a fundamental right of felony defendants in state courts. See Gideon v. Wainwright, {{ussc|372|335|1963}}.

Related Topics:
1836 - 1963 - U.S. Supreme Court - Gideon v. Wainwright

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One of the most significant differences between the adversary system and the inquisitional system occurs when a criminal defendant admits to the crime. In an adversary system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution of her or his crime, a false confession will not be accepted even in common law courts. By contrast, in an inquisitional system, the fact that the defendant has confessed is merely one more fact that is entered into evidence, and a confession by the defendant does not remove the requirement that the prosecution present a full case. This allows for plea bargaining in adversary systems in a way that is difficult or impossible in inquisitional system, and many felony cases in the United States are handled without trial through such plea bargains.

Related Topics:
Allocution - Plea bargain

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Another difference is in the rules of evidence. Because the adversarial system assumes that the evidence is to be presented to laymen rather than to jurists, the rules of evidence are considerably more strict. Rules on hearsay are much stricter in most adversarial systems than in inquisitorial systems; though often lower tribunals are allowed some flexibility in applying the strict rules of common law evidence such as in domestic relations courts or in small claims proceedings where the parties are often unrepresented by lawyers and the judge functions as more of an inquisitor to protect the interests of children than a neutral arbiter of justice.

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