This website uses cookies to ensure you have the best experience. Learn more

The Adversarial System Essay

2280 words - 9 pages


In the discussion which follows, the function served by ‘evidence’ within the adversarial system will be considered. The central importance of relevance to the admissibility of evidence will be linked to the purpose served by the tribunal of fact. The range of factors which impact on the criminal justice system will act as a basis to consider the justification for the exclusion of certain evidential material. Developments in attitudes as a result of recent legislation will lead the discussion to the conclusion that the above statement is not sustainable

Setting the scene


The adversarial system involves competing versions of disputed events being advanced by parties to the litigation. The purpose of this ‘battle’ is much debated in the academic literature. Certain commentators emphasise the ‘truth seeking’ theory of adjudication and the belief that justice absolutely depends on it. Whilst the nature of ‘truth’ in itself may be contested, it is accepted, for the purpose of this discussion, that it is the central goal of the adversarial system. Murphy draws attention to” other legitimate concurrent goals” in the context of the judicial trial which include the upholding of ‘fairness’ the exclusion of evidence which may be ‘inherently suspect/unreliable’ or ‘prejudicial’. The role of evidence in the accurate reconstruction of past events and what restraints, if any, should be in place will be explored.


The adversarial system involves the State pitted against the individual defendant. There is little doubt that a significant disparity exists between the combatants. Stockdale and Casel claim that many of the basic rights extended to the defendant are attempts to compensate for this inherent disparity and to put the adversaries on a more level playing field. Fundamental to the notion of ‘fairness’ are the provisions of Article 6 of the European Convention of Human Rights (ECHR) and the courts responsibilities, as a ‘public authority’ In addition, for the maintenance of public confidence, it is essential that the criminal justice system is, and is seen to be, in accord with rule of law.
Observers have noted in recent years a shift in government policy toward what is perceived as ‘redressing the balance’ in criminal justice, to be more advantageous to victims and less so to the accused. (have implications for current exclusionary rules)

Nature of evidence.

May and Powles view evidence as ‘something’ which tends to prove or disprove something else. In the context of a trial this consists of information placed before the court for the purpose of proving or disproving facts in issue. Beecher-Monas states that in a system based on the rule of law and which aspires to ‘truth’, the accuracy and reliability of such information is essential. The mechanisms available to the court to determine the latter, centre on the presentation of evidence under oath, cross-examination and the observation...

Find Another Essay On The Adversarial System

THE adversarial nature of the trial provides an effective means of getting to the truth of what happened?. Discuss.

2089 words - 9 pages The main aim of the Justice System is to obtain the truth and enforce laws, statutes and legislation created by the government. However some would argue that some legal procedures in some countries are not as efficient as others at find the truth of what actually happened. The two systems which are constantly being analysed is the Adversarial and the Inquisitorial procedure which both have supporters and critiques, advantages and

Deffense Attorneys Essay

1672 words - 7 pages unknown. If Jeff simply pursued what was in front of him as a prosecutor, he would have won the case but lost in the pursuit of justice. Some critics, including POSC 130g Teaching Assistant Simon Radford, argue that in the America’s system of adversarial legalism, lawyers are not intended to pursue the truth, as evidenced by the gamesmanship nature of evidence rules that often results in arbitrary rules allowing criminals to “walk” (Radford 2013

Hong Kong Magistrates trials are more inquisitorial than adversarial. Discuss

1915 words - 8 pages Magistrates leans to one system over the other.Adversarial system:Ask any layperson and his/her perception of a criminal trial will be akin to an adversarial model. As the name suggests the trial is conducted between two parties (the defence representing the accused, the prosecution representing the victim ) going against one another, with a neutral judge or jury to be the final arbiter in determining which side of the facts represents the truth. The

Australian adversary system

2172 words - 9 pages Since the English arrival in Australia they brought with them a system of criminal trial that they used in their criminal courts. This system is called the Adversarial system, it has been subject to criticism by many people in the legal field, legal commentators and ordinary citizens who are simply interested in law and its procedure in Australia.This essay will discuss that the current system in place is a second rate system when it is compared

