In the modern world, competition is the bond that holds society together. Every person can relate to it whether that competition is within a sport, video game, or a court hearing. The Canadian legal structure operates on the adversarial system. Neil Brooks defines an adversarial system as one in “which the parties and not the judge have the primary responsibility for defining the issues in dispute and for carrying the dispute forward through the system” (Brooks, The judge and the Adversary system. p. 341-353). Within the adversarial system the judge has less of a role.
He’s passive due to his lack of participation in the fact-finding. Its opposing system is the inquisitorial system. Within the inquisitorial system the judge may participate in the fact finding. It [inquisitorial] is more of a community based system than adversarial. It [inquisitorial] focuses more on the harmony of the victim/offender rather than ending the dispute. The law is known for settling disputes. Two articles were written (one by Neil Brooks, the other by Jerome Frank) discussing both systems (inquisitorial and adversarial).
Within Frank’s paper “Fight” Theory vs “Truth” Theory, he criticises the adversarial system and poses solutions to the problems. Within Brooks’ paper The Judge and the Adversary System he talks about the judge’s role within the adversarial system. He states and outlines the benefits of the adversarial model and all the assumptions made within the system. There is another type of alternate dispute resolution within the Canadian system called ADR (alternative dispute resolution). All of these dispute resolutions end the conflict, but only a few create justice.
This paper will outline how the adversarial model should remain the dominant system in Canada while incorporating a few inquisitorial aspects. The completion of the trial should become the sole goal within the court, despite the possibility of it overlapping with the truth. The adversarial system is widely used within the Canadian legal system. There are 5 key features within the adversarial system: marshalling the evidence at trial, relative faith in the integrity of pre-trial process, the extent of discretion, the nature of the trial process, and the importance of the victim (NZ Law Commission 54-55).
Firstly, before the trial, the responsibility to gather the evidence rests on the two parties (NZ Law Commission 54-55). They receive no help from the judge, so they are the masters of their own fate. Secondly, the model operates on the assumption that some evidence gathered by the parties is wrong (NZ Law Commission 54-55). There is no official of expertise to aid the parties in gathering information; therefore the trial permits a cross-examination. Cross examination eliminates all the evidence that is either not applicable or incorrect, by letting the opposing party test the evidence to determine its validity.
Thirdly, there is a greater chance for a criminal to escape the charge laid before him. The decision making is left to the parties; therefore it’s difficult to have enough evidence to sentence the offender. An option is given to the offender to plead guilty and avoid the trial entirely (NZ Law Commission 54-55). Fourthly, during the trial process the judge acts as a mediator who oversees the trial. He ensures that rules within the court system are held in place as the parties begin their cross-examinations (NZ Law Commission 54-55).
Fifthly, the role of the victim is undermined. The victim has no special quality; he may be called upon as a witness, but they have no recognized statues (NZ Law Commission 54-55). These 5 key features are what identify the adversarial model. Brooks states his two theories within the adversarial system are, party-autonomy, and party-prosecution. The party-autonomy is the judge’s participation within the case. Within the adversarial system the judge has a limited role. He acts as the neutral party who listens to the cases presented.
Although the judge doesn’t have the ability to initiate proceedings, he does have the ability to stop the parties from initiating certain proceedings (Brooks, The judge and the Adversary system. p. 341-353). The second aspect of party-autonomy is that the parties have the responsibility for defining their dispute (Brooks, The judge and the Adversary system. p. 341-353). The judge will not insist an anterior dispute that might further the case. For instance, if the offender is charged with recklessness, but he should be charged for manslaughter then the judge will not insist the victim change the dispute.
