The Adversary System. To provide a procedure for disputing parties to present and resolve their...
-
Upload
jerome-riley -
Category
Documents
-
view
214 -
download
0
Transcript of The Adversary System. To provide a procedure for disputing parties to present and resolve their...
The Adversary System
To provide a procedure for disputing parties to present and resolve their cases in as fair a manner as possible
Controlled by strict rules of evidence and procedure
Role of the Adversary System
Major features of the adversary system Role of the parties Role of the judge Standard and burden of proof Need for legal representation Need for rules of evidence and procedure
Features of the Adversary System
Party Control - Each party controls their own case (within the rules of evidence and procedure)
Parties are responsible for: Instigating the proceedings – the person who
believes they have been wronged (plaintiff is civil, prosecution in criminal) brings the case to court
Investigating the facts
Role of the parties
Parties are also responsible for: Deciding which facts to bring to court –
each side decides which evidence they wish to present to court (although prosecution must disclose all evidence even if it is not beneficial)
Investigating the law that is relevant to the case
Role of the parties
Parties are also responsible for: Deciding whether to have a jury in a civil case Choosing whether to have legal
representation
Role of the parties
Party control allows the parties to feel that they are in control of the situation and are responsible for the outcome
Satisfies the competitive spirit
Gives people the opportunity to fight to win their case – leads to a sense of satisfaction
Role of the parties
In civil cases – it means that cases can be resolved
But it makes the process expensive – which means that not everyone has effective access to mechanisms to resolve disputes
The elements
Impartial umpire - Ensures the court processes and procedures are carried out according to the rules of evidence and procedure
May only ask questions to clarify matters
Minimises unfairness to either party
Role of the Judge
Decides: Admissibility of evidence Questions of law
Directs the jury whether there is one
Decides the outcome of a case where there is no jury
Role of the judge
For the adversary system to work effectively the judge must be impartial
Essential that the decision maker (judge or jury) is independent from the case Judge has no prior knowledge of the case
before hearing the evidence presented
Role of the Judge
The impartial, independent judge ensures a fair and unbiased hearing
The elements
Burden of proof lies with the party bringing the case to court
Criminal – prosecution
Civil – plaintiff
Person who brings the case must prove the other party was in the wrong
Burden and Standard of Proof
Standard of proof – the strength of evidence needed to prove the case
Criminal – beyond reasonable doubt
Civil – on the balance of probabilities
Burden and Standard of Proof
Essential elements of the adversary system
Burden of proof indicates who must begin the battle
Standard of proof indicates the strength of proof required to decide the winner
Burden and Standard of Proof
Burden and standard of proof ensure a fair and unbiased hearing
The elements
Legal representatives – prepare the case on behalf of the parties
Legal representatives are experts – are familiar with rules of evidence and procedure
Help to ensure that the parties are able to present their best possible case Assists in achieving a just outcome
Need for legal representation
Bringing out the truth and showing your case in the best light depends on being legally represented – with the best possible lawyer
Presenting a case without legal representation is very difficult and can result in an unjust outcome
Need for legal representation
For the adversary system to work effectively there needs to be equal representation
Parties should have an equal opportunity to present their cases
Truth should be brought out through both sides bringing their evidence and cross examination by the other side
Need for legal representation
If one party is better represented than the other, this could lead to an unfair advantage and possibly an incorrect result – so it will not be a fair and unbiased hearing
The elements
A person who can afford a more competent barrister is more likely to win than a person representedby a less experienced barrister this means that there is not effective access for everyone
The elements
Evidence is concerned with proof of facts Rules of evidence aim to ensure fair and
equal treatment
Need for rules of evidence and procedure
Evidence can be Oral – given by witnesses Sworn statements (called an affidavit) Objects – murder weapons, photos diagrams, tape-
recording Circumstances and facts (called circumstantial
evidence)
Need for rules of evidence and procedure
Adversary system relies more heavily on oral evidence given by witnesses than documentary evidence
Need for rules of evidence and procedure
Rules of evidence are primarily for the protection of the parties
Ensure that Parties are treated fairly Jury is not distracted by irrelevant material Unreliable or illegally obtained evidence is not heard by
the court Evidence is not unduly prejudicial to the defence Prior convictions are not admissible
Need for rules of evidence and procedure
Rules of procedure provide a framework in which court cases take place
Provide the way in which the court will try to bring about a resolution
Procedures are aimed at treating both sides fairly
Create at atmosphere of formality so that the decision is followed
Need for rules of evidence and procedure
Assist the parties in achieving a just outcome
Rule of evidence keep the contest fair Rules of procedure should assist the truth to
emerge
Need for rules of evidence and procedure
Hearsay evidence Prior convictions (unless used as propensity
evidence) Irrelevant evidence Opinion Evidence obtained illegally Privileged information
Evidence not admissible
Only allow certain types of evidence to ensure a fair and unbiased hearing
Rules of procedure help assist timely resolution of disputes
The elements
The jury system is NOT a feature of the adversary system – it is an entirely
different system!
Juries