An adversarial legal system brings cases to the court with two opposing sides presenting themselves before a neutral panel that can include a jury and a judge. Once both parties have argued their cases, the panel will then determine the facts and the appropriate actions to be taken. Common law countries commonly use this justice system, as its beginnings are quite ancient. While this approach to holding actions and defenses is supported by many as venerable, it is also refrained by others because they see it as having some potential drawbacks. To fully understand the adversarial system, it is best to look at its advantages and disadvantages.
List of Advantages of Adversarial System
1. It is seen as fair and less prone to abuse.
Those who support this system often argue that it is fairer and less prone to abuse than other legal systems, as it does not allow any room for the state to favor against the defendant. Instead, it allows private litigants to settle disputes in amicable means through pre-trial and discovery settlements, where non-contested facts will be agreed upon to try not to deal with them in the litigation process.
2. It properly observes the rights of the defending and prosecuting parties.
In this judicial system, an accused individual is given the right to remain silent, get a lawyer to help him state the case and remain innocent until proven guilty, which is a crucial aspect in the outcome of the case. As for the prosecution, they are also allowed to present facts as they interpret and understand them. Another thing is that the government is advised on all criminal matters.
3. It allows both sides to support their positions.
The adversarial system allows both parties to present witnesses and evidence to support their positions, where they can cross examine witnesses, independently analyze evidence and challenge arguments. The objective here is to present all the facts for the benefit of the jury and the judge in deciding what really happened and who should be held responsible.
4. It provides power to the police.
In this approach, the police play an essential role in the path to justice, where they are the ones who will run the investigation while adhering to certain conditions, such as presenting a warrant. They cannot detain an accused individual without proper arrest.
5. It does not promote bias.
The jury and the judge are expected to remain impartial—after all they are chosen using criteria that are designed to get rid of people who might be biased in a certain case. Basically, this system presents the contest to individuals who do not have interest in the outcome and can evaluate the facts objectively. However, this system can become complicated, where lawyers on both sides can use rhetorical, but legal, strategies to influence opinion that can affect the outcome of the trial.
6. It hears the stories from both sides.
Generally, this system does not allow the Judge to comment until both sides are heard, making him less biased and lessening the possibility of public protest to the verdict.
List of Disadvantages of Adversarial System
1. It obliges each side to contest with each other.
The adversarial litigation approach is sometimes criticized for setting up a system where sides on a case are required to contest with each other. This is believed by critics to encourage deception and other questionable legal tactics, as the objective is to win at all costs, instead of evaluating the facts to learn the truth.
2. It might lead to injustice.
Critics point out that a lot of cases in an adversarial system, especially in the US, are actually resolved by settlement or plea bargain, which means that they do not go to trial, leading to injustice especially when the accused is helped with an overworked or unskilled lawyer. Also, they argue that this type of system causes the participants to act in perverse ways, encouraging defendants to plead guilty even when they think otherwise and prosecutors to bring charges far beyond what is warranted.
3. It might result in judgments compelled by arguments, instead of evidence.
In this system, the discovery with evidence rests upon the lawyers who work for each side, with the better one having better chances to win the case. But is the jury is involved, the final decision might be swayed by the most compelling arguments, instead of solid proof.
4. It has issues with accessibility.
One criticism of an adversarial system that is very difficult to refute has something to do with accessibility. It cannot be plausibly argued that average defendants can enjoy the same access to legal representation as the wealthy and influential defendants, which is the same with the part of the plaintiffs. However, supporters explain that such unequal access resulted from social and economic conditions, not the structure of the judicial system, adding that altering the way of delivering legal services would do nothing in addressing the root causes of such a disparity.
5. It uses a tedious process.
It is also said that the adversarial form of legal system is slow and cumbersome, where the judge—who acts as a neutral fact finder—could only do little to hasten the trial process, not to mention that the evidentiary and procedural rules can slow down the process further. In addition, the wide availability of appellate reviews would mean that a final decision can be made for years, though at least one research has shown that some courts discouraged holding adversarial trials and making active settlements. However, litigants in this approach are still encountering substantial delays in reaching a resolution. And while this disadvantage is true, supporters still argue that the slow methodical system is needed to protect individual rights.
The term “adversarial system” might be misleading for some in a way that it entails that it is only within this system where there opposing prosecution and defense are allowed. By getting an in-depth knowledge about it and the other legal systems, we will know that it is not the case. Based on the advantages and disadvantages of adversarial system listed above, what would be your opinion about it?
Natalie Regoli, Esq. is the author of this post and the editor-in-chief of our blog. She received her B.A. in Economics from the University of Washington and her Masters in Law from The University of Texas School of Law. In addition to being a seasoned writer, Natalie has almost two decades of experience as a lawyer and banker. She is a child of God, devoted wife, and mother of two boys. If you would like to reach out to contact Natalie, then go here to send her a message.