The term adversary system sometimes characterizes an entire legal process, and sometimes it refers only to criminal procedure. In the latter instance it is often used interchangeably with "accusatorial procedure," and is juxtaposed to the "inquisitorial," or "non-adversary," process. There is no precise understanding, however, of the institutions and arrangements denoted by these expressions.
Nevertheless, several characteristics are commonly associated by American lawyers with the adversary criminal process. These include a relatively passive tribunal that ideally comprises both judge and jury; the presentation of evidence by the parties through their lawyers, who proceed by direct questioning and cross-examination of witnesses; the representation of state interests by one of the parties, the prosecutor; a presumption that the defendant is innocent until proved guilty; and the principle that he cannot be forced to testify against himself. The contours of the adversary system remain uncertain because the phrase has been used to describe three distinctive, albeit related, meanings.
The traditional meaning
In Anglo-American jurisdictions the phrase evokes both the aspirations and the actual features of Anglo-American criminal justice. It is incorporated to some extent into American constitutional law through provisions dealing with assistance of counsel and due process of law.
The attributes of "adversariness" change according to context. When techniques of ascertaining facts and deciding legal issues are discussed, a central feature is seen as a confrontational style: prosecution and defense prepare and present their cases to the court, and a decision is reached on the basis of the two alternative versions of fact and law. In this variant, partisan advocates are an essential aspect of the system, with their partisanship supported by canons of legal ethics (Fuller, p. 32). There is some equivocation, however, in the case of the public prosecutor, who is recognized to have a public responsibility that imposes limits upon the allowable degree of partisanship.
When the position of the criminal defendant is at issue, the focus shifts. The mainstay of the adversary system resides in the privilege against self-incrimination (Malloy v. Hogan, 378 U.S. 1, 7 (1964)), which implies high obstacles to conviction and an opposition to unbridled crime control. Any lowering of the evidentiary barriers erected to protect the defendant, such as the requirement of a unanimous jury verdict of guilt, is treated as a step away from the adversary ideal.
Adversary features are found not only in the contested trial but also in appellate proceedings, where arguments by the parties must ordinarily precede the decision of the appellate court. Even the pretrial phase of the criminal process is increasingly seen as displaying adversary characteristics. The privilege against self-incrimination, for example, now radiates into the earliest police inquiries, according protection to the suspect. The right to pretrial release and the hostility to preventive detention are also linked to the adversary system, particularly its emphasis on the presumption of innocence. On the other hand, the widespread practice of negotiations between the prosecution and the defense (plea bargaining) is usually treated as subverting adversariness. Where the defendant pleads guilty after such negotiations, the core of the adversary system, the contested trial, does not take place; moreover, the pressures used to encourage guilty pleas threaten the adversary principle that the defendant may not be forced to incriminate himself. At the same time, however, plea bargaining is quite "adversary" in the sense that it is dominated by the parties and their lawyers, rather than the court.
The adversary system has its distinctive source in liberal ideology. Consider, for example, the image so often used by lawyers of "balancing advantages" (or maintaining an "equality of arms") between the prosecution and the defense; such a goal makes sense only in light of liberal theories that treat the state interest as analogous to—and not superior to—private interests. The presumption of innocence, the requirement of proving guilt beyond a reasonable doubt, and related notions are also suffused with liberal values. Moreover, the passive attitude of the decision-maker has an affinity with the passive laissez-faire ideology.
It is this linkage to ideological currents that has produced two versions of the adversary system in its traditional meaning. In the "classical" variant, the ideal judge is propelled into action only to resolve disputes between the contending parties. The emergence of welfare-state liberalism has generated changes in this version of the idea; just as modern liberal governments intervene in the economy to correct failures of competitive markets, so, according to this view, an adversary judge should intervene in the trial to redress the competition of the parties. Whereas the classical variant celebrates the parties' dominance over the process, a later variant would curb this dominance (Fuller, p. 41). But there is disagreement over the extent to which the judge can intervene without negatively affecting the incentives of the prosecution and the defense for the zealous action required by the adversary system. Some see a solution to failures of party competition not in making the judge more active, but rather in replacing "ineffective" advocates by more capable ones.
It is plain that the adversary system in both its traditional senses is inextricably linked to legal ideology. It is praised in many quarters as a palladium of liberty and contrasted with an antipodal "inquisitorial" criminal process, that term serving to convey the worst features of continental European criminal justice prior to its reform in the wake of the French Revolution. Any departure from adversary features is said to imply a lapse into a system where searches are unbridled, the accused is detained without limits, his confession is coerced, counsel is denied him, and he is not accorded the benefit of doubt. This overdrawn polarization is reflected in such important judicial decisions as Miranda v. Arizona, 384 U.S. 436, 460 (1966).
