The Adversary System
- Two parties oppose one another, where the case is presided over by an impartial, independent third party.
- Strict rules of evidence admissibility.
- Each side presents witnesses and evidence to argue their side.
- Each side tests the evidence of the other side through cross examination.
- Witnesses can be subjected to intense scrutiny – it can be especially difficult for victims.
- Ability of the lawyer to argue and persuade a jury is more important than the actual evidence and facts of the case; the person with the better lawyer has an advantage.
- It has institutional inequality:
- Slow process
- Costly process
- Formality can be a problem
The court process in Australia uses the adversarial system for trial. The inquisitorial system is used in civil law countries, for example France and Italy.
In the inquisitorial system of trial the magistrate or judge collects the evidence from both sides in cooperation with the prosecution after inquiries have been made
In the adversarial system of trial the two sides of the case try to present and prove their version of the facts and disprove the other sides version. An impartial judge (and sometimes a jury) listens to the evidence and makes a decision as to which side is correct.
Features of the adversarial system:
– Strict rules of evidence, such as those involving hearsay and opinion
– There is a presumption of innocence
– Witnesses are examined orally and can only answer the questions asked
– The past record of the accused may only be examined during sentencing
In the adversarial criminal case:
– The case is called a prosecution
– The party who takes the case to court is called the prosecution. The prosecution is usually the state (the government), sometimes called the crown.
– The party against whom the case is brought is called the defendant.
– After the case is decided, the court can sentence the wrongdoer is he or she is found guilty. Then the court imposes a sanction (punishment).
In a criminal case, the prosecution presents evidence to try to prove that the defendant is guilty of the crime that he/she is charged, while the defence tries to cast doubt on the prosecution’s evidence and show that the defendant is not guilty.
Extract from Legal Studies Stage 6 Syllabus. © 2009 Board of Studies NSW.