Party-autonomy reflects the laissez-faire philosophy, in a sense which it is free from government control. The second branch is party-prosecution. Within this premise the parties are able to choose the manner they wish to present their case (Brooks, The judge and the Adversary system. p. 341-353). There are two big assumptions associated with party-prosecution. Firstly, the legitimacy with adjudication is enhanced if it’s used within the adversarial system, and secondly, the more accurate fact-finding would take place since the parties would be operating on motivation (Brooks, The judge and the Adversary system.
p. 341-353). Both principles are legitimate because it’s in line with the liberal idea that every individual should be left alone to operate on his own accord (Brooks, The judge and the Adversary system. p. 341-353). The inquisitorial system differs from adversarial in 5 different ways. The inquisitorial system values the community as a whole unite. A few aspects within the inquisitorial system have been adapted to the pre-existing adversarial system. There are 5 key features that distinguish inquisitorial system.
Firstly, during a major case (criminal law), the prosecution is overseen by an independent prosecutor. This prosecutor has the ability to call upon evidence he deems as being fit, interviewing witnesses, and is able to take the case to trial, if he deems appropriately based off the evidence (NZ Law Commission 54-55). Secondly, discretion is more limited. The offender is not allowed to plead guilty despite the amount of evidence against him; all trials are taken to court (NZ Law Commission 54-55). Thirdly, the court is able to create a dossier with all information relevant to the trial.
The judge is able to distinguish between reliable and non-reliable evidence, he can detect the flaws within the parties arguments, and he is able to put forth evidence which is favourable toward the victim (NZ Law Commission 54-55). Fourthly, cross examination within the trial is non-existent, but both parties are allowed to ask questions. The judge controls the court, he has the ability to call upon a witness, determine what evidence is valid within the trial, etc. The courts obtain and know all information that is associated with the offender and the trial.
For instance the judge is allowed to view the offender’s previous history (NZ Law Commission 54-55). Fifthly, the victim’s status is heightened. He is seen more as a victim, and within the pretrial process he is able to participate in interviews. Within the trial process he is seen more independently and is allowed to ask questions towards the witnesses (NZ Law Commission 54-55). The ending goal to both adversarial and inquisitorial are different, one wish to end the dispute, the other to seek the truth.
Within Brooks’ article, he favours the adversarial system, because it helps with the adjudication process, whereas Frank states how society should move away from adversarial. Frank poses two solutions to the adversarial system. Firstly, the creation of official evidence gatherers and the ability for parties to ignore evidence. Secondly, the idea of a public prosecutor to oversee the trial. Both systems have their advantages and disadvantages, but the adversarial system remains the better system because it has less weaknesses. Within the adversarial system, the trial is based on the process.
This means that the trial itself is the important factor, whereas the inquisitorial system is based off the end goal. The advantage towards inquisitorial is that the judge participates with the fact-finding. This is beneficial towards the people, because that process is cheaper. Since the trial is cheaper it becomes fairer. Frank’s states his opinion on the adversarial system “Without the evidence which such an investigation would reveal, a man is often bound to be defeated. His winning or losing may therefore depend on his pocket book” (Brooks, The judge and the Adversary system.
p. 341-353). He proposes the idea of society “selling justice”. Frank is referring to the wining of cases being dependent on someone’s financial capability. Frank is correct about his idea on the selling of justice. The law is created in a language that only certain people [lawyers] can understand, so the citizen will have to pay lawyers to interpret the law. The more talented lawyers often cost the most money, therefore only the upper-class can afford them. This leaves the lower class with secondary lawyers, who may potentially be not as affective in court.
It would be easier and equally fair, if the judge assisted with the fact-finding since he is the professional. However, the adversarial system is un-effected by bias, resulting in a better system. The judge may develop a bias within the inquisitorial case. There are five types of biases the judge may experience. If a party member is being rude, hostile, etc towards the judge he may favour the opponent. If the Judge reveals important evidence within the trial, heavier weight might be placed on that particular piece resulting in a bias.
