The rules of the adversary system of trial ensure that justice is met. The system appears to satisfy instinctive notions of justice and fairness.
THE PARTICIPATION
The prosecution must have evidence and initiate the case by the issue of a writ or summons. Criminal court cases are initiated by the prosecution and civil cases are initiated by a plaintiff, and in both circumstances, the accused is the defendant. The two opposing parties are responsible for the presentation and preparation of their cases and often engage legal representatives to do this. This is so that people are equal in court and their lack of knowledge on the subject does not inhibit justice. This represents the nature of our society, and protects the rights of the individual. In criminal cases, which involve an offence against the state, the state is represented by the director of public prosecutions. A court case often appears as a contest between two lawyers.
The system presumes that both parties are in an equal position to represent themselves financially. However a richer party will have more resources to have a more qualified, successful lawyer to defend themselves. Some parties may be deterred from exercising their rights due to the costs associated with preparing a case.
Each party decides which arguments they intend to rely on and selects the evidence that supports their arguments. In the criminal trial of an indictable offence, the defendant is under no obligation to disclose evidence to the court, however the prosecution must submit a bulk of their evidence at the time of committal. The adversary system assumes that all relevant facts and issues will be presented to the court and this system prevents time being wasted, allowing the court to reach a verdict quickly. However the parties acting out of self-interest will only submit evidence that is helpful to their case, consequently not all evidence may be introduced and the truth may not be disclosed.
BURDEN AND STANDARD OF PROOF
In Criminal and Civil cases, the burden of proof lies with the prosecution and plaintiff to prove that the defendant is guilty. The defendant does not have to prove their innocence, as they are innocent until proven guilty. If the prosecution evidence is insufficient to prove the guilt of the defendant, the defendant will be acquitted. In criminal cases, the defendant must be proven guilty beyond reasonable doubt. In civil cases, the plaintiff must present sufficient evidence to prove on the balance of probabilities that the facts they claim are substantially the truth. The adversary trial has been criticised for being more concerned with the proof than the truth.
THE ADJUDICATOR
The judge or magistrate acts like the umpire, being responsible for ensuring that both parties to a dispute obey the rules of procedure and evidence. The judge must ensure that the party who bares the burden of proof has legally satisfied this responsibility. The judge must act impartially and treat each party equally, remaining neutral and never interfering unnecessarily with the conduct of the case. The judge can only intervene when there may have been any point that has been overlooked or obscured to ensure that the jury is not manipulated or confused intentionally. The judge cannot assist an unrepresented party. The judge is an impartial umpire, responsible for empanelling a jury, deciding the admissibility of evidence, applying the rules of procedure, deciding questions of law, deciding the verdict, (when there is no jury) and deciding the sanction or remedy. As the decision is being made by an independent body, it is more likely to be accepted by the parties as a fair verdict. Especially in criminal cases that are prosecuted by the state, the independence of the judge prevents unfair prosecution.
EVIDENCE AND PROCEDURE
There are strict rules of procedure and evidence. These ensure that each party has an equal opportunity to present their case in a uniform and coherent matter. The rules of procedure provide a framework for the presentation of a case. With the jury not present, the parties may ask for ruling from the judge on matters of procedure or evidence.
Witnesses are required to give their evidence under oath or affirmation and are subject to three stages of questioning. The first is an examination-in-chief, the second is cross-examination and the third is an opportunity to re-examine. The evidence given by the witness is also subject to the three stages of examination. This is fair to both parties, as it enables evidence to be tested for truth, however, witnesses can only answer what they have been asked and are not allowed to tell their whole story and this may confuse or intimidate witnesses.
The rules of evidence protect juries from unreliable forms of evidence, ensure that evidence is relevant and admissible. This provides the hearing to be conducted in a consistent manner. Evidence is the data or information cited as proof in court, this includes the sworn testimony of witnesses and exhibits such as documents or items of physical property. All evidence must be relevant to the facts of the issue, legally obtained and reliable (given in court to be examined). Evidence of prior convictions in criminal cases cannot be heard in court until after a verdict has been reached.
THE FINAL DECISION
Ultimately, it is up to the magistrate and jury to determine justice.
After all evidence has been presented to the court in this manner, the parties make their closing statements and the court makes a final decision as to the defendant’s liability
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