Judicial system of trial in English legal system (practiced in Great Britain,

most commonwealth countries, and the US except the US state of Louisiana, and Canada's
Quebec province). In this system, a case is argued by two opposing sides who have
the primary responsibility for finding and presenting facts. The prosecutor tries to prove the
defendant is guilty, and the defendant's attorney argues for the defendant's acquittal. The case
is then decided by a judge (or a jury) who does not investigate the facts but acts as an umpire.
Also called accusatorial procedure. See also inquisitorial system.

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The Adversarial System

Our system of justice is based on the adversarial model. The adversarial system implies that
two parties assume opposite positions in debating the guilt or innocence of an individual. In
this scenario, the judge is required to be neutral at the contest unfolding before him or her.
The role of the judge in this arrangement is to ensure the trial proceeds according to the
procedural rules of trial or due process of law and that evidence entered is done so according
to established rules and guidelines.

The basis of this approach in criminal matters in which two sides engage in debate and battle
about the guilt or innocence of an accused and since each side wants to win, then the debate
will foster a critical look at the issues and the calling of evidence to be examined by both
parties. By engaging in this discourse, the truth should emerge as the judge watches on. This
means that the roles played by the various court officers are very distinct. The defence
counsel as one adversarial party gather the arguments to defend the client and attacks the
credibility and worthiness of the evidence presented by the crown. The crown prosecutor puts
forth the arguments on behalf of the crown or state and gathers and presents the evidence
pointing that the accused has committed an offence. The judge is the referee and arbitrator on
issues related to clarifying what the law is. The judge not intervene on any side except where
procedural fairness is jeopardized by either party.

The evidence and witnesses that are called are left up to the two arguing parties, the defence
counsel and the crown. The judge is not involved in what is presented to the court. If the
crown wishes not to call certain evidence or individuals as witnesses even though it may help
shed light on the case, the judge cannot intervene. This leaves the two parties in charge of the
case and the direction it takes.

The advantages of the adversarial system include.

 the judge reserves comment until all evidence from both parties are heard.
 this makes the judge appear more neutral since judgement must be reserved until all
the evidence is heard

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The disadvantages of the adversarial system include

 the finding of evidence rests on the resources of the two parties which may be unequal
 parties only provide evidence favourable to their arguments

The Inquisitorial System

The inquisitorial system is the common procedural approach in most civil law jurisdictions.

In an inquisitorial system, a judge is involved in the preparation of evidence along with the
police and in how the various parties are to present their case at the trial. The judge questions
witnesses in depth and can even call witnesses to appear while prosecution and defence
parties can ask follow up questions. The judge plays the central role in finding the truth and
all the evidence that either proves the innocence or guilt of the accused before the court. The
judge takes on the role of prosecutor and judge in the inquisitorial system. Some other major
distinctions is that there are no jury trials in an inquisitorial system and a judge can compel an
accused to make statements and answer questions. This differs dramatically from the
common law and adversarial right not to take the stand in one's own defence.

The Adversarial System

Trials in Canada are quite a bit like team games. The prosecutor and his aides face off against
the defence lawyer and hers. The two sides are adversaries in a serious game with serious
goals. The prosecutor, called the Crown, actually represents the people of Canada. The
defence lawyer represents the accused. Their game skills are not stick handling or slam
dunking but evidence and argument. The judge is the referee. He calls the off-sides and
penalties, and sees that the adversaries stick to the rules of law and fair play.

Such, basically, is the adversarial system. The inquisitorial system, used in France and some
other European countries, goes at the question of guilt or innocence quite differently. Here,
instead of two adversaries going at each other, we have a judge/prosecutor/inquisitor (the
names may differ) who assemble the evidence, interrogate the witnesses and make a
judgement. More important cases in France are tried by a tribunal of several judges, and in
major criminal trials there, a nine member jury is added to the tribunal. By being a referee,
the judge in this system has become into an inquisitor, one who has much more responsibility
for actually conducting the case.

Our system makes the adversaries responsible for digging out the facts on which a decision
will be based. Canadian law works on the theory that the two opponents in a case, or their
lawyers, will work harder than anyone else to produce evidence favourable to his/her side; no
one else has as strong a motive. At the very core of the adversarial system, in fact, is the
belief that the individual is responsible for preserving individual rights.

That is not to say that our method of trying cases by vigorous pro and con argument is
perfect. In earlier days verdicts, both civil and criminal, usually favoured the client with the
fattest wallet. The evidence might have suggested otherwise, but this client could afford the
very best in lawyers, someone who could make mincemeat of anyone the other poor litigant
could hire. With the arrival of legal aid, the situation improved, but was still skewed in favour
of the wealthy.

