Adversarial system

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The adversarial system (or adversary system) of law is the system of law that relies on the contest between each advocate representing his or her party's positions and involves an impartial person or group of people, usually a jury or judge, trying to determine the truth of the case.[1][2][3] As opposed to that, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case.

The adversarial system is generally adopted in common law countries. An exception, for instance in the U.S., may be made for minor violations, such as traffic offences. On the continent of Europe among some civil law systems (i.e. those deriving from Roman law or the Napoleonic Code) the inquisitorial system may be used for some types of cases.

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

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 the jury 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 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.

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