The Adversary System - Essay Example

The Adversary System The Adversary System The adversary system has a long history, and it was a feature that defined the justice process in the medieval era. The system has advanced over the years to become the concentrated process, with a salient two-side structure. Each of the sides had a defense team that presents the evidence after a rigorous process of investigation. The judge or the jury determines the case, with a mandate to exhibit neutrality and passivity throughout the case. Each of the sides has a fair chance to present its case and carry out both direct and cross-examination. There are rules that govern the acceptance of the evidence provided by the sides, in a bid to ensure that the system does not compromise access to justice. Moreover, professionalism is of critical importance, and should be exhibited by all parties. This serves to ensure that parties do not attempt to demean or abuse the process. Despite the evident use of the adversary system, it still has certain ethical issues that include access to justice, accountability, and loyalty to the client. Introduction The adversary system is a two sided structure adopted when handling cases to determine justice. In this system, advocates represent the two different parties involved in both criminal and some civil cases. The adversary system relies on the capacity of a jury or judge that must exhibit a high degree of impartiality. After both sides make concerted efforts to present their gathered evidence in a bid to convince the jury or judge, the jury or/and judge determine the winner of the case. Notably, the adversary system is a phenomenon exhibited by countries that have adopted and practiced common law. This paper will describe the features that define the adversarial system, as well as some ethical issues related to the adversarial system. History of the Adversarial System Research has revealed that the adversary system has existed since the medieval era. During this era, it was realized that certain litigants in the society lacked the capacity to effectively offer their defense when required to in the ‘the trial by combat’ system. For instance, women formed a group of vulnerable individuals that exhibited minimal capacity in the bid to defend themselves. Therefore, it was considered fair for such people to receive help from representatives in presenting their case. Different societies would later adopt this system of handling criminal cases. However, the system has changed over time, from the medieval application to the concentrated system evident in many courts in modern day (Leo, 2008). Features of the Adversarial System In modern day, the accused does not face the compulsion to offer any evidence during the court proceedings. In previous times, the accused presented evidence before the court as mandatory, a factor that served to increase the chances perjury guilt. As is evident in many courts, when the accused decides to offer evidence, he or she is subject to cross-examination to ascertain the validity of the evidence. In such cases, tailoring of the evidence is easily discovered, complicating issues for the accused. Therefore, it is preferable for the accused to decline from presenting any evidence. It is the role of defense teams to present evidence in a bid to convince the jury or judge adequately (Stacy & Lavarch, 2003). Notably, the structure of the system exempts the defense teams from any cross-examination except for questioning by the judge. This places the defense teams in an excellent position to present both evidence and written submissions. The role of the prosecutor is very critical, as he serves to ensure that the public has protection from any form of crime. He seeks to ensure that a level of fairness does exist amidst the competitive presentation of the two parties, with such fairness having its basis on the public justice. Notably, the fact that the decision- making process is neutral and passive is an outstanding defining feature of the adversary system. The judge or the jury only play a role in the determination of the case, but do not indulge in the rigorous investigative process that yield the evidence needed to develop the case. The exclusion of the judges or the jury from the investigative process is an effective strategy of maintaining neutrality. This is the case because the judges or the jury only gets to hear the theoretical frameworks of the case during the proceedings. However, it is worth noting that adversary systems that rely on a jury are highly effective because the role of the jury is stringently paying attention to the presentation and rationales from each side of the case then offering their neutral judgments. Such neutrality faces compromise in the case of a judge, who has to manage the proceedings of the court and carry out some questions. Evidently, the jury is a panel comprising of personalities who prove conversant with legal issues. The fact that the final decision depends on the opinion of several individuals only serves to place emphasis on the high level of justice when a court relies on a jury. There are chances that experience of judges may serve to introduce a form of bias in the ruling. In some countries, the adversary system relies on both a judge and a jury (Jonakait, 2003). All the parties involved in the case face the compulsion of indulging in a rigorous investigation in a bid to unearth the truth. Each party uses the information gathered