Business, Legal & Accounting Glossary
The scheme of American jurisprudence wherein a judge or jury renders a decision in a controversy between or among parties who assert contradictory positions during a judicial examination such as a trial, hearing, or other adjudication.
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 him.
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 the rule of man/woman under such discriminating circumstances.
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.
Peter Murphy in his excellent Practical Guide to Evidence (Blackstone Press, various editions) 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.
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 inquisitorial 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.
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 presents a full case. This allows for plea bargaining in adversary systems in a way that is difficult or impossible in the inquisitional system, and most felony cases in the United States are handled without trial through such plea bargains.
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.
Some writers trace the adversarial process to the medieval mode of trial by combat, in which some litigants, notably women, were allowed a champion to represent them. Certainly, the use of the jury in the common law system seems to have fostered the adversarial system, and there are many today who believe that it remains the best way of providing for the determination of a disputed issue. On the other hand, the new British Civil Justice reforms initiated by Lord Woolf (the Civil Procedure Rules or CPR) are prefaced with a case management system controlled by the judge rather than by the lawyers representing the different parties; similar case management systems are coming into use in the United States.
The adversarial system also disposes of the canard whereby lawyers are often asked how they can represent someone if they believe that person to be guilty (or innocent for that matter, although this might be a more difficult position): counsel must not deceive the court but his client is entitled to have the best presentation of the case laid before the tribunal and to have the evidence fully tested.
As an accused is not compelled to give evidence in a criminal adversarial proceeding he may not be questioned by prosecutor or judge unless he chooses to do so. However, should he decide to testify, he is subject to cross-examination and can be found guilty of perjury. As the election to maintain an accused person’s ‘right to silence’ prevents any examination or cross-examination of that person’s position, it follows that the decision of counsel as to what evidence will be called is a crucial tactic in any case in the adversarial system and hence it might be said that it is a lawyer’s manipulation of the truth. Certainly, it requires the skills of counsel on both sides to be fairly equally pitted and subjected to an impartial judge.
By contrast, while defendants in most civil law systems can be compelled to give a statement, this statement is not subject to cross-examination and is not given under oath. This allows the defendant to explain his side of the case without being subject to cross-examination by a skilled opposition.
The passive role of the judge in the adversarial system also allows for plea bargaining in which the defendant agrees to plead guilty in exchange for a lesser sentence by the prosecution, or for out-of-court settlements in civil cases. In practice, most cases in the United States are disposed of in this manner. In the inquisitional system, plea bargaining is impossible because there is no concept of a plea, and any attempt for the prosecution and defense to negotiate a sentence without the involvement of the judge would be considered highly unethical.
In some adversarial legislative systems, the court is permitted to make inferences on an accused’s failure to face cross-examination or to answer a particular question. This obviously limits the usefulness of silence as a tactic by the defence. In Britain, the Criminal Justice and Public Order Act 1994 allowed such inferences to be made for the first time. This change was disparaged by critics as an end to the ‘right to silence’, though in fact an accused still has the right to remain silent and cannot be compelled to take the stand.
In many jurisdictions, the approaches of each system are often formal differences in the way cases are reviewed. It is questionable that the results would be different if cases were conducted under the differing approaches; in fact, no statistics exist that can show that these systems do not come to the same result. However, these approaches are often a matter of national pride and there are opinions amongst jurists about the merits of the differing approaches and their drawbacks as well.
Proponents of the adversarial system often argue that the system is fairer and less prone to abuse than the inquisitional approach because it allows less room for the state to be biased against the defendant. It also allows most private litigants to settle their disputes in an amicable manner through discovery and pre-trial settlements in which non-contested facts are agreed upon and not dealt with during the trial process.
In addition, adversarial procedure defenders argue that the inquisitorial court systems are overly institutionalized and removed from the average citizen. The common law trial lawyer has ample opportunity to uncover the truth in a laboratory called the courtroom. Most cases that go to trial are carefully prepared through a discovery process that aids in the review of evidence and testimony before it is presented to the judge or jury. The lawyers involved have a very good idea of the scope of agreement and disagreement of the issues to present at trial which develops much in the same way as the role of investigative judges. It has also been argued that a trial by a jury of one’s peers may be more impartial than any government-paid inquisitor and a panel of his peers. In the United States, the right to a trial by a jury of one’s peers who are common citizens is guaranteed by the United States Constitution.
Proponents of inquisitorial justice dispute these points. They point out that most cases in adversarial systems are actually resolved by plea bargain and settlement. Most legal cases in these systems do not go to trial; this can lead to great injustice when the defendant has an unskilled or overworked attorney, which is likely to be the case when the defendant is poor. In addition, proponents of inquisitorial systems argue that the plea bargain system causes the participants within the system to act in perverse ways, in that it encourages the prosecution to bring charges far in excess of what is warranted and the defense to plead guilty even when they believe that they are not. Furthermore, proponents of inquisitorial systems also argue that the power of the judge is limited by the use of lay assessors and that a panel of judges may not necessarily be more biased than a jury.
Furthermore, some countries with an inquisitorial system do use jury trials for some categories of crime. Interestingly, some countries such as Japan which have a right to a jury trial, rarely use them, as there is a popular belief that any defendant who requests a jury trial has a case that is so weak that they are willing to risk pleading their case before strangers rather than professional judges. Hence, jurors in those countries are very unsympathetic toward defendants.
U.S. courtrooms have often been compared to battlefields or playing fields. The adversary system by which legal disputes are settled in the United States promotes the idea that legal controversies are battles or contests to be fought and won using all available resources.
