legal studies 3c. people must be treated fairly right to be heard by an unbiased decision-maker ...
TRANSCRIPT
THE ADVERSARY SYSTEMLegal Studies 3C
NATURAL JUSTICE
People must be treated fairlyRight to be heard by an unbiased decision-makerKnow allegations made against youGiven a chance to respond to allegationsAvenue to appeal decisionFairnessTransparencyEquality before the law
CRIMINAL AND CIVIL CASESCriminal Civil
Person bringing the case
Person defending the action
Aim
Standard of proof
Verdict
Outcome
Examples of laws
SCENARIO:You have been charged with the murder of a friend. The police have evidence to prove you committed the murder.
You have pleaded not guilty. There will be a trial (judge and jury) to determine the outcome.
What principles and processes would you want in place within our justice system so justice is achieved?
WHAT IS THE ADVERSARY SYSTEM?The adversary system of trial is where two opposing parties, or adversaries, fight in court to win their legal battle. The trial is presided over by an independent and impartial umpire, and is conducted according to rules of evidence and procedure.
MAJOR FEATURES OF THE ADVERSARY SYSTEM
Role of the partiesRole of the judgeStandard and burden of proofNeed for rules of evidence and procedureNeed for legal representationSingle event (continuous trial process)
ROLE OF THE PARTIES / PARTY CONTROL
Instigate the proceedings Investigate the factsDecide which facts should be brought before the court Investigate the lawDecide whether to have a jury in a civil caseChoose whether to have legal representation
ROLE OF THE JUDGEAct as an impartial umpireEnsure rules of evidence and procedure are followedDecide questions of lawClarify issuesDirect the jury if there is oneDecide questions of fact when there is no juryDecide the sanction or remedy
** Tim Ellis Case
RULES OF PROCEDURESteps for bringing out the evidenceEach party will present an opening address to the courtThen present their witnesses who are subject to 3 stages of questioning
Each party will then present their closing summary to the court
Aim is to treat both sides equally and fairly
RULES OF EVIDENCEAdmissible evidence
Oral evidence given by a witnessSworn statement (affidavit)An object (murder weapon, stolen goods, photos)Audio or audio-visual materialSet of circumstances or facts (circumstantial evidence)
Inadmissible evidenceHearsay evidence Prior convictions Irrelevant evidence Privileged informationOpinion evidence Evidence obtained illegally
Evidence of bad character
LEGAL REPRESENTATIONExperts who are familiar with the strict rules of evidence and procedure
Help to ensure that the parties are able to present their best possible case
Clickview
ACTIVITIES Read page 382 – 407 (blue edition) Read page 360 - 383 (red edition)
Questions:
1. Briefly explain the 3 elements of an effective legal system including when these elements may not be achieved
2. In what way is party control an essential element of the adversary system?
3. Why is it essential to the adversary system that the judge be independent and impartial?
4. Why are the rules of evidence necessary for the adversary system to operate?
5. How do the rules of procedure operate to bring out the truth?
6. Why is equal legal representation an essential element of the adversary system?
7. Why might the truth not be found in the adversary system of trial?
PATRICK WARING CASE Legal representation (contacted other legal defence to assist, costly) Rules of evidence (evidence collected incorrectly, Party control (Patrick did not reveal vital information, contracted other investigators,
chose to leave Patrick in remand) Single event (length of time) Effective legal system Strengths and weaknesses of adversary system
Group discussion
https://www.youtube.com/watch?v=WKeTt0wFkD8&list=PL_P6w1Xp4KP8DoUenST0UV24a4bavTnkT
INQUISITORIAL SYSTEMSystem used in many European, Asian and South American countries.
Court is actively involved in determining the facts and conduct of a trial.
Its main role is to find out the truth of an issue.
INQUISITORIAL SYSTEMRole of the parties
Parties have a greatly reduced role as the judge has control of the case.
Role of the judge Investigate the case Define the issues to be resolved Gather evidence (together with the police) Call and question witnesses during the trial
INQUISITORIAL SYSTEMBurden and standard of proof
No formal burden or standard of proof is set as the judge is the person responsible for bringing evidence and finding out the truth.
Rules of evidence and procedure Less reliance on strict rules of evidence and procedure, for example inclusion of prior convictions, character evidence
Extensive use of written evidence (like statements)
Legal representation Assist the judge by further questioning of witnesses.
INQUISITORIAL SYSTEM Clickview – The Adversary system – chapter 5 Read page 409 – 415 textbook (blue edition)
Outline the major differences between the adversary and the inquisitorial systems of trial
Describe some of the inquisitorial features that exist within Australia’s legal system.
‘The inquisitorial system is more likely than the adversary system to reach the truth’. Discuss.
‘The adversarial system of trial is more likely to reach a verdict that is acceptable to the parties and the people than the inquisitorial system of trial’. Discuss.
THE ADVERSARY SYSTEMAccess WordPress site:
“The Adversary System tasks and additional readings” document
SELF-REPRESENTATION https://www.youtube.com/watch?v=YDxx3K8ZYgk
http://www.theage.com.au/victoria/legal-diy-as-county-court-release-selfhelp-youtube-video-20130911-2tkl1.html