One of the features of the Adversary System of trial is the need for legal representation. Evaluate this feature of the Adversary System (4 marks)
-Outline and discuss a strength (2 marks) and a weakness (2 marks) of the feature.
Eg. Due to strict rules of evidence and procedure there is a great disadvantage for any person to prepare for court, or the appear before a court, unrepresented. Legal representatives aim to actively put their client’s case as strongly as possible and to diminish the opponents case.
Possible strength:
-Specialist can provide advice and is an experienced spokesperson
Possible weakness:
-cost.
‘Every person in Victoria can be confident that, if he or she should face trial in Victoria, the trail will be conducted with impartiality, fairness and independence. ’ Referring to the above statement, explain two features of the adversary system of trial. (4 marks)
2007 examiners report:
Students could have used any of the five features of the adversary system of trial, identified in the study design as the role of the judge, the role of the parties, the need for legal representation, the burden and standard of proof, and the need for rules of evidence and procedure.
Some students referred to the jury system as a feature of the adversary system; however, the jury system is not a feature and is a separate system. Weaker students made no reference to the given statement.
The following is an example of a good answer.
One feature of the adversary system is the role of the parties. The adversary system adopts a process whereby each party has complete control of their own case and decides which evidence to use when defending or prosecuting the case. This supports the idea of independence – it means that the court is not involved at all in how a case is conducted and is left up to the party to decide how to present the case. This also supports the idea of fairness because it means that every party is on a ‘level playing field’ in terms of choosing how to go about the case.
Another feature of the adversary system is the role of the judge. The judge in an adversary trial is required to act impartially, as an unbiased independent umpire who does not get involved in the way the parties present their case. This supports the idea of independence (as the judge takes no sides), fairness (as it means that the parties are being ‘umpired’ and are bound by the same rules) and impartiality (as there is no biased umpire)
A professor of law recently said in a public speech that ‘the role of the judge in the adversary system of trial is an important feature’ Evaluate the role of the judge in the adversary system of trail. (5 marks)
2011 exam question nine see examiners report
Outline one possible reform to the adversary system, explaining why this would be an improvement. (3 marks)
In outline of one reform the focus should be on the feature that needs improving (i.e the weakness of it) and then how the suggested improvement can overcome those weaknesses
Eg. Increasing the role of the judge would allow and encourage the judge to take a more active role during a trail such as assisting a poorly represented party through cross-examination of a witness or questioning barrister over evidence being present or challenging them about why or why not certain precedents have not been submitted for consideration by the court. At the moment the judge is expected, as part of being impartial , to be inactive-this could lead more to a search for the truth (rather than a winner) without unduly affecting their ability to be objective and impartial.
It could be argued such a reform could increase the involvement of the judge and encourage a judge to become bias.
However a more active role could lead to greater efficiency as judges could ask questions and call witnesses to ensure a case is decided correctly in the interests of finding the truth.
Discuss the extent to which the adversary system achieves one of the elements of an effective legal system. In your answer, compare twofeatures of the adversary system with the inquisitorial system. (10 marks) (2013 question 13)