The adversary system is extolled not only because of the protection it accords the accused, but also because its competitive style of presenting evidence and argument is thought to produce a more accurate result than an "inquisitorial" alternative, where the judge monopolizes proof-taking. According to this view, the judge who conducts an apparently nonpartisan inquiry cannot truly keep an open mind and lacks sufficient incentives to do a proper job. The possibility of a tension between the goals of obtaining accurate results and maintaining high barriers to conviction is often denied. It is occasionally conceded, however, that such barriers, while they lessen the possibility of convicting an innocent person, also increase the possibility that the guilty may escape conviction. Hence, by keeping these barriers high, as mandated by the adversary system, the accuracy of outcomes in the total number of cases irrespective of the kind of error can well be decreased. Where this is recognized, proponents of the adversary system accord decisive weight to liberal values: it is better to let a larger number of the guilty go free than to convict a smaller number of innocent persons.
The traditional Anglo-American concept of the adversary system has often been criticized by lawyers from other legal cultures. It has been vigorously questioned whether the clash of two zealous partisans represents the best instrument of discovering the truth. Moreover, the ample opportunities for the defendant to escape conviction have been said to exist mainly for those able to retain high-powered counsel. Finally, the practical importance of the adversary system in America has been doubted in view of the fact that most criminal cases never reach the stage of a contested trial but are settled through negotiations between prosecution and defense in the course of plea bargaining.
The adversary system as traditionally understood has its domestic enemies as well. Early in the twentieth century an eminent American legal scholar attacked it as inspired by a "sporting theory of justice" that treats substantively correct outcomes as relatively unimportant (Pound, p. 404). It is testimony to the continuing vitality of the traditional concept, however, that most critics castigate the alleged excesses of the system but fail to formulate alternatives to it. Only occasionally is inspiration for fundamental change sought in the non-adversarial modern criminal justice systems of Western Europe (Weinreb, pp. 117–146; Schlesinger, pp. 382–385).
The traditional concept of the adversary system evokes both actual features of Anglo-American criminal process and its aspirations. Inevitably, therefore, it combines both descriptive and prescriptive elements and cannot be expected to achieve rigorous internal consistency and coherence. It is not so much analytically precise as it is hortatory and rhetorical, aimed at mobilizing consent and at winning points in legal argumentation.
A model of conflict-solving procedure
A second way to view the adversary system is as a theoretical model. Conflict resolution is posited as the goal of the process, and the adversary model is then understood to comprise those procedures that implement this goal most effectively. In this second sense, then, the adversary system is a blueprint designed to promote the choice of certain procedures. Elements of the blueprint and features traditionally classed as adversary do not coincide.
Two methods have been used to construct the theoretical model of the adversary process. One method begins from the initial state of conflict between two sides and conceives of the ideal conflict-solving process as a simulation of, and substitute for, the private war between them. This leads to the central image of proceedings as a contest of two sides before the conflict-resolver. The task is then to develop procedural arrangements logically following from this central image. For example, if the adversary judge were permitted to inquire into facts not in dispute between the parties, the proceedings to determine these facts would "logically" cease to be a party contest. Consequently, the adversary model denies to the judge any independent powers to inquire into facts.
The other method starts from the desired end, which is said to be the acceptance of the court's decision by the disputants. The task here is to identify those procedures most likely to produce such acceptance, beginning with the premise that the goal of acceptance is promoted where the parties are permitted to exercise control over procedural action. In contrast to the first method, which relies on logical analysis, the second relies on observation and experiment. For example, whether participation of lawyers is an integral feature of the model hinges on whether such participation contributes to the control of the parties over the process.
As a model of a conflict-solving process, the adversary system is known in both continental European and Anglo-American legal cultures. Under the label "accusatorial proceedings" the model has a long history on the Continent.
The continental legal culture. Efforts to construct an ideal conflict-solving process are to be found in twelfth-century Roman Catholic ecclesiastical scholarship. By the fourteenth century, Italian students of procedure included in accusatorial proceedings many features now incorporated in the adversary system. But the most inclusive models of the conflict-solving process are products of rationalist "natural law" scholarship at the turn of the nineteenth century.