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Another way in which our system of adversaries may fall short lies in the law itself. Writing
laws is not as exact a science as we would like to think, and laws are sometimes vague and
ambivalent. This gives the judge a good deal of discretion in interpreting the law, which may
or may not result in a biased verdict.

On most counts, though, we think the system of adversaries beats the system of inquisitors.
We feel that the inquisitor has less incentive to probe for every shred of evidence, and that
argument for and against leads to better justice than inquisition. On this brief summation, the
defence rests.

The adversarial system is used in most countries throughout the world and the only way to
provide any semblance of fairness in the judicial system as opposed to the inquisitorial
system where there is not a semblance of fairness.

In Anglo-American law, the principal method of offering evidence in court. It requires the
opposing sides to present pertinent information and to introduce and cross-examine witnesses
before a jury and/or a judge. Each side must conduct its own investigation. In criminal
proceedings, the prosecution represents the government and has at its disposal the police
department with its investigators and laboratories; the defense must arrange and pay for its
own investigation. (Legal aid is available for the poor.) In civil (noncriminal) proceedings the
adversary system works similarly, except that both sides engage private attorneys to prepare
their cases. Skillful questioning often produces testimony that can be interpreted in various
ways; in cross-examination, lawyers seek to alter the jury's initial perception of the
testimony.

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 each advocate representing his or her
party's positions and involves an impartial person, usually a jury, trying to determine the truth
of the case.

As opposed to that, the inquisitorial system usually found on the continent of Europe among
civil law systems (i.e., those deriving from Roman law or the Napoleonic Code) has a judge
(or a group of judges who work together) whose task is to investigate the case.

The adversarial system is the two-sided structure under which criminal trial courts operate
that pits the prosecution against the defense. Justice is done when the most effective
adversary is able to convince the judge or jury that his or her perspective on the case is the
correct one. }{
An adversary system is a legal system in which cases brought before the court are presented
by two opposing sides before a neutral panel of individuals which can include a judge and
jury. Once both sides have argued their cases, the panel determines the facts of the case and
any appropriate actions which need to be taken. This is in contrast with an inquisitorial
system, in which cases brought to court are tried in front of a panel of people who act as
questioners in addition to deciders. Both systems have advantages and disadvantages and
there has been much debate about whether or not one is superior to the other.
Common law nations commonly use an adversary system, and the roots of this system are
quite ancient. By contrast, nations which rely on civil law tend to be more likely to utilize an

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 inquisitorial system, due to differing approaches in legal style, and this legal system is also
quite venerable. Some nations utilize elements of both systems.
Adversarial systems, as they are also known, are sometimes criticized for setting up a system
in which sides on a case are obliged to contest with each other. Some critics believe that the
adversary system encourages deception and a variety of questionable legal tactics because the
goal is to win at all costs, in contrast with an inquisitorial system which relies on a factfinding
panel to determine the truth.

Adversarial system
The adversarial system (or adversary system) is a legal system used in the common
law countries where two advocates represent their parties' positions before an impartial
person or group of people, usually a jury or judge, who attempt to determine the truth of the
case.[1][2][3] It is in contrast to the inquisitorial system used in some civil law systems (i.e.
those deriving from Roman law or the Napoleonic code) where a judge, or group of judges
investigates the case.
The adversarial system is the two-sided structure under which criminal trial courts operate
that pits the prosecution against the defense. Justice is done when the most effective
adversary is able to convince the judge or jury that his or her perspective on the case is the
correct one.

Contents

 1 History of the adversarial process

 2 Basic features
 3 Comparisons with the inquisitorial approach
 4 See also
 5 References

History of the adversarial process

Some writers trace the process to the medieval mode of trial by combat,[4][5] in which some
litigants, notably women, were allowed a champion to represent them. The use of thejury in
the common law system seems to have fostered the adversarial system and provides the
opportunity of both sides to argue their point of view.

Basic features
As an accused is not compelled to give evidence in a criminal adversarial proceeding, he may
not be questioned by a prosecutor or judge unless he chooses to do so. However, should he
decide to testify, he is subject to cross-examination and could 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 by the prosecutor and 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. However, this is mainly because it is not the prosecutor

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but the judges who question the defendant. The concept of "cross"-examination is entirely
due to adversarial structure of the common law.
Judges in an adversarial system are impartial 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.
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 he/she believes is not trustworthy or irrelevant to the legal issue
at hand.
All evidence must be relevant and not hearsay evidence.
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.
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 and Fundamental Freedoms in Article 6 requires these features
in the legal systems of its signatory states.
The right to counsel in criminal trials was initially not accepted in some adversarial 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
the right to have legal counsel (the Prisoners' Counsel Act 1836). In the United States,
however, personally retained counsel have had a right to appear in all federal criminal cases
since the adoption of the Constitution and in state cases at least since the end of the Civil
War, although nearly all provided this right in their state constitutions or laws much earlier.
Appointment of counsel for indigent defendants was nearly universal in federal felony cases,
though it varied considerably in state cases.[6] It was not until 1963 that the U.S. Supreme
Court declared that legal counsel must be provided at the expense of the state for indigent
felony defendants, under the federal Sixth Amendment, in state courts. See Gideon v.
Wainwright, 372 U.S. 335 (1963).
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, a false confession will not be accepted
even in common law courts. By contrast, in an inquisitiorial 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 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.

