Adversarialism

Created by: Lucy.payne
Created on: 12-01-20 12:49


	Adversarialism
	Advantages Ensures a fair trial Judges are not overly involved - 'trial weary' and judges are used a umpire Adversarial system such as that in the UK shows a strong separation of powers (Montesquieu) - ensures that the power of the state is limited Damaska - the use of lay justice guarentees impartiality Damaska - is it better to have entirely fair proceedings or an entirely correct outcome?	Disadvantages Langbein's 'Combat Effect' - winning a trial in an Anglo-American trial often entails tactics that distort or suppress the truth, such as concealing relevant witnesses or engaging in abusive cross-examination Langbein's 'Wealth Effect' - going through the criminal justice system can be expensive - more money means a better defence as one can pay for a better barrister Linda Mulcahy's feminist critique - the idea of "'zero-sum- proceedings (one winner and one loser) means parties are forced to construct opposing arguments which detract from the positive aspects of their relationship with the other party"
	Evaluation The overarching goal of Adversarialism is to ensure a fair trial. It does in a way succeed in this as by using the legal expert as a way of keeping checks in the court while the jury acts as fact finder, we get a balance of both legal minds and the general public in coming to judgments. This helps to reduce issues such as judges becoming 'trial weary' but also allows the judge to make an informed decision on sentencing at the end of the trial. However, it is clear that the system is by no stretch of the imagination perfect. Langbein's critiques, particularly the 'Wealth Effect', show the imbalance in the system, and how particular individuals such as the poorer in the society are significantly disadvantaged when it comes to criminal proceedings. It is no secret that many criminals come from socially and economically deprived backgrounds, showing the impact of the 'Wealth Effect' on the fairness of adversarial trials. As a result, it is impossible to ignore that the 'Wealth Effect' significantly undermines the goal of a 'fair trial' in an adversarial system, and so despite its processes such as using judges as 'umpires', Langebein's critiques demonstrate how Adversarialism is still a way from achieving its ultimate goal of a completely fair trial.

Adversarialism

Advantages

Ensures a fair trial
Judges are not overly involved - 'trial weary' and judges are used a umpire
Adversarial system such as that in the UK shows a strong separation of powers (Montesquieu) - ensures that the power of the state is limited
Damaska - the use of lay justice guarentees impartiality
Damaska - is it better to have entirely fair proceedings or an entirely correct outcome?

Disadvantages

Langbein's 'Combat Effect' - winning a trial in an Anglo-American trial often entails tactics that distort or suppress the truth, such as concealing relevant witnesses or engaging in abusive cross-examination
Langbein's 'Wealth Effect' - going through the criminal justice system can be expensive - more money means a better defence as one can pay for a better barrister
Linda Mulcahy's feminist critique - the idea of "'zero-sum- proceedings (one winner and one loser) means parties are forced to construct opposing arguments which detract from the positive aspects of their relationship with the other party"

Evaluation

The overarching goal of Adversarialism is to ensure a fair trial. It does in a way succeed in this as by using the legal expert as a way of keeping checks in the court while the jury acts as fact finder, we get a balance of both legal minds and the general public in coming to judgments. This helps to reduce issues such as judges becoming 'trial weary' but also allows the judge to make an informed decision on sentencing at the end of the trial. However, it is clear that the system is by no stretch of the imagination perfect. Langbein's critiques, particularly the 'Wealth Effect', show the imbalance in the system, and how particular individuals such as the poorer in the society are significantly disadvantaged when it comes to criminal proceedings. It is no secret that many criminals come from socially and economically deprived backgrounds, showing the impact of the 'Wealth Effect' on the fairness of adversarial trials. As a result, it is impossible to ignore that the 'Wealth Effect' significantly undermines the goal of a 'fair trial' in an adversarial system, and so despite its processes such as using judges as 'umpires', Langebein's critiques demonstrate how Adversarialism is still a way from achieving its ultimate goal of a completely fair trial.

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Adversarialism

Adversarialism

Advantages

Disadvantages

Evaluation

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