These models appear extremely "adversarial" even from the perspective of Anglo-American legal culture. Termed "the party-dominated process" (Parteiverfahren ) by German legal theorists, they deserve brief description. Under them, the judge cannot initiate or continue proceedings without an actual dispute. Parties control the factual and, to a great extent, the legal boundaries of the case. Pleadings and stipulations are necessary devices to define and narrow issues, and the judge is not permitted to overrule such mutual arrangements. The court is also denied the power to call witnesses on its own initiative. Even the court's powers of interrogation, otherwise very important on the Continent, are seriously curbed: only questions suggested by the litigants can be asked. Party "autonomy" is thought to be incompatible with the duty to testify, and thus a party can invoke a general "right to silence" if called to take the stand. Usually, minimal obligations are imposed on the litigants to disclose evidence or information. "Nobody is expected to supply weapons to his adversary" is the often-invoked maxim.
But this model, so rigorously designed as a contest of two sides before a passive judge, was recommended as a blueprint only for civil cases that were regarded as self-contained private controversies. Because no larger implications were perceived in such lawsuits, judicial passivity seemed appropriate, if not mandated by the requirement of judicial neutrality. Many continental European countries, therefore, enacted codes of civil procedure incorporating features of the recommended theoretical model. The rational implementation of policies toward crime was thought, however, to make the blueprint inapplicable in criminal cases. Though the logic of the party-dominated model might have permitted the prosecutor to represent the public interest in crime control, it was viewed as unacceptable to give the other party—the accused—mastery over defensive issues. If this were done, a substantively erroneous result might be imposed on the passive court. For example, an insane defendant could be convicted if, for some strategic reason of his own, he failed to raise the insanity defense.
European procedural theory thus developed a variety of modified blueprints for the criminal process, some of which were built on the "accusatorial principle" or on the "principle of contradiction" (Damaška, p.560). In their most radical form, they recommended a partial simulation of the party contest, with evidence collected mainly by a nonpartisan but active decision-maker. The facts alleged in the prosecutor's charge constitute the only limit on the court's inquiry.
The Anglo-American legal culture. In Anglo American countries, efforts to formulate organizing principles of procedure are mainly the product of the twentieth century. In civil procedure, for example, continental influences have led to the adoption of the twin principles of party prosecution (that the court will take no step in the case except on motion of a party) and of party presentation (that the scope and content of the controversy are to be defined by the parties). As a shorthand expression of the characteristics of the classical civil lawsuit, the two principles enjoy a certain currency in scholarly discourse.
In criminal procedure, theoretical study has been devoted principally to the discrepancy between the realities of law enforcement and the aspirations expressed in the traditional concept of the adversary system. But there was another factor that contributed to the emergence of theoretical models. A fascination with empirical science led to the desire to compare the efficiency of some features of the adversary system with the inquisitorial alternatives. Most of the empirical studies focused on alternative ways of developing factual and legal material for decision. For the narrow purposes of this research, an adversary "mini-model" was defined as an arrangement where proof and argument are presented to the decision-maker by two partisan advocates, whereas the inquisitorial mini-model was described as a unilateral official inquiry into facts and law. The two models were then used in laboratory experimentation to test their relative efficacy in counteracting the decision-maker's bias, producing reliable results, or attaining some other goal. For example, since in the adversary model the judge is required to listen passively to both sides of the case before making a decision, it was hypothesized that he or she would be less likely to become prematurely biased and draw a conclusion too early (Thibaut and Walker, 1975; Sheppard and Vidmar).
The models reviewed here are all based on the assumption that the goal of the process is the resolution of a conflict. They constitute useful guidelines for reform of procedural systems only insofar as these systems are directed toward the same goal. What then is the relation of theoretically posited goals to reality? Conflict resolution as a goal may be restricted to the contested trial in Anglo-American countries, and even there it may be a secondary or only a superficial aim. If the court refuses to accept the defendant's guilty plea, as it is empowered to do in the majority of common law jurisdictions, the case goes to trial despite the absence of a genuine controversy between the prosecution and the defense.
An archetype of Anglo-American process
In its third sense, the adversary system is a procedural type designed by comparative law scholars to capture characteristic features of the common law process, particularly when contrasted with continental systems. For some of these scholars the adversary type is the common denominator of all Anglo-American procedures, yet this conception is problematic. Consider, for example, the question whether the exclusion of illegally obtained evidence from the prosecution's case at trial represents a defining feature of the adversary type. Because the exclusionary rule has not been adopted by all Anglo-American jurisdictions, but has been adopted in several continental European countries, the answer is no (Hermann, p. 18). Under this approach the precise meaning of the adversary type remains hostage to changes in the law of a single common law country.
