How efficient is the adversary system in revealing the truth?
The adversary system of trial is used in most common law countries inherited by English settlement. It is regarded as a system to protect the people. However, it has often been criticized for being a system of proof rather than truth. Nonetheless, the advantages of using this system can be clearly seen through one of its main features. One of the areas that the adversary system of trial focuses on is the fact that individuals or parties involved in a court hearing are responsible for the preparation and presentation of their case. This provides for a number of advantages. Firstly, a greater involvement of the individual in their case allows for parties to try and get the best possible chance of success. Parties are able to access all the recourses around them providing they meet the costs, and are better to able to collect evidence, construct arguments and support their case and choose what evidence to use. This is believed to a quicker dispute resolution and it makes it easier for a final decision to be reached due to the fact that each party has clearly defined their position in the case, and what they are arguing for. By theory, this is allows for a system that is more easily able to find the truth. This also saves time for the courts and then individuals and hence allows for an efficient legal system.
However, while giving parties the best possible chance of success through revealing the truth may seem as advantageous, it may also be very inefficient and ineffective. Preparing and presenting a case is a difficult process and may be beyond the scope of the ordinary citizen. Identifying which evidence to be used is alone a very time consuming process and strenuous. Also, court costs and fees increase due to the lack of understanding by the majority of society in regards to rules of evidence and procedure and this adversely decreases the likely hood of determining the truth. To overcome this problem, most people use the aid of legal representation. Again this is ineffective for parties with limited recourses available. Limiting individuals to using “some” evidence disregards the main purpose of all trials, which is to reveal the truth, but rather confines individuals to what is there to use. All parties should be given the information required and the recourses needed in order to fulfill the role that the adjudicator seeks, i.e. to unravel the truth.
Adding weight to the inefficiency of the adversary system in revealing the truth is the element of the impartial judge. Adjudicators or judges are mutual in all court hearings irrespective of the nature of the case at hand and are not biased. They listen to the facts presented and attempt to determine who has the better case. Judges are free from any derogatory thoughts, biased thoughts and any other misleading information in order to preserve the justice of the legal system within the court arena. They(judges) are also independent and are not subject to any political or public pressure and all decision, in theory, are made according to the merits of the arguments presented in the case. On the other hand, it can be said the judges in the adversary system of trial attempt to find truth rather than proof. Being an impartial judge, it prohibits the judge from interfering with the arguments that are presented by the opposing parties and the adversary system only allows the judge to correct any misconceptions, issues and arguments presented in the case. One of the key features of the adversary system is that the judge cannot ask questions for the purpose of finding the truth or make certain judgments. Decisions are made according to what is presented by the parties. As stated by the HC judge in R v Whitehorn (1983), “legal disputes in court are basically disputations between two parties. The judge is there to just keep a balance between the parties and generally looks for proof rather than truth.” This shows the inefficiency of the adversary system in revealing the truth. Another point that can be mentioned is that the potential of the judge in a trial does not get fully utilized. Judges are some of the most knowledgeable and well-informed individuals in the area of law and they should be used effectively in court hearings to ensure that the case is heading in a direction where the truth can be revealed, examined and determined. They should be a body that not only analyzes the evidence, but rather become actively involved in the disputations between the parties.
that's it for now. I have like 8 other paragraphs regarding the effectivenesses of an impartial judge, rules of evidence and procedure and standard and burden of proof and their effects on the effectiveness of the legal system in determining the truth.
can someone, please check this out, tell me if it's any good, any improvements. Oh yes and this isn't a question in which it took me ages, just wasted 20 mins on it.
thanx
please check it.
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