Assignment: Adversarial Legal System
Assignment: Adversarial Legal System
Assignment: Adversarial Legal System
Tasks:
In a minimum of 200 words, respond to the following:
* In what ways is the US legal system adversarial?
* What professional and personal attributes would be helpful for forensic psychology professionals in an adversarial legal system?
Support your responses with examples.
An accused may not be questioned by a prosecutor or judge unless they choose to do so in a criminal adversarial proceeding since they are not compelled to produce evidence. If they opt to testify, they will be subjected to cross-examination and could be charged with perjury. Because maintaining an accused person’s right to silence prevents any examination or cross-examination of that person’s position, the decision of counsel as to what evidence will be called is a crucial tactic in any case in the adversarial system, and thus it could be called a lawyer’s truth manipulation. It is undeniably necessary for the skills of both parties’ counsel to be somewhat evenly matched and submitted to an unbiased court.
While defendants can be compelled to provide a statement in most civil law systems, this statement is not susceptible to cross-examination by the prosecutor and is not given under oath. This permits the defendant to present their case without being subjected to cross-examination by a knowledgeable opponent. This is mostly due to the fact that the defendant is interrogated by the judges rather than the prosecutor. The adversarial framework of the common law is fully responsible for the concept of “cross”-examination.
Assignment: Adversarial Legal System
In an adversarial system, judges are neutral in ensuring that due process, or fundamental justice, is followed. When there is a dispute, such judges decide what evidence is to be allowed, frequently when called upon by counsel rather than on their own initiative; although, in some common law jurisdictions, judges have a larger role in deciding what evidence to accept into the record or reject. In the worst-case scenario, abusing judicial discretion would lead to a biased ruling, rendering the judicial process in issue obsolete—the rule of law being illegally subjected to the rule of man in such discriminatory conditions.
The rules of evidence are also based on the system of adversary objections and how they may seek to prejudice the trier of fact, which might be a judge or a jury. In some ways, the rules of evidence can operate to limit a judge’s inquisitorial powers by allowing the judge to omit evidence that he or she judges is unreliable or irrelevant to the legal problem at hand.
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In his Practical Guide to Evidence, Peter Murphy provides an illuminating incident. After hearing different statements from witnesses, a dissatisfied judge in an English (adversarial) court finally questioned a barrister, “Am I never going to hear the truth?” ‘No, my lord, only the evidence,’ counsel said.
The term “adversarial system” may be deceptive because it indicates that there are only opposing prosecution and defense in this type of system. This is not the case, as both current adversarial and inquisitorial systems have the state’s powers divided between a prosecutor and a judge, as well as the right to counsel for the defendant. Indeed, Article 6 of the European Convention on Human Rights and Fundamental Freedoms mandates these qualities in signatory governments’ legal systems.
In some adversarial systems, the right to counsel in criminal proceedings was initially rejected. It was thought that the facts should speak for themselves, and that attorneys would only serve to muddy the issues. As a result, England did not provide felons the official right to legal counsel until 1836 (the Prisoners’ Counsel Act 1836), despite the fact that English courts had habitually allowed defendants to be represented by counsel since the mid-18th century. Advocates like Sir William Garrow and Thomas Erskine, 1st Baron Erskine helped usher in the adversarial court system that is still employed in most common law countries today throughout the second part of the 18th century. In the United States, however, personally retained counsel have had the right to appear in all federal criminal cases since the adoption of the Constitution, and in state cases since at least the end of the Civil War, though nearly all states provided this right much earlier in their state constitutions or laws. In federal felony prosecutions, appointment of counsel for indigent defendants was practically universal, though it varied greatly in state cases. [4] The United States Supreme Court did not rule until 1963 that destitute felony defendants in state courts must be given with legal representation at the state’s expense under the federal Sixth Amendment. 372 U.S. 335; Gideon v. Wainwright, 372 U.S. 335; Gideon v. Wainwright, 372 U.S. 3 (1963).
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When a criminal defendant admits to a crime, one of the most fundamental contrasts between the adversarial and inquisitorial systems arises. There is no more controversy in an adversarial system, and the case moves on to punishment; nevertheless, in many countries, the defendant must have allocution of her or his crime, and an obviously fake confession will not be accepted even in common law courts. In an inquisitorial system, on the other hand, the fact that the defendant confessed is simply another fact submitted into evidence, and a confession by the defendant does not relieve the prosecution of the burden of proof. This enables plea bargaining in adversarial systems in a way that is difficult or impossible in inquisitional systems, and many criminal cases in the United States are resolved without a trial as a result of such plea agreements.
In some adversarial legal systems, the court is allowed to draw conclusions based on an accused’s refusal to undergo cross-examination or answer a specific question. The defense’s ability to use quiet as a tactic is obviously limited as a result. The Fifth Amendment has been construed in the United States to bar a jury from drawing a negative inference based on a defendant’s use of his right not to testify, and the jury must be so instructed if the defendant wants it.
Lord Devlin is a character in the novel Lord Devlin. “It can also be argued that two prejudiced searchers beginning at opposing ends of the field will be less likely to miss anything than the impartial searcher beginning in the centre,” the Judge remarked. [5]
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