from the thorough investigation as evidence in favor of the case. As highlighted above, the adversary system offers each party the opportunity to indulge in investigation and present evidence, a level of fairness does exist. Many activists of human dignity protection have exhibited their satisfaction with the fact that each party wins or loses after a fair chance to present evidence. In the adversary system, the design of the case proceedings focuses on the existing clash between two parties. The setting reflects this clash, and the procedure adopted for the trial is a demonstration of the clash. The defense teams alternate in the presentation of evidence, relying on witnesses of the case from both sides (Levinson et al, 2013). Both direct questioning and cross-examination cases are integral part of the trial. The judge or the jury has to pay attention to the presentations from both sides, while abstaining from any form of premature judgment that would introduce bias in the case. Both sides have to exhibit efforts towards delivering substantial evidence. In the adversary system, oral evidence is accorded preference while only minimal written submissions are accepted. Of emphasis is the fact that the both parties in the case in a bid to establish the truth. The adversary system has certain embedded rules that serve to protect the kind of evidence presented during the case proceedings (Markovits, 2008). Evidently, some evidence may be of immense harm to either of the parties, and such cannot be accepted in the court. The rules in place serve to ensure that only pertinent evidence is acceptable. Moreover, evidence perceived as having the potential to introduce a form of bias or offer unfair advantage to one party is subject to rejection. The credibility of any evidence presented by either party is usually subject to scrutiny and verification before its use in determining the presented case. In addition, the adversary system requires courts to have rules that govern conduct of all the individuals in the court. Professionalism is critical, and must be exhibited by all defense teams of both sides in their conduct (Jonakait, 2003). It is out of order for any defense team to exhibit behavior or give remarks that undermine anyone. Moreover, the defense teams have to avoid any action that may trigger a form of prejudice in the way the case is handled. These rules are vital as they ensure that court proceedings run in an orderly manner. Without these rules, the court proceedings in an adversary system would compromise justice. Ethical Issues in the Adversary System One of the outstanding aspects of the adversary system is the salient need for the defense teams to accord their clients a high level of loyalty (Jonakait, 2003). Such loyalty is fundamental as the defense teams make efforts of protecting the interests of their clients. It is the duty of the defense team to address the interests of the client, and pursue them in the entire process. Notably, the client has certain rights that the defense should allow the client to enjoy. For example, clients have the right to a level of autonomy. Therefore, defense teams should not breach those boundaries. An additional concern of the adversary system has been whether the system offers access to justice. Since this system is of critical importance in handling criminal cases, it is essential to express concerns on how effective the system is (Jonakait, 2003). Several cases have triggered debates on the level of fairness and neutrality of the jury or the judge, factors that compromise the level of justice. There is evidence of frauds that sway the decision of the jury or the judge, and thus compromising justice. Therefore, this remains to be an ethical challenge of the system. Research reveals that 1-3 % of innocent people tried in the adversary system, face conviction despite their innocence. In Germany and France, statistics indicate that about 95% of all charged people end up convicted (Rhode, 2003). This only serves to highlight that justice is rarely served in the adversary system. The third ethical issue concerns accountability in the entire system. There are concerns that the level of accountability is minimal in some states, compromising justice. Conclusion As highlighted above, the adversary system has a long history and dates back to the medieval era when litigants enjoyed the privilege of having representatives. Over the years, the system has undergone numerous changes to form the modern day two-sided structure. The neutrality and passivity of the judges or the jury that determines cases is critical in this system. Although the adversary system is a phenomenal feature in countries practicing common law, it has certain ethical issues that need addressing. References Levinson, S., In Parker, J., In Woodruff, P., & American Society for Political and Legal Philosophy. (2013). Loyalty. Cambridge, Mass: Harvard University Press. Jonakait, R. N. (2003). The American jury system. New Haven [Conn.: Yale University Press. Leo, R. A. (2008). Police interrogation and American justice. Cambridge, Mass: Harvard University Press. Markovits, D. (2008). A modern legal ethics: Adversary advocacy in a democratic age. Princeton, N.J: Princeton University Press. Rhode, D. L. (2003). Ethics in practice: Lawyers roles, responsibilities, and regulation. Oxford [u.a.: Oxford Univ. Press. Stacy, H., & Lavarch, M. (2003). Beyond the adversarial system. Sydney: Federation Press. Read More