The main aim of the Justice System is to obtain the truth and enforce laws, statutes and legislation created by the government. However some would argue that some legal procedures in some countries are not as efficient as others at find the truth of what actually happened. The two systems which are constantly being analysed is the Adversarial and the Inquisitorial procedure which both have supporters and critiques, advantages and disadvantages. Therefore, the main aim of the essay will be to demonstrate how legal systems available in some countries are sometimes insufficient in finding the truth of cases and subsequently leading to miscarriage of justice. The essay will do this by focusing on showing a brief history on the development of the current British legal system. Secondly, comparing and contrasting the adversarial and inquisitorial system. Additionally, showing the advantages and disadvantages of these procedures by focusing on four main areas such as, the legal representations, the police, the judges and lastly the defendant. Finally, the paper will conclude by answering the question of whether the adversarial nature of trials provides an effective means of getting to the truth of what happened.
The legal system during the medieval era was not as sophisticated or as concerned with human rights as the much as the justice system is today. Additionally, Hosteller (2008, p. 9) reports that treason and felony cases of those accused were not permitted to have legal council present to support them. He also goes on to state that during this period many trials were, trials by ordeal where by a person was likely to be kill or tortured in a brutal fashion such a trial by fire, water, or battle. However, these forms of the ...
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The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
The conviction of guilty offenders when adhering to the guidelines of the NSW criminal trial process is not difficult based on the presumption of innocence. However, due to features of the criminal trial process, established by the adversarial system of trial, cases can often involve copious amounts of time and money, particularly evident in the case of R vs Rogerson and McNamara where factors such as time and money are demonstrated to be in excess. In addition, characteristics of the adversarial system such as plea bargaining has the power to hinder convictions due to the accused having the authority to hire experienced and expensive lawyers to argue their case, hence maintaining their innocence.
Robinson trial; (2) prejustice and its effects on the processes of the law and society; (3)
The judicial system we know today has changed in many ways. One of the ways this system changed is how they reach a verdict, In the modern day long investigation have to take place and reliable evidence has to be shown to the court so that there is less chance that the accused could be misjudged unlike the medieval times were it was common that people were misjudged. The medieval period taught us that we have to be sure of which person is guilty and innocent. Unlike believing one Man’s word like the medieval
“ ….Judgments, right or wrong. This concern with concepts such as finality, jurisdiction, and the balance of powers may sound technical, lawyerly, and highly abstract. But so is the criminal justice system….Law must provide simple answers: innocence or guilt, freedom or imprisonment, life or death.” (Baude, 21).
In society’s minds, they would like to believe that the judicial system is unflawed and is able to function without any mistakes. On paper, the judicial system seems to be in perfect working order; however, in reality, it is anything but perfect. Cases are misjudged and mistried far too often for the system to be dubbed “fair” and “just.” An example of a mistrial occurs in The Stranger, during Meursault’s trial for murder. By all means, Meursault is undoubtedly guilty of killing a man, but nevertheless his trial was still unfair. This occurs because the judicial system fails to correctly convict Meursault of manslaughter rather than murder. According to the events in The Stranger, Meursault should have been convicted of manslaughter; however, he is on trial for murder because of the unjustness of the judicial system and the assumed presence of malice.
The criminal trial process is able to reflect the moral and ethical standards of society to a great extent. For the law to be effective, the criminal trial process must reflect what is accepted by society to be a breach of moral and ethical conduct and the extent to which protections are granted to the victims, the offenders and the community. For these reasons, the criminal trial process is effectively able to achieve this in the areas of the adversary system, the system of appeals, legal aid and the jury system.
