Chapter 9
... is based on two parties battling to win the
case, each acting as the adversary of the
other.
ROLE: to provide a procedure for the parties to
present and resolve their case, in as fair a
manner as possible.
5. The Need
for Rules of
Evidence and
Procedure
1. The Role of
the Parties
(party control)
The Adversary
System
2. The Role of
the Judge
(impartial
arbiter)
4. The need for
Legal
Representation
3. The Burden
of Proof and
Standard of
Proof

Each party controls their own case and has
control over the decisions about how the case
will run as long as the rules of evidence and
procedure are followed.
Instigating proceedings
Investigating the facts
Deciding which facts should be brought before
the court
4. Investigating the law
5. Deciding whether to have a jury in a civil case
6. Choosing whether to have legal representation
1.
2.
3.



Party control allows the parties to feel that
they are in control of the situation and
responsible for the outcome.
It satisfies the competitive or combative spirit
When given the opportunity to fight to win
people generally more satisfied with the
outcome




Judge or magistrates is (an Impartial umpire)
(Keeps contest fair) The role is to ensure the
courts processes and procedures are carried out
according to strict rules of evidence and
procedure and each party is treated fairly.
Judge generally not allowed to interfere or
favour any side – rather can ask questions, recall
witnesses etc with permission of both parties.
(ensure onus of proof is discharged) decides the
admissibility of evidence and decides the
questions of law



If the judge or magistrates favours one side
then the contest would not be fair.
The decision maker (if no jury) must be
independent – no previous knowledge of the
accused or parties in civil case.
Should not have any opportunity to form any
preconceived ideas before the trial/hearing
and must set aside personal biases.
Burden of proof – lies with the person who is
bringing the case.
E.g. Criminal case prosecution and Civil case
Plaintiff
The person who brings the case has to prove
their view of the facts is correct
 Standard of proof - the strength of the
evidence needed to prove the case
E.g. Criminal cases – Beyond Reasonable
Doubt a in civil cases Balance of Probability



The burden of proof indicates who must
begin the battle.
The standard of proof indicates the strength
of proof required to decide who is successfull



Role of preparing and conducting a case
usually undertaken by legal representatives
on behalf of the parties
Legal representatives are experts who are
familiar with rules of evidence and procedure
Experts ensure parties are able to present
their best possible case and assist in
achieving a just outcome.

The truth should emerge from each party representing
their own case to the best of their ability and the other
side showing the flaws in the evidence presented

Presenting a case without legal rep may therefore result in
an unjust outcome because parties might not know how
to bring out the evidence. (linked to rules of evidence and
procedure)

To work effectively – should have equal representation. If
one party is better represented this could lead to an unfair
advantage and possibly an incorrect result.
Each hearing or trial governed by rules of
evidence which aim to ensure fair and equal
treatment.
Evidence – oral or written form (sworn
statements –affidavits), objects, (e.g. Murder
weapon, stolen goods, photos diagram or
tape recordings), a set of circumstances or
facts indicated (circumstantial evidence –
where inferences can be drawn from facts)

Ensure:
 The parties are treated fairly
 The jury is not distracted by irrelevant material
 Unreliable or illegally obtained evidence is not
heard by the court
 Evidence is not unduly prejudicial to the
defendant (eg bad character not given)
 In criminal case only evidence about the case –
not prior convictions (except where propensity
evidence given)



Provide a framework in which the court cases
can take place and resolution achieved
Establishes steps for bringing out the
evidence e.g. Oral evidence, and cross
examination (the truth should emerge)
Procedure aims to treat both sides equally
and fairly and creating an atmosphere of
respect so that parties will follow the decision
of the court
Summarise 456 to 463
Question 1 to 16 page 463
Read Pages 465 to 469
Questions 17 to 22 page 470
Complete the Advantages and Disadvantages
worksheet
GROUP WORK
In your Group you are to take one element of the
adversary system and write a detailed response
that illustrates how the element is both an
advantage and disadvantage. Present this to the
class – each member must contribute!!!
Read and summarise pages 471 to 480
Complete only Q23 page 477