Adversary system

The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates representing their party's positions and not on some neutral party, usually the judge, trying to ascertain the truth of the case. The inquisitorial system that is usually found on the continent of Europe among civil law systems (ie. those deriving from the Roman or Napoleonic codes) has a judge whose task is to investigate the case before him or a group of judges who work together. Judges in an adversarial system tend to be more interested in ensuring the fair play of due process, or fundamental justice and they decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute. 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[?].

Peter Murphy in his excellent Practical Guide to Evidence (Blackstone Press, various editions) 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.

Some writers trace the adversarial process to the medieval mode of trial by combat, in which some litigants, notably women, were allowed a champion to represent them. Certainly the use of the jury in the common law system seems to have fostered the advesarial system and there are many today who believe that it remains the best way of providing for the determination of a disputed issue. Nonetheless, the European Convention on Human Rights and Fundamental Freedoms implies in Article 6 an adversarial process, although it is not extensively used on the continent of Europe. On the other hand, the new British Civil Justice reforms initiated by Lord Woolf (the Civil Procedure Rules or CPR) are prefaced with a case management system controlled by the judge rather than by the lawyers representing the different parties, similar case management systems are in use in the United States. The adversarial system also disposes of the canard whereby lawyers are often asked how they can represent someone if they believe that person to be guilty (or innocent for that matter, although this might be a more difficult position): counsel must not deceive the court but his client is entitled to have the best presentation of the case laid before the tribunal and to have the evidence fully tested.

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. 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.

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 defence. In Britain, the Criminal Justice and Public Order Act 1994 allowed such inferences to be made for the first time. 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.

Some proponents of civil law argue that the right to silence as practiced by courts in a adversary system is actually much more unfair to the defendant than the system in civil law countries. In common law systems the defendant has a right to silence, but if he waives that right to silence he is subject to cross-examination by a professional advocate whose goal it is to present the defendant's statements in the worst possible light. In most civil law jurisdictions, the defendant may be compelled to make a statement, but this statement is not conducted under oath and the defendant is not subject to cross-examination. This allows the defendant to explain their actions without having to duel with a professional advocate..