The Adversary System - LegalStudiesYr12LSC - home

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The Adversary System - LegalStudiesYr12LSC - home Powered By Docstoc
					Chapter 9
... is based on two parties battling to win the
   case, each acting as the adversary of the

ROLE: to provide a procedure for the parties to
 present and resolve their case, in as fair a
 manner as possible.
                                        5. The Need
                                        for Rules of
 1. The Role of                        Evidence and
  the Parties                            Procedure
(party control)

                   The Adversary
                                                 4. The need for
  2. The Role of                                      Legal
    the Judge                                    Representation
      arbiter)             3. The Burden
                            of Proof and
                            Standard of
    Each party controls their own case and has
     control over the decisions about how the case
     will run as long as the rules of evidence and
     procedure are followed.
1. Instigating proceedings
2. Investigating the facts
3. Deciding which facts should be brought before
   the court
4. Investigating the law
5. Deciding whether to have a jury in a civil case
6. Choosing whether to have legal representation
   Party control allows the parties to feel that
    they are in control of the situation and
    responsible for the outcome.
   It satisfies the competitive or combative spirit
   When given the opportunity to fight to win
    people generally more satisfied with the
   Judge or magistrates is (an Impartial umpire)
   (Keeps contest fair) The role is to ensure the
    courts processes and procedures are carried out
    according to strict rules of evidence and
    procedure and each party is treated fairly.
   Judge generally not allowed to interfere or
    favour any side – rather can ask questions, recall
    witnesses etc with permission of both parties.
   (ensure onus of proof is discharged) decides the
    admissibility of evidence and decides the
    questions of law
   If the judge or magistrates favours one side
    then the contest would not be fair.
   The decision maker (if no jury) must be
    independent – no previous knowledge of the
    accused or parties in civil case.
   Should not have any opportunity to form any
    preconceived ideas before the trial/hearing
    and must set aside personal biases.
 Burden of proof – lies with the person who is
  bringing the case.
E.g. Criminal case prosecution and Civil case
The person who brings the case has to prove
  their view of the facts is correct
 Standard of proof - the strength of the
  evidence needed to prove the case
E.g. Criminal cases – Beyond Reasonable
  Doubt a in civil cases Balance of Probability
   The burden of proof indicates who must
    begin the battle.
   The standard of proof indicates the strength
    of proof required to decide who is successfull
   Role of preparing and conducting a case
    usually undertaken by legal representatives
    on behalf of the parties
   Legal representatives are experts who are
    familiar with rules of evidence and procedure
   Experts ensure parties are able to present
    their best possible case and assist in
    achieving a just outcome.
   The truth should emerge from each party representing
    their own case to the best of their ability and the other
    side showing the flaws in the evidence presented
   Presenting a case without legal rep may therefore result in
    an unjust outcome because parties might not know how
    to bring out the evidence. (linked to rules of evidence and
   To work effectively – should have equal representation. If
    one party is better represented this could lead to an unfair
    advantage and possibly an incorrect result.
 Each hearing or trial governed by rules of
  evidence which aim to ensure fair and equal
Evidence – oral or written form (sworn
  statements –affidavits), objects, (e.g. Murder
  weapon, stolen goods, photos diagram or
  tape recordings), a set of circumstances or
  facts indicated (circumstantial evidence –
  where inferences can be drawn from facts)
 The parties are treated fairly
 The jury is not distracted by irrelevant material
 Unreliable or illegally obtained evidence is not
  heard by the court
 Evidence is not unduly prejudicial to the
  defendant (eg bad character not given)
 In criminal case only evidence about the case –
  not prior convictions (except where propensity
  evidence given)
   Provide a framework in which the court cases
    can take place and resolution achieved
   Establishes steps for bringing out the
    evidence e.g. Oral evidence, and cross
    examination (the truth should emerge)
   Procedure aims to treat both sides equally
    and fairly and creating an atmosphere of
    respect so that parties will follow the decision
    of the court
Summarise 456 to 463
Question 1 to 16 page 463
Read Pages 465 to 469
Questions 17 to 22 page 470
Complete the Advantages and Disadvantages
In your Group you are to take one element of the
  adversary system and write a detailed response
  that illustrates how the element is both an
  advantage and disadvantage. Present this to the
  class – each member must contribute!!!
Read and summarise pages 471 to 480

Complete only Q23 page 477

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