If the judge is overly concentrated on a particular evidence piece, the balance of other facts may escape his view. The judge may develop a bias if evidence is presented to him pre-trial. Lastly the adversarial system is unbiased because it avoids the psychologists call decision-maker bias. The decision making bias is when the decision maker investigates the facts, in which he applies his decision (Brooks, The judge and the Adversary system. p. 341-353). If he [the judge] has accessibility to all facts before the trial there’s a possibility he could favour one member over the other.
The adversarial system permits the judge to remain un-biased. The fact-finding would be greater than that collected by any judge. Both parties would be equally motivated in winning their cases thus; they’d strive to collect better facts. Brooks identifies 5 reasons why the parties are motivated. Firstly, the parties are initially motivated to find facts that will help their case. The only flaw in this idea is when the law involves a divorce. The adversarial system breaks down in this area because the parties may not be interested in defending their legal right (Brooks, The judge and the Adversary system. p. 341-353).
Secondly, the parties will sustain their motivation to present all evidence. Thirdly, the parties have equal capacity, skill and resources to search for evidence regarding their case. This encourages the parties to assume a self-interested role (Brooks, The judge and the Adversary system. p. 341-353). Fourthly, both parties are given an equal opportunity to test the opponent’s evidence. The parties use cross-examination in order to ridicule or make their adversaries evidence seem un-credible. That poses a problem because an efficient cross-examiner can turn a reliable witness into a fool, thus altering the case.
Fifthly, all interests affected are represented (Brooks, The judge and the Adversary system. p. 341-353). In other words its up to the parties to bring forth al information that’s presented within the trial. The outcome process would be more legitimate if the fact-finding is left to the individual parties; therefore, the Canadian legal system should not incorporate the judge’s ability to aid the parties. The sole aspect within the inquisitorial system which should be adopted into the adversarial is the role of the witness. The trial is taking place because a person was victimized.
Although the crown takes it over as their case, it should remain the case of the victim. Since the victim receives minor benefits within the inquisitorial system (identified within the 6th paragraph) it seems fair, since they underwent the traumatization of being victimized. The truth should be considered a sub goal within the trial process, the ability to complete the trial should be the most important aspect. Whoever is equipped with the proper tools and necessities to win a trial deserves so rightfully, despite the fact it might not be the truth.
If an individual is capable to manipulate the court and avoid the truth, then he has earned the right to victory. This turns the trial into a game, where the party with the best strategy shall win. The adversarial system acts as a game, where two opposing parties are combating for the right of success. The trial becomes a psychological battle ground where, it unleashes the party’s primitive urges of winning. However there are a few dispute resolutions were the truth is the primary goal. The resolutions are called ADR (Alternative Dispute Resolution).
ADR is made up of three dispute resolutions, negotiation, mediation and arbitration. All three of these resolutions are cheap, and faster than adjudication. However, ADR`s primary focus is on truce. Similar to inquisitorial its end goal is on both members living in harmony. ADR is in no way similar to the adversary system. It challenges most to all of the systems assumptions. Where adversarial focus is primarily on ending the dispute, ADR doesn’t until both members are satisfied. However there are problems associated with ADR. If the parties do not wish to coop-orate then that could create a more difficult meeting.
ADR is a cheaper form of resolution, and its faster. However, in a society were conflict is required for change; ADR should not take over for adversarial since ADR revolves around no conflict. Adversarial should remain the dominant system since its far superior to ADR. Although the inquisitorial system has its benefits, the adversarial system will always be the better choice. The adversarial system reflects the concept of conflict within western society. It’s a very individualistic system where the two opponents battle to become victorious. Conflict is needed within our society to grow into a better world.
Due to biases associated with the judge aiding the fact-finding, the adversarial model will always be superior since it’s the party’s responsibility to fine their own evidence. There is however one aspect within inquisitorial which should be adopted into adversarial, which is the role of the witness. I fully support Brooks’ and his arguments for the adversarial system. Although truth should be a sub-goal if it conflicts with the primary goal of winning the game (the trial) then it should be disregarded. Society would be better if the Canadian court system stayed dominant in adversarial.