power_point.pptxTerrell Franklin Grantham University CJ305 Week 5
Adversarial Criminal Law System
Running Head: Adversarial Criminal Law System
Basically, there are two systems of justice, the inquisitorial and the adversarial system. The inquisitorial system is quite different from the adversarial system. This is because in the inquisitorial system, the lawyers take the passive role as the judges take the active role. It is the judges who actually steer not only the search for evidence but also question both the witnesses, respondents and the
Running Head: Adversarial Criminal Law System
defendants. However, for the Adversarial Criminal Law System, advocacy is highly relied on. Here, the judges only act as the umpires in any given case and are therefore their roles are usually passive. Since in this system advocacy is usually highly relied, the battle is therefore usually between the lawyers of the two parties and hence making it the duty of the lawyer to act both faithfully and zealously
Running Head: Adversarial Criminal Law System
to his/her client. According to this system, faithful and zealous advocacy simply means the duty to whole heartedly seek, look for, neutralize or even destroy any unfavorable evidence not to mention pressing for the most favorable interpretation.
The US legal system is the Adversarial System. This system has a number of basic values which include: the right to trial to justice, the presumption to innocence not to mention
Running Head: Adversarial Criminal Law System
protection of individual rights.
However, this system faces some controversy where the proponents believe that it is the best system that can be used to not only reduce corruption but also preserve neutrality of both the jury and the judges. These proponents also believe that the Adversarial System greatly helps to yield the truth by letting both parties fight under given rules which eventually let the truth
Running Head: Adversarial Criminal Law System
surface on its own. On the other hand, the opponents argue that the Adversarial System is actually a system of procedural justice rather than substantive justice. Procedural justice does not actually present the actual justice but just a motion that looks like justice unlike the substantive justice is more of tangible and real justice. Furthermore, the Adversarial system dwells more on winning rather than finding the truth since the lawyers
Running Head: Adversarial Criminal Law System
are more likely to hide evidence which does not favor them. The opponents also argue that this system curtails ones right to be heard before both a impartial jury and a neutral judge in any court. However, this system fails to offer this.
So, how does the Adversarial procedure work? This procedure actually requires both parties to not only bring out their evidence but to also
Running Head: Adversarial Criminal Law System
to bring their witnesses in court and cross-examine them.
In this system, each party is expected to conduct its own investigation thoroughly. However, in the case of criminal proceedings, things are usually a bit different, it is the prosecution that presents the people and usually, it always have the police at its disposal with both their laboratories and the investigators. The
Running Head: Adversarial Criminal Law System
however is expected to look for not only its own finances but also resources for the investigation matters. The two parties that is the defense and the prosecution are both allowed by subpoena to command the attendance of the witnesses as the case proceeds. The defendant’s attorney opportunities to conduct a broader investigation may at times be curtailed especially in the case where the defendant
Running Head: Adversarial Criminal Law System
is indigent. According to this system especially in the cases of criminal law, the accused does not have to necessarily be present in the grand jury indictment proceedings. However in the case where the grand jury hands down an indictment, all the evidence, proceedings or any other kind of testimony that had been presented to the grand jury has to be made available to the defendant.
Running Head: Adversarial Criminal Law System
Adversary features are usually found in both the appellate proceedings and the contested trial. Therefore, it is expected that the decisions by the appellate court have to be ordinarily preceded by the arguments of both parties. The adversarial features are also displayed by the pretrial phase of the criminal process. This system also has the privilege against self-incrimination. This system also gives one the
Running Head: Adversarial Criminal Law System
right to not only pretrial release but also hostility to preventive detention and also most not notably the presumptions of innocence. However, this infamous practice of plea bargaining between the defense and the prosecution is mostly treated as subverting adversariness. At a point where after these kind of negotiations the defendant ends up pleading guilty, the contested trial, the core of
Running Head: Adversarial Criminal Law System
the adversary system does not necessarily take place. Furthermore, the defendant may not be forced to incriminate him/herself since the pressure used to encourage guilty pleas at this point threatens the adversary principle. However, it is good to note that these negotiations are a little bit adversary since it is dominated by both the lawyers and the parties and not the court.
Running Head: Adversarial Criminal Law System
This system also has its exclusive source in liberal ideology a good example been the image commonly used by the lawyers commonly known as maintaining an equality of arms that is between the defense and the prosecution. However, this kind of a goal only makes sense where liberal theories treat state interests as analogous to private interests and not superior.
Running Head: Adversarial Criminal Law System
The need to prove guilty beyond a reasonable doubt, the presumption to innocence not to mention the other related innocence are in a way associated to the liberal values.
Most people adore this system because of a number of reasons: First of all, this system has a more competitive style of bringing forward not only evidence but also the argument which is believed to produce a more accurate result.
Running Head: Adversarial Criminal Law System
This is unlike the inquisitorial system where the judge takes over everything including the proof-taking. This system also to some extent protects the accused.
In the adversarial system, there are a number of rules of procedures and also rules of evidence which are quite strict so as to ensure that both the parties present are given equal
Running Head: Adversarial Criminal Law System
opportunities to present their case and also that the end trial is not only unbiased but also fair.
The rules of evidence:
1. The only evidence allowed is that which is not only reliable but also relevant. However, the evidence can be either oral, in form of expert evidence or even in form of a documentary.
Running Head: Adversarial Criminal Law System
2. That only particular types of evidence are admissible, the rest are considered inadmissible.
3. Hearsay evidence and any other kind of evidence that has been obtained unlawfully is considered as inadmissible evidence.
The above rules are put in place so as to ensure that there is fairness when handling the cases.
Running Head: Adversarial Criminal Law System
Rules of procedure.
Questioning stages are strictly organised.
A hearing is expected to be not only single but also continuous.
Delays are expected to occur but are to be ideally minimized.
References.
Houghton Mifflin, (2016).The Adversary Justice System. CliffsNotes.
Mirjan DamaŠka, (2002). Adversary System. ENCYCLOPEDIA.com.
