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Encyclopedia > Adversarial system
Criminal procedure
Investigating and charging crimes
Criminal investigation

Arrest warrant · Search warrant
Probable cause · Knock-and-announce
Exigent circumstance
Reasonable suspicion
Search and seizure · Search of persons
Arrest · Detention
Right to silence · Miranda warning (U.S.)
Grand jury Image File history File links Question_book-3. ... Image File history File links Broom_icon. ... Image File history File links Scale_of_justice_2. ... Criminal procedure refers to the legal process for adjudicating claims that someone has violated the criminal law. ... An arrest warrant is a warrant issued by a public officer which authorizes the arrest and detention of an individual. ... A search warrant is a written warrant issued by judge or magistrate which authorizes the police to conduct a search of a person or location for evidence of a criminal offense and seize the evidence. ... In United States criminal law, probable cause refers to the standard by which a police officer may make an arrest, conduct a personal or property search or obtain a warrant. ... A knock and announce warrant, in the American law of criminal procedure, requires that the officer tasked with the responsibility of executing the warrant must knock on the door of the home to be entered for a search or arrest, and to announce their purpose. ... An exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant, or if a they have a knock and announce warrant, without knocking and waiting for refusal under certain circumstances. ... Reasonable suspicion is a legal standard in United States law that a person; has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences. ... Search and seizure is a legal procedure used in many common law whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a persons property and confiscate any relevant evidence to the crime. ... For other uses, see Arrest (disambiguation). ... The right to silence is a legal protection enjoyed by people undergoing police interrogation or trial in certain countries. ... The Miranda warning is a police warning that is given to criminal suspects in police custody or in a custodial situation in the United States before they are asked questions relating to the commission of a crime. ... For other uses of terms redirecting here, see US (disambiguation), USA (disambiguation), and United States (disambiguation) Motto In God We Trust(since 1956) (From Many, One; Latin, traditional) Anthem The Star-Spangled Banner Capital Washington, D.C. Largest city New York City National language English (de facto)1 Demonym American... In the American common law legal system, a grand jury is a type of jury which determines if there is enough evidence for a trial. ...

Criminal prosecution

Statute of limitations · Nolle prosequi
Bill of attainder · Ex post facto law
Criminal jurisdiction · Extradition
Habeas corpus · Bail
Inquisitorial system · Adversarial system Criminal procedure refers to the legal process for adjudicating claims that someone has violated the criminal law. ... A statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated. ... This article or section does not adequately cite its references or sources. ... A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial. ... An ex post facto law (from the Latin for from something done afterward) or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. ... Criminal jurisdiction is a term used in the law of criminal procedure to describe the power of a court to hear a case brought by the state accusing a criminal defendant of a violation of the law of the geographic area in which the court is located. ... Extradition is the official process by which one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal. ... For other uses, see Habeas corpus (disambiguation). ... The word bail as a legal term means: Security, usually a sum of money, exchanged for the release of an arrested person as a guarantee of that persons appearance for trial. ... An inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties. ...

Charges and pleas

Arraignment · Information · Indictment
Plea · Peremptory plea
Nolo contendere (U.S.) · Plea bargain
Presentence Investigation Arraignment is a common law term for the formal reading of a criminal complaint, in the presence of the defendant, to inform him of the charges against him. ... This article does not cite any references or sources. ... In the common law legal system, an indictment (IPA: ) is a formal accusation of having committed a criminal offense. ... In legal terminology, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. ... In the common law legal system, the peremptory pleas (pleas in bar), are pleas that set out special reasons for which a trial cannot go ahead. ... Nolo contendere, in criminal trials, in some common law jurisdictions, is a plea where the defendant neither admits nor disputes a charge, serving as an alternative to a pleading of guilty or not guilty. ... A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant. ... A presentence investigation report (PSI) is a legal term referring to the investigation into the history of person convicted of a crime before sentencing to determine if there are extenuating circumstances which should ameliorate the sentence or a history of criminal behavior to increase the harshness of the sentence. ...

Related areas of law

Criminal defenses
Criminal law · Evidence
Civil procedure The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply. ... The law of evidence governs the use of testimony (e. ... Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a civil action, as opposed to a criminal action). ...

Portals

Law · Criminal justice

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 each advocate representing his or her party's positions and involves a neutral person, usually the judge, trying to determine the truth of the case. The inquisitorial system usually found on the continent of Europe among civil law systems (i.e., those deriving from Roman law or the Napoleonic Code) has a judge (or a group of judges who work together) whose task is to investigate the case. The adversarial system is the two-sided structure under which American 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. This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... A jurist is a professional who studies, develops, applies or otherwise deals with the law. ... This article does not cite any references or sources. ... An inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties. ... For other uses, see Europe (disambiguation). ... For other uses of civil law, see civil law. ... Using the term Roman law in a broader sense, one may say that Roman law is not only the legal system of ancient Rome but the law that was applied throughout most of Europe until the end of the 18th century. ... First page of the 1804 original edition. ...