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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 defense. In England the Criminal Justice and
Public Order Act 1994 allowed such inferences to be made for the first time in England and
Wales (it was already possible in Scotland under the rule of criminative circumstances). 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 the United
States, the Fifth Amendment has been interpreted to prohibit a jury from drawing a negative
inference based on the defendant's invocation of his right not to testify, and the jury must be
so instructed if the defendant requests.

Comparisons with the inquisitorial approach

There are many 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 whether or not these systems would come to the same results.
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 more fair 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 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 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.
Proponents of inquisitorial justice dispute these points. They point out that most cases in
adversarial systems are actually resolved by plea bargain and settlement. Plea bargain as a
system does not exist in an inquisitorial system. Most legal cases in adversarial 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 prosecutors to bring charges
far in excess of what is warranted and defendants to plead guilty even when they believe that
they are not.

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 Strengths and Weaknesses: Adversary
System
“The Adversary System of Trial” – Strengths and
Weaknesses
 Adversary System: This is a system of trial used in
Australia in which two sides contest to win the case. When
resolving both criminal and civil cases in Australian
courts, the system of trial used is the adversary system.
Under this system, the parties involved are adversaries,
meaning they are opponents. The ultimate aim of the
adversary system is to find a winner and a loser in a court
contest. The judge, magistrate or a jury decides which
party wins the case.

The adversary system has five distinct features by

which it is defined:
 the role of the parties
 the role of the judge
 standard and burden of proof
 the need for professional representation
 evidence(rules of evidence) and procedure (examination
in chief, cross examination, re examination)

STRENGTHS OF THE ADVERSARY SYSTEM

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1. It is likely to test the validity of arguments and discover
the truth. Each side is given equal opportunity to present
arguments for their case and to critically question the
arguments of the opposition through the process of
witnesses being examined-in-chief, cross-examined and
re-examined. The truth is ultimately reached because the
desire to win the battle will ensure that the truth is
brought out to the court in the end.
2. Legal representatives have a priority duty to the court.
Although they are obliged to present their client’s case in
the best possible light, they cannot mislead the court by
making allegations they know are false or by deliberately
failing to inform the court of a precedent relevant to the
case.
3. This system encourages objective consideration of the
evidence. The rules of evidence and procedure represent
an honest attempt to minimise human error and ensure
fair consistency. These rules ensure that proceedings are
carried out efficiently, that irrelevant questions are
eliminated and that the burden of proof is placed on the
person making the accusation.
4. This system is accepted by most of the community. It
appears to be a fair, sensible and consistent method of
resolving disputes. This system satisfied the community’s
idea of fair play and produces confidence in the decision
made and the legal system.
5. It requires the parties involved to be personally
responsible for the preparation and handling of their case.
This ensures that people fulfil the requirement for
individual responsibility. This system also allows for the
use of professional advocates and representatives to
ensure the best preparation of the litigants’ case.

WEAKNESSES OF THE ADVERSARY SYSTEM

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1. The adversary system is slow which means that too many
people are denied justice for too long because the
adversary system tends to lengthen the trial process.
Justice delayed is justice denied!
2. This system is expensive. The adversary nature of our trial
system also requires litigants to have legal representation.
The high cost of legal advice and legal representation can
seriously hinder those who cannot afford it. High costs
may prevent some people from enforcing rights they may
have or it may force them to economise on the
presentation of their case. As such, the adversary system
tends to favour those who can afford better legal
representation. Some parties may be disadvantaged by not
being able to afford legal rep or by hiring lawyers with
inferior courtroom skills. This may mean that vital
evidence which needs to be drawn out by questioning may
not be revealed in the trial and as such, the truth may not
always emerge.
3. There is an emphasis on oral evidence. This can mean that
witnesses can be confused by highly skilled lawyers and
thus, their evidence may be seen as being unreliable.
Witnesses also need to rely on their memory of events,
which often occurred some time ago because of delays in
getting a case to trial. Delays in the system are a constant
problem for those seeking resolution of disputes.
4. In one continuous trial, the amount of information to be
absorbed by a judge or jury can be quite extensive. Jurors
can be confused by technicalities associated with the rules
of evidence and with the technical nature of information
provided by expert witnesses. If this information is not
understood by jurors, it may not be given sufficient
acknowledgment and consideration.