The contemporary Anglo-American adversary system has gradually evolved, over several hundred years. Early English jury trials were unstructured proceedings in which the judge might act as inquisitor, or even prosecutor, as well as fact finder. Criminal defendants were not allowed to have counsel, to call witnesses, to conduct cross-examination, or to offer affirmative defenses. All types of evidence were allowed, and juries, although supposedly neutral and passive, were actually highly influenced by the judge’s remarks and instructions. In fact, before 1670, jurors could be fined or jailed for refusing to follow a judge’s directions.
The late 1600s saw the advent of a more modern adversarial system in England and its American colonies. Juries took a more neutral stance, and appellate review, previously unavailable, became possible in some cases. By the eighteenth century, juries assumed an even more autonomous position as they began functioning as a restraint on governmental and judicial abuse and corruption. The Framers of the Constitution recognized the importance of the jury trial in a free society by specifically establishing it in the Sixth Amendment as a right in criminal prosecutions. The Eighth Amendment also established the right to a jury in noncriminal cases: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”
The independent judiciary was somewhat slower in developing. Before the 1800s, English judges were still biased by their ties with the Crown, and U.S. judges were often politically partisan. U.S. Supreme Court Chief Justice John Marshall, who served from 1801 to 1835, established the preeminence and independence of the high court with his opinion in Marbury v. Madison 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). Marbury established “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” (Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5). By the early 1800s, attorneys had risen to prominence as advocates and presenters of evidence. Procedural and evidentiary rules were developed, and they turned the focus of litigation away from arguments on minute points of law and toward the resolution of disputes. The basic parameters of the United States’ modern legal system had been established.
In the Anglo-American adversary system, the parties to a dispute, or their advocates, square off against each other and assume roles that are strictly separate and distinct from that of the decision-maker, usually a judge or jury. The decision-maker is expected to be objective and free from bias. Rooted in the ideals of the American Revolution, the modern adversary system reflects the conviction that everyone is entitled to a day in court before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict.
In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence presented by the parties with the objective of resolving the dispute between them. The fact-finder must remain uninvolved in the presentation of arguments so as to avoid reaching a premature decision.
The Anglo-American requirement of an impartial and passive fact finder contrasts with the requirements of other legal systems. For example, most European countries employ the inquisitorial system, in which a judge investigates the facts, interviews witnesses, and renders a decision. Juries are not favored in an inquisitorial court, and the disputants are minimally involved in the fact-finding process. The main emphasis in a European court is the search for truth, whereas, in an Anglo-American courtroom, truth is ancillary to the goal of reaching the fairest resolution of the dispute. It has been suggested that the inquisitorial system, with its goal of finding the truth, is a more just and equitable legal system. However, proponents of the adversary system maintain that the truth is most likely to emerge after all sides of a controversy are vigorously presented. They also point out that the inquisitorial system has its own deficiencies, including abuse and corruption. European judges must assume all roles in a trial, including those of fact finder, evidence gatherer, interrogator, and decision-maker. Because of these sometimes conflicting roles, European judges might tend to prejudge a case in an effort to organize and dispose of it. Inquisitorial courts are far less sensitive to individual rights than are adversarial courts, and inquisitorial judges, who are government bureaucrats (rather than part of an independent judicial branch), might identify more with the government than with the parties. Critics of the inquisitorial system argue that it provides little, if any, check on government excess and that invites corruption, bribery, and abuse of power.
The parties to an Anglo-American lawsuit are responsible for gathering and producing all of the evidence in the case. This challenge forces them to develop their arguments and to present their most compelling evidence, and it also preserves the neutrality and passivity of the fact finder. The adversary process is governed by strict RULES OF EVIDENCE and procedure that allow both sides equal opportunity to argue their cases. These rules also help to ensure that the decision is based solely on the evidence presented. The structure of this legal system naturally encourages zealous advocacy by lawyers on behalf of their clients, but the code of ethics governing the conduct of lawyers is designed to curb the tendency to attempt to win by any means.
The adversary system has staunch defenders as well as severe critics. The image of the courtroom as a battleground or playing field where contestants vie for victory is evident in the news media’s preoccupation with who is “winning” or “losing” or “scoring points” in such highly visible cases as the 1995 trial of O. J. Simpson, an actor, sportscaster, and former professional football player who was tried for killing his former wife, Nicole Brown Simpson, and her friend Ronald Goldman.
The emphasis on “winning at all costs” without commensurate concern for truth-seeking dismays some U.S. citizens, and a growing number are demanding reforms in the legal system. During the 1980s and 1990s, the use of alternative forms of dispute resolution such as mediation and arbitration grew dramatically. However, defenders of the adversary system note that these alternatives have been used all along, in the form of settlement conferences, minitrials, and summary jury trials, and that the vast majority of lawsuits are already settled before the parties ever appear in court.
When a dispute cannot be resolved without a trial, the adversary system is the established method of adjudication in the United States. Indeed, the organized bar remains committed to the notion that vigorous advocacy by both sides of a legal controversy ultimately leads the judge or jury to the facts needed for a fair resolution and that it is the process that is best calculated to elicit the truth and to protect individual rights. Although many concede that the adversary system is imperfect and that it may be subject to abuse and manipulation, the majority still believe that, by giving all parties and their advocates the opportunity to present evidence and arguments before an impartial judge, it promotes a free and pluralistic society with the best available means of settling disputes.
Alternative Dispute Resolution
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This glossary post was last updated: 26th November, 2021 | 4 Views.