Adversarial System - Basic Features

Basic Features

As an accused is not compelled to give evidence in a criminal adversarial proceeding; he may not be questioned by 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 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.

As said by Judge Megan L.A Brown 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. 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.

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.