Contents

History of the adversarial process

Some writers trace the process to the medieval mode of trial by combat[1], 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 adversarial system, and there are many today who believe that it remains the best way of providing for the determination of a disputed issue. 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 coming into use in the United States. 1540s depiction of a 1409 judicial combat in Augsburg (Paulus Hector Mair, Munich cod. ... For jury meaning makeshift, see jury rig. ...


Lawyers are often asked how they can represent someone if they believe that person to be guilty; 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. In England and Wales, if a client states his guilt to his counsel, the counsel is required to cease working on the case (assuming the client is pleading innocence).


Basic features of the adversarial system

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 can 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. For other uses, see Crime (disambiguation). ... In law, cross-examination is the interrogation of a witness called by ones opponent. ... Perjury is the act of lying or making verifiably false statements on a material matter under oath or affirmation in a court of law or in any of various sworn statements in writing. ... The right to silence is a legal protection enjoyed by people undergoing police interrogation or trial in certain countries. ...


By contrast, while defendants in most civil law systems can be compelled to give a statement, this statement is not subject to cross-examination 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. A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ...


Judges in an adversarial system are impartial in ensuring the fair play of due process, or fundamental justice. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision rendering obsolete the judicial process in question — rule of law being illicitly subordinated by rule of man under such discriminating circumstances. In United States law, adopted from English Law, due process (more fully due process of law) is the principle that the government must respect all of a persons legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty... Fundamental justice is a term in Canadian administrative law that signifies those basic procedural rights that are afforded anyone or anybody facing an adjudicative process or procedure that affects fundamental rights. ... The law of evidence governs the use of testimony (e. ... In many actions at law or cases in equity the judge is not required by statute or precedent to make a predetermined decision; but is able to make a decision within a range of decisions. ... The Politics series Politics Portal This box:      The rule of law, in its most basic form, is the principle that no one is above the law. ...


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 which may be the judge or the jury. In a way the rules of evidence can function to give a judge limited inquisitorial powers as the judge may exclude evidence he/she believes is not trustworthy or irrelevant to the legal issue at hand. A trier of fact is the person or group of persons in a trial who make findings of fact as opposed to rulings of law. ...


Peter Murphy in his Practical Guide to Evidence 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.


The name adversary system may be misleading in that it implies it is only within this type of system in which there are opposing prosecution and defense. This is not the case, and both modern adversary and inquisitiorial systems have the powers of the state separated between a prosecutor and the judge and allow the defendant the right to counsel. Indeed, the European Convention on Human Rights and Fundamental Freedoms in Article 6 requires these features in the legal systems of its signatory states. “ECHR” redirects here. ...


The right to counsel in criminal trials was initially not accepted in some adversarial systems. It was believed that the facts should speak for themselves, and that lawyers would just blur the matters. As a consequence, it was only in 1836 that England allowed suspects of felonies to have legal counsel (the Prisoners' Counsel Act). In the United States, however, personally retained counsel have had a right to appear in all federal criminal cases since the adoption of the Constitution (a response to the English practice of barring counsel from felony cases) and in state cases at least since the end of the Civil War, although nearly all provided this right in their state constitutions or laws much earlier. Appointment of counsel for indigent defendants was nearly universal in federal felony cases, though it varied considerably in state cases [1]. It was not until 1963 that the U.S. Supreme Court declared that legal counsel must be provided at the expense of the state for indigent felony defendants, under the federal Sixth Amendment, in state courts. See Gideon v. Wainwright, 372 U.S. 335 (1963). Year 1836 (MDCCCXXXVI) was a leap year starting on Friday (link will display the full calendar) of the Gregorian Calendar (or a leap year starting on Wednesday of the 12-day slower Julian calendar). ... For other uses, see 1963 (disambiguation). ... The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... Holding The Sixth Amendment right to counsel is a fundamental right applied to the states through the Fourteenth, and requires that indigent criminal defendants be provided counsel at trial. ... For other uses, see 1963 (disambiguation). ...


One of the most significant differences between the adversary system and the inquisitional system occurs when a criminal defendant admits to the crime. In an adversary system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution of her or his crime, a false confession will not be accepted even in common law courts. By contrast, in an inquisitional system, the fact that the defendant has confessed is merely one more fact that is entered into evidence, and a confession by the defendant does not remove the requirement that the prosecution present a full case. This allows for plea bargaining in adversary systems in a way that is difficult or impossible in inquisitional system, and many felony cases in the United States are handled without trial through such plea bargains. Generally, to allocute means to speak out formally. ... A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant. ...


Another difference is in the rules of evidence. Because the adversarial system assumes that the evidence is to be presented to laymen rather than to jurists, the rules of evidence are considerably more strict. Rules on hearsay are much stricter in most adversarial systems than in inquisitorial systems; though often lower tribunals are allowed some flexibility in applying the strict rules of common law evidence such as in domestic relations courts or in small claims proceedings where the parties are often unrepresented by lawyers and the judge functions as more of an inquisitor to protect the interests of children than a neutral arbiter of justice. Hearsay may refer to: Hearsay in English Law and Hearsay in United States law, a legal principle concerning the admission of evidence through repetition of out-of-court statements HearSay, a British pop group Category: ...