Other scholars conceive of the adversary type as an ideal of procedure that is not fully duplicated in any actual system. This second approach can best be exemplified by analogy with styles in art. To classify a work of art as pertaining to a particular style, it is thought sufficient that the work encompass some, though not all, elements of the stylistic ideal. Similarly, certain features can be viewed as typically adversarial, although they are found only in a small number of actual procedural systems. Of course, in order to be useful, the ideal type of the adversary process must provide a structure in which actual systems can be recognized, albeit in exaggerated or stylized form. This second approach is more widespread and will therefore be examined in some detail.
Most scholars describe the ideal type of the adversary process by focusing their attention on the trial stage of the criminal process and on the three-sided relation among the prosecution, the defense, and the court. This triadic relation is significantly different in continental and Anglo-American countries. In the former, the court tends to monopolize the courtroom activity; in the latter, the prosecution and the defense take the largest share of action. As a result, the ideal of the judge as a passive umpire, rather than an active seeker of the truth, is taken as the central ideal of the adversary system (Ploscowe, p. 433). But the focus on triadic relations leaves too much out of account. Both in Europe and in Anglo-American countries, important segments of the criminal process unfold in the absence of the judge and may involve other officials such as the police. Moreover, even if one considers only incourt proceedings, there are often four rather than three actors to consider—crime victims play an increasingly important role. Indeed, many European systems give the victim the rights to be heard as a party and be represented by counsel.
The contrast between Anglo-American and continental criminal procedure is best expressed in two basic notions. The first, underlying the inquisitorial type, regards the criminal process as an official inquiry. The second, underlying the adversary type, regards criminal procedure as a regulated contest between the prosecution and the defense. In discussing other meanings of the adversary system, the image of proceedings as a contest has already been encountered. But the comparative perspective highlights some aspects of this contest that are overlooked by a purely domestic vision.
First, under procedures of the adversary type the prosecution and the defense prepare two independent cases in advance of the trial (often with a view to possibly avoiding trial). Unlike the inquisitorial type, there is no nonpartisan agency preparing a single, or "integrative," case or case file. Problems of maintaining rough equality of the prosecution and the defense can thus arise long before the trial. Pretrial detention, for example, does not fit neatly into the adversary type, because it hampers the defendant in preparing his own independent case. Moreover, the resources and legal powers of investigation of the prosecutor are usually far greater than those of the defense. On the other hand, the exclusionary rule fits in smoothly. If in preparing its case the prosecution breached the law, it should not be permitted to reap advantages from such a "low blow."
Second, various forms of negotiation between the prosecution and the defense are a salient feature of the adversary type. Consider, for example, how easily the practice of plea bargaining fits the "style" of a process based on the notion of contest. It makes little sense to go on with such proceedings if the defendant refuses to oppose the demands of the prosecution. By contrast, in proceedings conceived of as an official inquiry, the defendant need not be asked how he pleads: the trial can go on irrespective of his attitude toward the prosecutorial charges. Inducements to facilitate the task of crime control agencies exist, of course, in both adversary and inquisitorial systems. But the two are characterized by the different loci of such inducements. In the adversary process, both sticks and carrots are used to persuade the defendant not to contest charges, so that the need for trial is obviated. In the inquisitorial process these inducements are used during the interrogation of the defendant: he is urged to reveal information facilitating the task of the officials conducting the inquiry.
So far we have dealt with the conventional position that attributes the same meaning to the words adversary and accusatorial. It has been suggested, however, that comparativists should draw a distinction between the two (Goldstein, p. 1016). Under this approach the adversary process is said to denote only a method of finding facts and deciding legal problems, and is characterized by two sides shaping issues before a relatively neutral judge. The accusatorial system, on the other hand, is a more encompassing concept, which includes the adversary method as its constituent element.
The meaning of this broader concept depends on the contrast with the inquisitorial system, and its non-adversary method of proof and trial. The contrast turns on the divergent attitudes of state officials. In the inquisitorial system, officials are self-propelling and affirmatively obligated to carry out state policies, but in the accusatorial system they step into action only when a controversy arises and they are requested by the participants to respond. Each attitude entails a variety of consequences and choices among procedural forms, the choice of the proper method of finding facts being only one of many. Ultimately, the contrast between the inquisitorial and the accusatorial modes of proceeding involves two polar views about the role of government in society; that is, whether government should be "reactive" or "proactive" (Goldstein, p. 1017).
