Talk:Adversarial system

Untitled

Wouldn't the redirect be better the other way around as User:Tarquin suggests? Alex756

Intro

Is it me or is the current intro rather too long and detailed? I'd be inclined to chop it off after the first para, making the rest a new section - but that would overlap somewhat with existing sections, so editing it down would take more work than that easy solution. Rd232 ^talk 02:04, 24 December 2005 (UTC)

I don't understand the summary or description of how "justice is done." Justice should be when the outcome of the case matches what the outcome should be in relation to the truth, whether the truth is known or not. As worded, justice is described as being done when one person convinces an authority figure of something, regardless of whether it is in reality true. — Preceding unsigned comment added by 96.238.181.140 (talk) 01:02, 22 February 2014 (UTC)

Possible merges

Do any of these articles deserve to be merged into this one? Adversarial process, Adversary proceeding, Adversarial review. They seem to be suspiciously similar, but possibly different contexts. -- Bovineone 02:06, 30 May 2006 (UTC)

"Right to counsel" paragraph

I think this paragraph might get into a little too much detail for this particular article. Ideas about how to present this in a more general and global way? - danculley 18:34 04 Aug 2006 (UTC)

"They point out that"

They point out that most cases in adversarial systems are actually resolved by plea bargain and settlement.

This declaration of fact desparately needs a reference showing that it is true. Is it? Even if it's true in the USA, that's not the same as "adversarial systems". If it isn't a demonstrable fact, but just an argument made by opponents of adversarial systems, then a reference to one such argument, and a modification of the sentence to read "They claim that in most cases" would be sufficient. Del C 07:46, 15 August 2006 (UTC)

writing style lacks clarity

Upon reading these paragraphs, I often can't determine when the adversarial system is being described, when it is being compared to the inqusitorial system, and when one system incorporates elements of the other. This should be re-written using more "compare and contrast" cues to make the two systems more identifiable. Perhaps a summary using "bullet points" might also be appropriate.

Distinguish criminal from civil matters

I would only like to caution that the crude distinction between adversarial anglo-saxon models and inquisitorial continental-European models applies only to criminal proceedings -- which an uninformed reader may not realized from the article.

In civil matters, the question is much more complex and may well cut the other way round: Civil law systems hardly ever use discovery. Systems in the common law tradition rely heavily on it in complex litigation. Discovery is, essentially, an "inquisitorial" court order that allows a claimant to make a case against the defendant on the basis of material that is in the possession of the defendant. The reason is, again fully in the inquisitorial tradition, that proceedings should represent a quest for truth.

This is simply not the case in continental systems. Here, the assumed facts are simply what adversarial proceedings may be able to prove. If a claimant cannot prove a point, it cannot rely on the state (judge) to help it find material to prove his point. Rather, he will lose on grounds of burden of proof.

Predating the Magna Carta?

I'm trying to find an accurate English translation for a German source where the quote reads about

"Der germanische Akkusationsprozeß wurde im Hochmittelalter zunehmend durch den Inquisitionsprozeß verdrängt."

It basically says that in Continental Europe (Holy Roman Empire, Scandinavia), a native Germanic (including Anglo-Saxon) form of criminal trial (called Akkusationsprozeß, lit. accusation trial) was gradually replaced by the inquisitorial system during the High Middle Ages. Since proper Anglo-Saxon legal history studies only seems to differentiate between adversarial and inquisitorial system, might this be the adversarial system in question? Akkusationsprozeß doesn't seem to properly equal trial by ordeal as that is usually referred to as Gottesurteil in Germanophone legal history studies, and in the context of above-mentioned quote, Akkusationsprozeß appears to rather refer to a rather sophisticated system, including a complex procedure of taking of evidence, testimonials, and probably authentication even, with a more fundamental legal philosophy behind it than just some way of leaving the decision to the Celestials. Or, in others words, might the adversarial system actually pre-date Magna Carta however be neither of Roman nor ecclesiastical origin? The current history section here seems a bit vague about that. --Tlatosmd 21:17, 10 July 2007 (UTC)

Added references/sources tag

I thought that this was appropriate due to the number and nature of the references given on this page. The first source serves only to back up conjecture in the 'History of the adversarial process' section; while the second reference is to a statement that does not give any validation for its criticism (obviously, found in the 'Cricitisms of the adversarial system' section). As a result of the lack of research, the article reads as being highly opinionated claptrap. Indja (talk) 18:46, 1 January 2008 (UTC)

Confusing characteristics

This article attributes characteristics that occur in some adversarial systems, particularly the US system that the writer appears to be most familiar with, as being inherrent characteristics of any adversarial system.

