Where Did the Adversarial Legal System Originate

The role of prosecutors may vary depending on the legal tradition of a given country. Two types of legal traditions dominate the type of investigation and jurisprudence in the world: adversarial and inquisitorial legal systems. Common law countries use an adversarial system to establish the facts in the decision-making process. The prosecution and the defence compete with each other, and the judge serves as an arbiter to ensure fairness to the accused and to ensure that the legal rules of criminal procedure are followed. The adversarial system assumes that the best way to get to the truth about a case is through a competitive procedure to accurately determine the facts and the application of the law. The adversarial system is the bilateral structure in which criminal courts operate and pits the prosecution against the defence. The contemporary Anglo-American antagonist system developed gradually over several hundred years. The first English jury trials were unstructured trials in which the judge could act both as inquisitor or even as prosecutor and investigator. Defendants were not allowed to have defence counsel, call witnesses, cross-examine, or offer AFFIRMATIVE DEFENCES. All sorts of evidence were allowed, and the jurors, although supposedly neutral and passive, were in fact heavily influenced by the judge`s remarks and instructions. In fact, before 1670, jurors could be fined or imprisoned if they refused to follow a judge`s instructions.

Since an accused is not compelled to testify in adversarial criminal proceedings, he or she may be questioned by a prosecutor or judge only if he or she chooses to do so. However, if they decide to testify, they will be cross-examined and could be convicted of perjury. Since the decision to maintain an accused`s right to remain silent prevents any examination or cross-examination of that person`s position, it follows that the defence counsel`s decision as to the evidence to be cited is in any event a decisive tactic in the adversarial system and could therefore be considered a manipulation of the truth by a lawyer. Admittedly, the skills of the lawyers of both parties must be fairly evenly distributed and submitted to an impartial judge. The opposing party requires opposing parties to produce relevant information, present witnesses and cross-examine them. This procedure is mainly observed in countries where the Anglo-American common law legal system prevails, although since the late 20th century several other countries have adopted aspects of the adversarial system. For example, Italy has introduced procedures modelled on US law, making judicial proceedings contradictory. This is an online version of West`s Encyclopedia of American Law by openlibrary.org that requires a connection but is free. The encyclopedia is a source of legal terms, jurisprudence, statutes and subjects. Some founding cases are included as well as selected historical documents. You can borrow a band digitally for up to fourteen days.

Rules of evidence are also developed on the basis of the opponents` system of objections and on the basis of which they tend to interfere with the factual judge, who may be the judge or jury. In a sense, the rules of evidence may be used to confer limited inquisitorial powers on the judge, since he or she may exclude evidence that he or she considers untrustworthy or irrelevant to the point of law at issue. One of the most important differences between the adversarial system and the inquisitorial system occurs when an accused admits the crime. In an adversarial system, there is no longer any controversy and the case results in a conviction; although in many jurisdictions the accused must have a summons for his crime; A manifestly false confession is also not accepted by an ordinary court. On the other hand, in an inquisitorial system, the fact that the accused has confessed is just another fact to be used as evidence, and the confession of the accused does not relieve the prosecution of the obligation to present a complete case. This allows plea negotiations in adversarial systems in a way that is difficult or impossible in the inquisition system, and many crimes in the United States are dealt with without trial by such plea negotiations. The independence of the judiciary has developed somewhat more slowly. Before the 1800s, English judges were still biased by their ties to the Crown, and American judges were often politically partisan. U.

Supreme Court Chief Justice John Marshall, who served from 1801 to 1835, established the supremacy and independence of the Supreme Court in his opinion in the MARBURYV case. MADISON, 5 United States (1 Ranch) 137, 2 L. Ed. 60 (1803). Marbury established “the fundamental principle that the federal judiciary is first and foremost in the interpretation of constitutional law” (Cooper v.