The idea of linking the characteristics of the Anglo-American criminal process to political ideology is promising. Important features of the Anglo-American criminal process cannot be reduced to the abstract notion of contest, which is so central to the adversary type. Moreover, some features of Anglo-American justice are in conflict with procedures mandated by notions of a fair contest. For example, the right of the defendant to personally defend himself—a right unique to common law—follows from the tenets of the reactive liberal ideology, but it seriously strains notions of a fair contest (Faretta v. California, 422 U.S. 806 (1975)). If more common law characteristics are to be captured in procedural types, broader organizing principles are needed, and the ideology of reactive government provides one such principle. Consequently, it seems sensible to distinguish between the adversary type, which focuses on the contest design, and the accusatorial type, which centers on a political theory.
But even the broader concept of the accusatorial system fails to account for many striking characteristics of the Anglo-American criminal process when the latter is contrasted to continental systems. From the earliest known attempts to describe the peculiar nature of common law justice, the participation of the lay jury was regarded as its hallmark, and lay decision-making as one of its most characteristic elements. The law of evidence, for example, is the product of the interaction of the judge, the jury, and the lawyers (Langbein, p. 306). These features elude the adversary type organized around the notion of a contest; the latter can plainly take place with or without a jury. Nor does the accusatorial system, inspired by the reactive philosophy of government, require jury trials; lay adjudicators can be an arm of a totalitarian as well as of a laissez-faire government. Nevertheless, trial by jury reinforces the characteristic Anglo-American image of the criminal process as a contest of the accused and the state before outside arbiters. Where, as on the Continent, the apparatus of justice is dominated by hierarchically organized civil servants, this conception of the criminal process has little credibility—prosecutors and decision-makers are all too easily traceable to the center of state power. But the contest imagery has far greater plausibility in a procedural system where verdicts are reached by laypersons recruited to serve on the criminal court.
The difficulties involved in expressing the peculiar character of Anglo-American criminal procedure have given rise to increased skepticism as to whether any version of the adversary type can be useful. Those scholars of comparative law who subscribe to the common-denominator approach are clearly justified in their doubts: no single model can be set up to which all Anglo-American criminal procedures conform (Langbein and Weinreb, p. 1551). But even those scholars who are less demanding seem increasingly skeptical. Factors involved in describing the peculiar character of Anglo-American proceedings are too complex and heterogeneous to be captured in a single, internally consistent type of criminal justice. Moreover, as the world's criminal justice systems have become increasingly "hybridized," continental and other non–Anglo-American, "inquisitorial" systems have incorporated many adversary features traditionally seen as defining characteristics of common law systems.
See also Criminal Justice System; Criminal Procedure: Comparative Aspects; International Criminal Courts; International Criminal Justice Standards; Prosecution: Comparative Aspects; Trial, Criminal.
Esmein, AdhÉmar. A History of Continental Criminal Procedure, with Special Reference to France. Translated by John Simpson. Boston: Little, Brown, 1913.
Frase, Richard S. "Comparative Criminal Justice Policy, in Theory and in Practice." In Comparative Criminal Justice Systems: From Diversity to Rapprochement. Vol. 17 in Nouvelles Études Pénales. Toulouse, France: Eres, 1998. Pages 109–121.
Fuller, Lon L. The Adversary System: Talks on American Law. Edited by Harold J. Berman. New York: Vintage Books, 1961.
Goodpaster, Gary. "On the Theory of American Adversary Criminal Trial." Journal of Criminal Law & Criminology 78 (1987): 118–152.
Goldstein, Abraham. "Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure." Stanford Law Review 26 (1974): 1009–1025.
Hermann, Joachim. "Various Models of Criminal Proceedings." South African Journal of Criminal Law and Criminology 2, no. 1 (1978): 3–19.
Landsman, Stephen. Readings on Adversarial Justice: The American Approach to Adjudication. St. Paul, Minn.: West Publishing Co., 1988.
Langbein, John H. "The Criminal Trial before the Lawyers." University of Chicago Law Review 45 (1978): 263–316.
——, and Weinreb, Lloyd L. "Continental Criminal Procedure: Myth and Reality." Yale Law Journal 87 (1978): 1549–1568.
Ploscowe, Morris. "The Development of Present-day Criminal Procedures in Europe and America." Harvard Law Review 48 (1935): 433–473.
Pound, Roscoe. "The Causes of Popular Dissatisfaction with the Administration of Justice." In Report of the Twenty-ninth Annual Meeting of the American Bar Association. Philadelphia: Dando, 1906. Pages 395–408.
