Adversarial system: Difference between revisions
Jump to navigation
Jump to search
imported>Headbomb ce |
imported>OSINTsparrow m Punctuation edit. |
||
| Line 1: | Line 1: | ||
{{Short description|Type of legal system}} | {{Short description|Type of legal system}} | ||
{{More citations needed|date=February 2021}} | {{More citations needed|date=February 2021}} | ||
The '''adversarial system''' | The '''adversarial system''', also called '''adversary system''', '''accusatorial system''',<ref>[[Malloy v. Hogan]]</ref> or '''accusatory system''',<ref>{{cite web | url=https://www.ojp.gov/ncjrs/virtual-library/abstracts/accusatory-system-v-inquisitorial-system-procedural-truth-v-fact | title=Accusatory System v. The Inquisitorial System - Procedural Truth v. Fact? (From Criminal Evidence Law Reform - Proceedings, P 83-91, 1981 - See NCJ-84738) | Office of Justice Programs }}</ref> is a legal system used in the [[common law]] countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a [[judge]] or [[jury]], who attempt to determine the truth and pass judgment accordingly.<ref name="Hale">{{cite book|last=Hale|first=Sandra Beatriz|title= The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter |publisher=John Benjamins|date=July 2004|page=31|isbn=978-1-58811-517-1|url=https://books.google.com/books?id=HVwg_sQ5a5UC&q=%22adversarial+system%22&pg=PA31}}</ref><ref name="Richards">{{cite book|last=Richards|first=Edward P. |author2=Katharine C. Rathbun|title=Medical Care Law|publisher=Jones & Bartlett|date=1999-08-15|page=6|isbn=978-0-8342-1603-7|url=https://books.google.com/books?id=6FvwvJ-sJiAC&q=%22adversarial+system%22&pg=PA6}}</ref><ref name="Care">{{cite book|last=Care|first=Jennifer Corrin |title=Civil Procedure and Courts in the South Pacific|publisher=Routledge Cavendish|date=2004-01-12|page=3|isbn=978-1-85941-719-5|url=https://books.google.com/books?id=fbuuXuZjceMC&q=%22adversarial+system%22&pg=RA1-PA8}}</ref> It is in contrast to the [[inquisitorial system]] used in some [[civil law (legal system)|civil law]] systems (i.e. those deriving from [[Roman law]] or the [[Napoleonic Code]]) where a judge investigates the case. The adversarial system is the two-sided structure under which [[Criminal procedure|criminal trial]] courts operate, putting the prosecution against the defense. | ||
The adversarial system is the two-sided structure under which [[Criminal procedure|criminal trial]] courts operate, putting the prosecution against the defense. | |||
==Basic features== | ==Basic features== | ||
Adversarial systems are considered to have three basic features. The first is a neutral decision-maker such as a judge or jury. The second is presentation of evidence in support of each party's case, usually by lawyers. The third is a highly | Adversarial systems are considered to have three basic features. The first is a neutral decision-maker such as a judge or jury. The second is presentation of evidence in support of each party's case, usually by lawyers. The third is a highly structured procedure.<ref name="Coughlan 1993">{{cite journal |last1=Coughlan |first1=Stephen G. |title=The "Adversary System": Rhetoric or Reality?* |journal=Canadian Journal of Law and Society |date=1993 |volume=8 |issue=2 |pages=139–170 |doi=10.1017/S0829320100003203|s2cid=147489274 }}</ref> The [[rules of evidence]] are 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 deemed to not be trustworthy, or irrelevant to the legal issue at hand.<ref name="Power 2012">{{cite journal |last1=Power |first1=Mark C |last2=Larocque |first2=Francois |last3=Bosse |first3=Darius |title=ConstitutionalLitigation, the Adversarial System and some of its Adverse Effects |journal=Review of Constitutional Studies |date=2012 |volume=17 |issue=2 |page=1 |url=https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/17RevConstStud1.pdf |access-date=11 January 2023}}</ref> 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. | ||
structured procedure.<ref name="Coughlan 1993">{{cite journal |last1=Coughlan |first1=Stephen G. |title=The "Adversary System": Rhetoric or Reality?* |journal=Canadian Journal of Law and Society |date=1993 |volume=8 |issue=2 |pages=139–170 |doi=10.1017/S0829320100003203|s2cid=147489274 }}</ref> | |||
The [[rules of evidence]] are 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 deemed to not be trustworthy, or irrelevant to the legal issue at hand.<ref name="Power 2012">{{cite journal |last1=Power |first1=Mark C |last2=Larocque |first2=Francois |last3=Bosse |first3=Darius |title=ConstitutionalLitigation, the Adversarial System and some of its Adverse Effects |journal=Review of Constitutional Studies |date=2012 |volume=17 |issue=2 |page=1 |url=https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/17RevConstStud1.pdf |access-date=11 January 2023}}</ref> 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. | |||
===Parties=== | ===Parties=== | ||
| Line 30: | Line 25: | ||
The name "adversarial 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 adversarial 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|European Convention on Human Rights and Fundamental Freedoms]] in Article 6 requires these features in the legal systems of its signatory states. | The name "adversarial 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 adversarial 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|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 adversarial system and the inquisitorial system occurs when a criminal defendant admits to the crime. In an adversarial 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; an obviously [[false confession]] will not be accepted even in common law courts. By contrast, in an inquisitorial 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 bargain]]ing in adversarial 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. | One of the most significant differences between the adversarial system and the inquisitorial system occurs when a criminal defendant admits to the crime. In an adversarial 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; an obviously [[false confession]] will not be accepted even in common law courts. By contrast, in an inquisitorial 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 bargain]]ing in adversarial 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. Plea bargains are becoming more common in 27 civil law countries.<ref name="Bicek, R.">{{cite web|last=Bicek|first=Rudolf|title= Plea bargaining: a new trend in European criminal proceedings |publisher= |date=January 2022|url=https://www.schoenherr.eu/content/plea-bargaining-a-new-trend-in-european-criminal-proceedings/}}</ref> | ||
==See also== | ==See also== | ||
{{Portal|Law}} | {{Portal|Law}} | ||
* [[Adversary evaluation]] | *[[Adversary evaluation]] | ||
*[[Exclusionary rule]] | |||
* [[Inquisitorial system]] | |||
* [[Judicial interpretation]] | * [[Judicial interpretation]] | ||
* [[Parallel thinking]]{{snd}}described as a systemic alternative | * [[Parallel thinking]]{{snd}}described as a systemic alternative | ||