Adversarialism
- Created by: Lucy.payne
- Created on: 12-01-20 12:52
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- Adversarialism
- Features
- The Parties
- Parties get to choose whether or not to take part (party choice)
- Responsibility for both to enter the argument and then find the facts and evidence
- Responsibility to make legal argument
- Judge is umpire
- Check the process is followed
- Check the contest doesn't get out of hand
- Check that it is a fair trial
- Jury is fact finder
- Get to decide whether someone is guilty based on facts
- In some circumstances, we don't have a jury e.g. Magistrates Court
- Judicial figure will be decider of facts
- The Parties
- Evidence and Proof
- Burden of Proof
- Who has to prove a particular fact?
- Criminal Trial: prosecution
- Standard of Proof
- Question of how far do they have to prove
- Criminal law: 'beyond reasonable doubt'
- Civil law: 'on the balance of probabilities'
- 'Character' Rule
- Bad or horrible person is not relevant in a criminal trial
- 'Confession' Rule
- Confessions made in instances such as torture are not admissable
- 'Hearsay' Rule
- Cannot be tested further in court
- You cannot be tested on something you didn't see
- Right to Silence
- Defendant doesn't have to say anything
- It is the prosecutions job to prove
- Burden of Proof
- Theories
- Mirjan Damaska
- Moved from an inquisitorial system to an adversarial system
- Tried to explain why we have an adversarial system
- Distrust of public officials
- Tolerant of evidentiary barriers
- Limiting the search for truth for fear of governmental power
- Langbein
- Combat effect
- Wealth effect
- Linda Mulcahy
- Zero sum proceedings force opposing arguments
- Opposing arguments detract from the positive aspects of the parties relationship
- Mirjan Damaska
- Features
- Concern: ensure fair trials
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