Schlesinger, Rudolf. "Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience."Buffalo Law Review 26 (1976): 361–385.
Sheppard, Blair H., and Vidmar, Neil. "Adversary Pretrial Procedures and Testimonial Evidence: Effects of Lawyer's Role and Machiavellianism." Journal of Personality and Social Psychology 39 (1980): 320–332.
Thibaut, John W., and Walker, Laurens. Procedural Justice: A Psychological Analysis. Hillsdale, N. J.: Laurence Erlbaum Associates, 1975.
——. "A Theory of Procedure." California Law Review 66 (1978): 541–566.
Van Kessel, Gordon. "Adversary Excesses in American Criminal Trials." Notre Dame Law Review 67 (1992): 403–549.
Weinreb, Lloyd L. Denial of Justice. New York: Macmillan, 1977.
Faretta v. California, 422 U.S. 806 (1975).
Malloy v. Hogan, 378 U.S. 1, 7 (1964).
Miranda v. Arizona, 384 U.S. 436, 460 (1966).
The Adversary System: Who Wins? Who Loses?
The legal system in the United States is known as an adversary system. In this system, the parties to a controversy develop and present their arguments, gather and submit evidence, call and question witnesses, and, within the confines of certain rules, control the process. The fact finder, usually a judge or jury, remains neutral and passive throughout the proceeding.
Critics pose some disturbing questions about the adversary system: Is justice served by a process that is more concerned with resolving controversies than with finding the ultimate truth? Is it possible for people with limited resources to enjoy the same access to legal services as do wealthy people? Does a system that puts a premium on winning encourage chicanery, manipulation, and deception?
The 1995 trial of o. j. simpson, an actor, sportscaster, and professional football player accused of murdering his former wife and her friend, cast unprecedented scrutiny on the criminal justice system, and left many people wondering whether truth or justice play any role in its operation. Each day for over a year, the trial was televised in the homes of millions of people, most of whom had never seen the inside of a courtroom. They were fascinated and repelled by prosecutors and defense attorneys who argued relentlessly about seemingly trivial points. Even more disturbing to some viewers was the acrimonious name-calling that went on between the two sides as each attempted to discredit the other's evidence and witnesses. Likewise, the 1994 trials of Eric and Lyle Menendez, wealthy brothers who admitted killing their parents but whose first trials ended in hung juries, left many Americans bewildered and angry at a system that seemed unable to convict confessed murderers. Defense attorneys are quick to point out that the Constitution guarantees that the accused is innocent unless found guilty in a court of law, and it is impossible to protect the innocent without occasionally protecting the guilty. Lawyers are obligated to challenge the evidence against their clients, even if that means impugning the police or attacking a victim's or witness's character. It is their job to win an acquittal by whatever legal and ethical means within their power.
Disparaging the legal system has become something of a national pastime. Indeed, criticism of the system comes from all corners of the landscape, including the top of the system itself. The late Chief Justice warren e. burger was outspoken in his lambasting of the system and of lawyers, asserting that they are too numerous and too zealous, that they file too many frivolous lawsuits and motions, and that there is general failure within the system to encourage out-of-court settlements. Burger was a vocal proponent of alternative dispute resolution (ADR). He advocated the use of nonlitigious solutions such as mediation or arbitration as a means of reducing court congestion. Supporters of the adversary system point out that it is not clear that the savings reaped from ADR always outweigh the costs. In situations where the parties are not at equal bargaining strength, questions arise as to whether settlements are extracted through duress. Some attorneys and litigants have noted that ADR is often as adversarial in nature as litigation, with evidence presented and slanted by counsel. They further complain that there is no guarantee that an arbitrator will be informed about the subject matter of the dispute, and therefore no guarantee of a fair outcome.
Without doubt, during the 1980s and 1990s, the United States experienced tremendous growth in the number of civil suits filed. The results were clogged courts, trial delays, and increased legal costs. However, the experts disagree on how to solve these problems. Critics of the system clamor for reforms to address what they perceive as its deficiencies, whereas many commentators, particularly those within the legal profession, feel that the system, although imperfect, is actually working the way it is designed to work and should not be altered.
One criticism of the adversary system is that it is slow and cumbersome. The judge, acting as a neutral fact finder, can do little to accelerate a trial, and procedural and evidentiary rules further slow the process. Likewise, the wide availability of appellate review means that a final determination can take years. However, at least one study has shown that in courts where adversarial trials were discouraged and settlements actively encouraged, litigants still encountered substantial delays in resolution. And supporters of the adversary system maintain that a methodical, albeit cumbersome, system is necessary for protection of individual rights.