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 England the Criminal Justice and Public Order Act 1994 allowed such inferences to be made for the first time in England and Wales (It was already possible in Scotland under the rule of criminative circumstances). 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. In the United States, the Fifth Amendment has been interpreted to prohibit a jury from drawing a negative inference based on the defendant's invocation of his right not to testify, and the jury must be so instructed if the defendant requests. In law, cross-examination is the interrogation of a witness called by ones opponent. ... Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. ...


Comparisons with the inquisitorial approach

In many jurisdictions the approaches of each system are often formal differences in the way cases are reviewed. It is questionable that the results would be different if cases were conducted under the differing approaches; in fact no statistics exist that can show that these systems do not come to the same result. However, these approaches are often a matter of national pride and there are opinions amongst jurists about the merits of the differing approaches and their drawbacks as well.


Proponents of the adversarial system often argue that the system is more fair and less prone to abuse than the inquisitional approach, because it allows less room for the state to be biased against the defendant. It also allows most private litigants to settle their disputes in an amicable manner through discovery and pre-trial settlements in which non-contested facts are agreed upon and not dealt with during the trial process.


In addition, adversarial procedure defenders argue that the inquisitorial court systems are overly institutionalized and removed from the average citizen. The common law trial lawyer has ample opportunity to uncover the truth in a laboratory called the courtroom. Most cases that go to trial are carefully prepared through a discovery process that aids in the review of evidence and testimony before it is presented to judge or jury. The lawyers involved have a very good idea of the scope of agreement and disagreement of the issues to present at trial which develops much in the same way as the role of investigative judges. It has also been argued that a trial by a jury of one's peers may be more impartial than any government paid inquisitor and a panel of his peers. In the United States the right to a trial by a jury of one's peers who are common citizens is guaranteed by the United States Constitution.


Proponents of inquisitorial justice dispute these points. They point out that most cases in adversarial systems are actually resolved by plea bargain and settlement. Most legal cases in these systems do not go to trial; this can lead to great injustice when the defendant has an unskilled or overworked attorney, which is likely to be the case when the defendant is poor. In addition, proponents of inquisitorial systems argue that the plea bargain system causes the participants within the system to act in perverse ways, in that it encourages prosecutors to bring charges far in excess of what is warranted and defendants to plead guilty even when they believe that they are not. Furthermore, proponents of inquisitorial systems also argue that the power of the judge is limited by the use of lay assessors and that a panel of judges may not necessarily be more biased than a jury. A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant. ... In law there are two main meanings of the word settlement. ...


==]].[2]


The adversarial system has also been attacked for failing to accurately resolve complex science and technology issues. Such issues which require a great depth of knowledge to understand, may baffle judges and jurors that preside over cases. This would lead to unjust outcomes for one or both of the litigating parties due to the lack of understanding of the evidence presented.


Disadvantages of using a Jury on criminal matters include: 1. Expensive to operate and extends the time taken to hear cases 2. Jury service imposes an unfair economic and mental burden on those chosen to serve 3. Competence of non-professions is questionable as they are considered ‘amateurs’ in the face of the law 4. Jurors can be unduly influenced by media coverage of their case 5. Easily persuaded by good counsel 6. Do not give reasons for their decisions (process is secret – no debate) 7. Jurors have difficulty in assessing damages and analysing complex evidence


This is not an exhaustive list.


Criticism of the Adversarial System in Family Law

Members of the fathers' rights movement criticize the win or lose adversarial system currently used in most Western countries to determine divorce and child custody issues, and define "winning custody" not as the right to parent one's children, but as the power to prevent someone else from parenting his children with the help of the government.[3] The Fathers rights movement or Parents rights movement is part of the mens movement and/or the parents movement that emerged in the 1970s as a loose social movement providing a network of interest groups, primarily in western countries. ...


References

  1. ^ Kirsten DeBarba 2002. Maintaining the adversarial system: The practice of allowing jurors to question witnesses during trial. Vanderbilt Law Review 55, no. 5 (October 1): 1521-1548. http://www.proquest.com/ (accessed August 15, 2007).
  2. ^ Anne Strick, Injustice for All (New York: G.P. Putnam's Sons, 1977): 21.
  3. ^ Baskerville, Stephen (2007). Taken Into Custody - The War Against Fathers, Marriage and the Family. Cumberland House. 
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  Results from FactBites:
 
Adversarial system - Wikipedia, the free encyclopedia (2004 words)
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.
In an adversary system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution of her or his crime, a false confession will not be accepted even in common law courts.
Certainly the use of the jury in the common law system seems to have fostered the adversarial system, and there are many today who believe that it remains the best way of providing for the determination of a disputed issue.
  More results at FactBites »

 
 

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