Some of the characteristics treated this way include: plea bargains, juries assessing damages and even the use juries in the first instance.

In the openning paragraph it is noted that "The adversarial system of law is the system of law (is) generally adopted in common law countries". Later (under Comparisons with the inquisitorial approach) the term "common law trial lawyer" is used as though working in an adverserial system is implicit.

DannyBoy603 (talk) 04:09, 8 December 2008 (UTC)

I agree, from what I understand from most of this article and from the article on inquisitorial trials the difference is mostly whether judges are allowed to question the parties, and it has nothing to do with the presence or absence of juries. Considering no-one else commented on this for nearly four years I will assume it is uncontroversial if I remove the content about juries and plea bargains. PinkShinyRose (talk) 23:04, 23 August 2012 (UTC)

On second thought: I just removed the mixing of adversarial trial with jury trial because the article mentions a link between the adversarial system and plea bargains (being that pleas in inquisitory systems can be checked by the judge, which is not possible in adversarial systems). PinkShinyRose (talk) 23:32, 23 August 2012 (UTC)

Semi-protection needed IMMEDIATELY

This article was severely vandalized on 4 February 2008 and I just caught the vandalism right now. This article needs indefinite semi-protection NOW, for any and all admins monitoring this article. --Coolcaesar (talk) 14:14, 8 December 2008 (UTC)

Introduction

The opening of the first sentence - "system that makes money on the contestment . . ." seems more opinion than anything, but gives the impression of being cited due to the citation at end (three citations for the same point being entirely unnecessary). It is a bias view of the system, as it's intent is not to make money, at least from a surface view. Also, on the adopted in common law countries generally, it would be good to have an example of a common law country where the adversarial system is not adopted. The only examples I can think of are parts of some common law countries which adopt an inquisitorial system, such as some districts in Canada, but then these are technically civil law systems within a larger common law entity. 130.216.117.218 (talk) 22:40, 20 January 2011 (UTC) michelle

Right to silence in English law

There is a paragraph (the last paragraph in the basic features section) about inferences by the judge. Does this have anything to do with the English law system being an adversarial system? Shouldn't this be in the article on English law instead? PinkShinyRose (talk) 23:40, 23 August 2012 (UTC)

More history section

I think this article needs more info on the history of the adversarial system. Komitsuki (talk) 06:24, 8 February 2014 (UTC)

The history section was removed in a recent edit. Jarble (talk) 18:31, 16 February 2019 (UTC)

Request for review on Introduction by legal experts - many links to page - clarify contrast

Hi,

There are alot of links to this page, and I wish to gain clarity specifically with regard to:

"The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case.[1][2][3]"

What differentiates "an impartial person or group of people, usually a jury or judge" from:

"It is in contrast to the inquisitorial system used in some civil law systems (i.e. those deriving from Roman law or the Napoleonic code) where a judge or group of judges investigates the case."

A "a judge or group of judges investigates the case."?

Thoughts or help please, thanks!

Dave — Preceding unsigned comment added by David Forgianni (talk • contribs) 08:43, 19 February 2016 (UTC)

Did you even read the article? This is adequately explained in the body of the article. The point of being impartial is that the judge or jury cannot go beyond what is presented to them. : For example, a judge who served as a plaintiff's attorney before being elected or appointed might be more sympathetic to plaintiffs. A judge might sense that an inexperienced plaintiff's attorney is fumbling around and not asking the right questions to competently elicit testimony in support of each and every essential element of plaintiff's claims. Or sometimes a smart jury (one that's watched lots of TV shows) can vaguely sense as much. But in an adversarial system, neither the judge or jury can then directly examine the plaintiff themselves to try to fill in those obvious holes, and trying to do that is grounds for mistrial or appellate reversal for showing bias in favor of the plaintiff. That is, each side in an adversarial trial bears the risk that their counsel may not be able to competently bear their burden of proof, and the finder of fact cannot jump in and help either side. In an inquisitorial system, the finder of fact is not constrained like that and can take a more active role in discovering and eliciting evidence and following it wherever it leads. --Coolcaesar (talk) 09:29, 21 February 2016 (UTC)

History

The history section as currently written does not add anything of substance and has duff reference links (and dubious assertions), so I'll just remove it. — Preceding unsigned comment added by 194.228.11.29 (talk) 01:11, 16 February 2019 (UTC)

Succinct explanation

While this article goes into great depth about the adversarial system, it appears to have gotten lost in the complexity and overlooked the most succinct explanation: An adversarial system of justice is one designed for the enrichment of lawyers. :P 118.169.9.151 (talk) 02:37, 10 July 2021 (UTC)