It is fair to challenge the ethics of a legal system that places a higher value on winning than on truth seeking. At least one commentator has characterized the system as one in which lawyers spend more time avoiding truth than seeking it. But proponents argue that the vigorous clash of opposing viewpoints eventually yields the truth, and that allowing the sides to fight it out under specific rules that guarantee fair play allows the truth to surface on its own.
Many other complaints have been leveled against the United States' adversary system. Some feel that because the parties control the litigation, they are encouraged to present only the evidence that is favorable to them and to suppress evidence that is unfavorable. Criticism of attorneys abounds. Some feel that the lawyers' ethics code encourages zealous representation at the expense of truth, making attorneys, in the words of Burger, "hired guns" (In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 ). Others complain that lawyers file too many frivolous lawsuits and have become too dominant in the adversary process. Some even say that the rules of evidence, designed to guarantee fairness to all parties, actually work against fairness by preventing important information from being presented to the fact finder.
Defenders of the adversary system are quick to refute each criticism lobbed at it. They contend that it is necessary for the parties to control the litigation in order to preserve the neutrality of the judge and jury. They point out that lawyers, although as susceptible to corruption as any other group, are governed by a code of ethical conduct that, when enforced, deals effectively with instances of overreaching. And, while conceding that evidentiary rules may be subject to manipulation, they vigorously maintain that such rules are the only means by which to ensure fairness and prevent judicial abuse.
The criticism of the U.S. legal system that may be most difficult to refute has to do with accessibility. It cannot be plausibly argued that an average criminal defendant has the same access to legal representation as O. J. Simpson or the wealthy Menendez brothers, nor can it be argued that an injured plaintiff in a civil suit is in an equal bargaining position with a huge corporation. Yet, supporters of the adversary system counter that unequal access to legal services is the result of economic and social conditions, not the structure of the legal system, and that changing the way legal services are delivered would do nothing to address the root causes of the disparity. They also point out that the much criticized contingency fee arrangement, by which an attorney is paid a percentage of the award her or his client receives, opens the courts to members of the population who could not otherwise afford legal representation.
Most legal experts agree that, in the long run, the adversary system results in societal benefits that outweigh its inherent shortcomings. By allowing all sides of a controversy to be heard, the system protects against abuse of power, and forces those with the most at stake to focus on the issues in dispute. At its worst, it can be manipulated to the benefit of those least deserving, but at its best, it offers every injured party a forum for relief, sometimes against powerful odds. No doubt, the arguments about whether and how to change the system will go on into the twenty-first century. As a system that has evolved over three hundred years, it probably will undergo some changes. But the basic values at its heart, such as presumption of innocence, the right to trial by jury, and protection of individual rights, appear to be firmly cemented as the cornerstones of U.S. jurisprudence.
The scheme of Americanjurisprudencewherein a judge or jury renders a decision in a controversy between or among parties who assert contradictory positions during a judicial examination such as a trial, hearing, or other adjudication.
U.S. courtrooms have often been compared to battlefields or playing fields. The adversary system by which legal disputes are settled in the United States promotes the idea that legal controversies are battles or contests to be fought and won using all available resources.
The contemporary Anglo-American adversary system has gradually evolved, over several hundred years. Early English jury trials were unstructured proceedings in which the judge might act as inquisitor, or even prosecutor, as well as fact finder. Criminal defendants were not allowed to have counsel, to call witnesses, to conduct cross-examination, or to offer affirmative defenses. All types of evidence were allowed, and juries, although supposedly neutral and passive, were actually highly influenced by the judge's remarks and instructions. In fact, before 1670, jurors could be fined or jailed for refusing to follow a judge's directions.
The late 1600s saw the advent of a more modern adversarial system in England and its American colonies. Juries took a more neutral stance, and appellate review, previously unavailable, became possible in some cases. By the eighteenth century, juries assumed an even more autonomous position as they began functioning as a restraint on governmental and judicial abuse and corruption. The Framers of the Constitution recognized the importance of the jury trial in a free society by specifically establishing it in the sixth amendment as a right in criminal prosecutions. The Eight Amendment also established the right to a jury in noncriminal cases:"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."
The independent judiciary was somewhat slower in developing. Before the 1800s, English judges were still biased by their ties with the Crown, and U.S. judges were often politically partisan. U.S. Supreme Court Chief Justice john marshall, who served from 1801 to 1835, established the preeminence and independence of the high court with his opinion in marburyv. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). Marbury established "the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution" (Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5). By the early 1800s, attorneys had risen to prominence as advocates and presenters of evidence. Procedural and evidentiary rules were developed, and they turned the focus of litigation away from arguments on minute points of law and toward the resolution of disputes. The basic parameters of the United States' modern legal system had been established.