Comparing a Aboriginal and Australian Justice Systems

1486 words - 6 pages law breaches the basic structure. (Peterson) Adversarial & Inquisitorial Systems : Under the adversarial system, litigants are represented by their advocates or counsels before a Judge or Jury whereas, in the inquisitorial system a judge or group of judges investigate the case at hand. India, Australia and the United Kingdom follow the adversarial system. Both type of systems have their share of proponents and critics. While proponent of the

Features of The Litigation and Mediation Process

931 words - 4 pages features of litigation which have a variety of effects on the parties of a dispute. Litigation, otherwise known as Legal Disputation, are civil legal proceedings in a court between contesting parties, in which the plaintiff commences an action in which a court is asked to determine the dispute between the plaintiff and the defendant or defendants. The rules and basis that governs litigation is the adversarial system of trial, which involves two

Undertake a critical analysis of Dispute Resolution in satisfying the objective of access to justice

940 words - 4 pages reforms have clearly had an effect on the way in which lawyers conduct litigation. There has been a move away from the adversarial attitude to one of greater co-operation. This is encouraged by the pre-actions protocols, which the parties have to use, and which encourage early disclosure of information between the parties. As a result fewer claims are being issued in courtAlso there was a review of the criminal justice system, by Lord Justice Auld who

The Adversary Legal System In Australia

1217 words - 5 pages As the name suggests, the adversary system in Australia refers to a method of trial, which involves contestants or adversaries, that is, it is an adversarial approach in attempting to resolve legal issues between two opposing sides. There are five features of the adversary system in Australia; contest; party control; strict rules of evidence and procedures; role of the judge or magistrate and single event trials. The strengths and weaknesses of

The Impact of Formalising Plea Bargaining on Justice and Equality in the English Legal System

4139 words - 17 pages of the nineteenth century.[2] During the course of the eighteenth century, English criminal procedure underwent a transformation from a predominately non-adversarial system to an identifiably adversarial one. The introduction of these adversarial features, while providing necessary safeguards for defendants’ rights, at the same time greatly lengthened and complicated the previous summary jury proceedings. With more

Failure of the Australian Legal System to Provide True Justice

2711 words - 11 pages under section 80 of the Constitution. However, the adversarial system does have its’ disadvantages. One of the disadvantages are that the adversary system has high costs as there are various fees such as lawyer’s fees, witness fees, court administration fees, payments of jurors, etc… Other than that, even after the introduction of case flow management, there are long delays and hence making courts less accessible to

The Burden of Proof in the Case of Darling vs. Charleston Community Memorial Hospital

866 words - 4 pages award to plaintiff. Legalities of Medical Malpractice The system of law governing the resolution of civil disputes between parties in the United States is referred to as the adversarial system, where respective advocates for each side in a dispute skillfully present arguments before an impartial party, such as jury or judge. The adversarial system is used in common law countries to resolve disputes related to negligent conduct, whether medical

Similar Essays

The Adversarial System Essay

1198 words - 5 pages The system of criminal procedure primarily utilized in the United States is the adversarial system. The term “adversary” is easily interpreted to mean opposition. Our present criminal procedure pits two sides against each other to present their respective evidence and issues surrounding a criminal act. This paper will address the adversarial system and its expressed use in criminal court proceedings in the United States. Among the

Adversarial Justice System Essay

736 words - 3 pages The adversarial justice system is what makes up the law system in common law countries such as the United States. It relies on the skill of each lawyer representing his or her party's positions and involves a neutral third party, such as a jury, trying to determine the truth of the case. The adversarial system is a two-sided structure in which criminal trial courts prosecute against the defense. Justice is done when the most successful party is

Adversarial System Essay

1240 words - 5 pages Common to all criminal courts within Australia, our court system operates on an adversarial system. Within the court a prosecutor represents the crown and a defence representative represents an accused with both parties arguing their side of the case. Sworden (2006) identifies the adversarial system as a process which allows the truth of the matter to be determined. Using evidence, the opposing councils attempt to convince a jury their version

The Italian And English Legal Systems

1423 words - 6 pages an explanation for the above statement, it could be said that legal systems fall into two systems, the adversarial system and the inquisitorial system. Conversely, a hybrid between those two systems has formed yet another system which is identified as the mixed system. These derive from historical law and judicial practices which have been practiced for a considerable amount of time, which eventually improved and standardised. Debara.K in 2002