The contradictory outcomes of cases presenting very similar facts to the court leads some jurists to cry out for reform and to denounce the defects in the present common law rules. Some, are supportive of the implementation of a statutory obligation to make reparation for wrongfully caused mental
Common law jurisdictions are said to be mainly associated with what is known as an adversarial system whereas civil law systems operate under inquisitorial procedures. The inquisitorial system is generally defined as a system that aims to get to the truth through extensive investigation and examination of all evidence. The adversarial procedure aims to find the truth through the open competition between the prosecution and the defence to make the most compelling argument for their case. Critics of the adversarial approach dispute that the goal of winning often overshadows the search for truth. Legal circles thrive upon debates surrounding the strengths and weaknesses of both systems. Some argue that the reliance of lawyers for the presentation of evidence a characteristic of the adversarial system taints the process and allows for faults in the search for truth. Professor Langebeins aforementioned statement denotes the perception that the inquisitorial procedure is a better system in place for truth finding in criminal law proceedings. Neither system is inherently superior. In fact there are many shared features and many countries integrate features of both procedures, having experienced a level of convergence over the last 80 years which
In today's society, personal responsibilities are held accountable only through explicit knowledge of an action's consequences. Without consequences, no individual can be held liable for his or her actions. As teenagers commit increasingly egregious crimes, the media shifts attention away from the actions of these teenagers and focuses on the seemingly severe punishments they are entitled to. Teenagers accused of violent crimes should be tried and sentenced justly, regardless of age, to ensure the law's equality before its citizens, to educate juveniles regarding the potential severity of their actions' consequences, and to prevent future acts of offense from occurring in society.
There were only a few things allowed in prison and writing books was one of them. Morte D’ Artur was written in prison (Kinsinella). Most of the time a trial would be used if there was no hard evidence against the incriminated. There were three types of ordeals that a person could be put through. The fire ordeal would be where the accused would have to walk a distance of about nine feet while holding something that was scolding hot such as a rod (Duhaime). After they walked the distance their hand would be wrapped in bandages. Then the person that was wrapped in bandages would be told to meet back after three days in front of the court if there were any signs of healing then that person was looked at as innocent. The ordeal of water was done in two different ways cold and hot. The cold way was where the accused had their hands and feet tied up and they were put into a body of water, if they floated they were innocent if they drowned they were guilty. The hot way was very similar to the fire ordeal, where the accused had to put hands in boiling water to grab a stone and after three days if healed they were innocent (Duhaime). The reason for the two types of ordeals being involved as much healing as it did because it was believed that the God would intervene and help the innocent and let the guilty perish. The third type of ordeal is combat and this would be used if two parties were accused with no witnesses the two parties would fight, most of the time it was to the death, the winners were said to be innocent (Duhaime). Most of the time the people that had enough money would hire champions (Alchin). In the early 1300’s the Medieval customs of trial by ordeals would be replaced with jury because people started to realize it was too hard to convict someone under the
“Witness for the Prosecution” superbly demonstrated a realist view of the operating procedures in a courtroom. The actors within the courtroom were easy to identify, and the steps transitioned smoothly from the arrest to the reading of the verdict. The murder trial of Leonard Vole provided realistic insight into how laws on the books are used in courtroom proceedings. With the inferior elements noted, the superior element of the court system in “Witness for the Prosecution” was the use of the adversary system. Both sides of the adversary system were flawlessly protrayed when the prosecution and defense squared off in the courtroom.
The Civil Procedure Rules recognised in Wales and England imposes a positive duty on the court to encourage parties to use an alternative dispute resolution (ADR) procedures if the court considers it appropriate, from the forgoing it could be inferred that achieving unbiased and objective dispute resolution is no longer the exclusive claim of the adversarial legal process as hitherto claimed by liberal societies. In addition, exact practices of adversarial legal system scarcely exist, since the daily life of court now involves routine departures from its original fundamental ideals. Nonetheless, growing evidence depict that mediated outcomes are more likely to be complied with than court decrees contrary to the position of pro adversarial advocates.
Individual responsibility provides a just and effective base that current Australian legal system. This following essay will analyse how the criminal justice system rests upon the idea of individualised responsibility with reference to the main two core principles that make person criminal liable, these being the Latin phrases Mens Rea “guilty mind and atus reas “Guilty act”. These two core principles will then be used to critically analyse the current model of individual responsibility to support that it is an effective and fair system for Australian criminal law. Finally this essay will conclude by outlining another alternative to the current model of individualised responsibility, which theory of scientific critique.
Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.