In the Anglo-American adversary system, the parties to a dispute, or their advocates, square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the American Revolution, the modern adversary system reflects the conviction that everyone is entitled to a day in court before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and to present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict.
In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence presented by the parties with the objective of resolving the dispute between them. The fact finder must remain uninvolved in the presentation of arguments so as to avoid reaching a premature decision.
The Anglo-American requirement of an impartial and passive fact finder contrasts with the requirements of other legal systems. For example, most European countries employ the inquisitorial system, in which a judge investigates the facts, interviews witnesses, and renders a decision. Juries are not favored in an inquisitorial court, and the disputants are minimally involved in the fact-finding process. The main emphasis in a European court is the search for truth, whereas in an Anglo-American courtroom, truth is ancillary to the goal of reaching the fairest resolution of the dispute. It has been suggested that the inquisitorial system, with its goal of finding the truth, is a more just and equitable legal system. However, proponents of the adversary system maintain that the truth is most likely to emerge after all sides of a controversy are vigorously presented. They also point out that the inquisitorial system has its own deficiencies, including abuse and corruption. European judges must assume all roles in a trial, including those of fact finder, evidence gatherer, interrogator, and decision maker. Because of these sometimes conflicting roles, European judges might tend to prejudge a case in an effort to organize and dispose of it. Inquisitorial courts are far less sensitive to individual rights than are adversarial courts, and inquisitorial judges, who are government bureaucrats (rather than part of an independent judicial branch), might identify more with the government than with the parties. Critics of the inquisitorial system argue that it provides little, if any, check on government excess and that invites corruption, bribery, and abuse of power.
The parties to an Anglo-American lawsuit are responsible for gathering and producing all of the evidence in the case. This challenge forces them to develop their arguments and to present their most compelling evidence, and it also preserves the neutrality and passivity of the fact finder. The adversary process is governed by strict rules of evidence and procedure that allow both sides equal opportunity to argue their cases. These rules also help to ensure that the decision is based solely on the evidence presented. The structure of this legal system naturally encourages zealous advocacy by lawyers on behalf of their clients, but the code of ethics governing the conduct of lawyers is designed to curb the tendency to attempt to win by any means.
The adversary system has staunch defenders as well as severe critics. The image of the courtroom as a battleground or playing field where contestants vie for victory is evident in the news media's preoccupation with who is "winning" or "losing" or "scoring points" in such highly visible cases as the 1995 trial of o. j. simpson, an actor, sportscaster, and former professional football player who was tried for killing his former wife, Nicole Brown Simpson, and her friend Ronald Goldman.
The emphasis on "winning at all costs" without commensurate concern for truth-seeking dismays some U.S. citizens, and a growing number are demanding reforms in the legal system. During the 1980s and 1990s, the use of alternative forms of dispute resolution such as mediation and arbitration grew dramatically. However, defenders of the adversary system note that these alternatives have been used all along, in the form of settlement conferences, minitrials, and summary jury trials, and that the vast majority of lawsuits are already settled before the parties ever appear in court.
When a dispute cannot be resolved without a trial, the adversary system is the established method of adjudication in the United States. Indeed, the organized bar remains committed to the notion that vigorous advocacy by both sides of a legal controversy ultimately leads the judge or jury to the facts needed for a fair resolution and that it is the process that is best calculated to elicit the truth and to protect individual rights. Although many concede that the adversary system is imperfect and that it may be subject to abuse and manipulation, the majority still believe that, by giving all parties and their advocates the opportunity to present evidence and arguments before an impartial judge, it promotes a free and pluralistic society with the best available means of settling disputes.
Doyle, Stephen, and Roger Haydock. 1991. Without the Punches: Resolving Disputes Without Litigation. Minneapolis: Equilaw.
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Kagan, Robert A. 2001. Adversarial Legalism: The American Way of Law. Cambridge, Mass.: Harvard Univ. Press.
Landsman, Stephan. 1988. Readings on Adversarial Justice: The American Approach to Adjudication. St. Paul, Minn.: West.
Landsman, Stephan. 1984. The Adversary System: A Description and Defense. Washington, D.C.: American Institute for Public Policy Research.
Olson, Walter K. 1991. The Litigation Explosion. New York: Truman Talley Books-Dutton.