The system of criminal procedure primarily utilized in the United States is the adversarial system. The term “adversary” is easily interpreted to mean opposition. Our present criminal procedure pits two sides against each other to present their respective evidence and issues surrounding a criminal act. This paper will address the adversarial system and its expressed use in criminal court proceedings in the United States. Among the questions this paper will take into consideration are: Is the adversarial system the best way to achieve justice in the criminal courts of the United States; what those limitations are; how those limitations deliver justice; alternatives to the adversarial system; and the advantages or disadvantages of those alternative.
When confronted with the issue of the best method to achieving justice in criminal court proceedings, one must understand what the adversarial system entails.
There are two major criminal procedures – the adversarial and the inquisitorial systems. The adversarial system is associated with common law tradition while the inquisitorial system deals with civil law tradition (www.majon.com). Criminal procedures under the adversarial system can best be viewed as two opponents (or adversaries), refereed by a judge. Dr. Frank Schmallger defines the adversarial system as the “two-sided structure under which American criminal trial courts operate that pits the prosecution against the defense” (Schmallger, 2002, p. 739). He further explains that “in theory, justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one” (Schmallger, 2002, p. 739). Participants in this type of criminal proceedings “are advocates for the state (the prosecution or the district attorney) and for the defendant (defense counsel, public defender, and so on)” (Schmallger, 2002, p. 379). The key, according to Dr. Schmallger, to the adversarial system is that “the greatest number of just resolutions in criminal trials will occur when both sides are allowed to argue their cases effectively and vociferously before a fair and impartial jury” (Schmallger, 2002, p. 379). Since the adversarial system is based on an advocate model, it is clear “that it is not the job of the defense attorney or the prosecution to determine the guilt of any defendant” (Schmallger, 2002, p. 379). With this premise, one can easily be brought to the conclusion that advocates of each side of an allegation, arguing their respective sides before an impartial panel or person, could be conceived as the best way to achieve justice in criminal courts. However, when one sees this system as a just method for establishing culpability in criminal conduct, they must also be cognizant of the limitations of such a system.
Limits and Justice within the Adversarial System
When answering the question, what are the limits of the adversarial system, there are a few answers. “The primary purpose of an adversary system is to prevent private justice by retribution.” (Www. Irc. Justice.gov) The goal of the system is to ensure that there is procedural fairness within the system, which balances the rights of the individuals and society as a whole.
It is said that traditionally the jury has been known as the linchpin of the system. The reason for this is that in the majority of cases judges maintain an active role, while the jurors maintain a passive role. (word.iq.com) This is especially important for those defendants who are given over-worked and under-skilled attorneys, of public defenders.
The judge maintains an important role due to the fact that the system relies on the skill of the advocates, which represent the defendants. Within the system the advocates must ascertain the truth to promote justice. The judge has to power to decide what is trustworthy and irrelevant to the case to proceed forward with justice.
Limits of the Adversarial system and what justice means
Within the adversarial system limits are clearly defined. Many of the cases within the system are plea-bargained. This however can be seen as a controversial matter because it is thought that a miscarriage of justice may be occurring when it does not make it all the way to trial proceedings.
When asked what justice looks like, it may be described as the following: When a defendant admits to a crime, the case proceeds to sentencing, as opposed to dragging the case out beyond reason. Judges are more impartial and play a non-biased role within the courts to ensure that there is fair play within due process and fundamental justice. (Nationmaster.com)
Alternatives to the Adversarial System
The United States legal system in based on the adversarial process in which one side wins and the other loses. This process has changed from a search for justice to a stage where attorneys grandstand in front of juries. One of the more notorious examples of this behavior is the O.J. Simpson case where Johnnie Cochran essentially put the police on trial. It continues today with Mark Geragos cracking jokes in order to form a bond with the jury.
There are alternatives to this system that were pioneered in the civil arena. In North Carolina for example there is a mediation system for civil cases. (Alternatives to the court system). It provides for a third party to assist the litigants in settling their dispute. The process is mandatory before going to trial in a superior court but does not require the parties to reach an agreement.
One alternative that exists in criminal cases is that of participatory justice where minor complaints are dealt with in a form of binding arbitration. (Schmallger, 2002, p 278 – 280). These include gambling, drug use and other offensive behavior. This model and that of restorative justice stress a community approach rather than an adversarial style.
The member countries of the British Commonwealth are far more active in promoting alternatives to the adversarial system than is the United States. The primary motivation behind this is to preclude the delaying tactics used by some attorneys. Again the civil arena is ahead of the criminal. (Alternatives to court). Alternative Dispute Resolution is heavily promoted in the United Kingdom with litigants being urged to consider it and asked why if they choose to decline.
Australia and New Zealand have been more open in looking to alternative systems. In Australia the Victorian Law Reform Commission actively considered an inquisitorial system where a judge would ask questions of the victim and investigate the facts on his or her own. (Porter, 2003). This was in response to the myriad of rules that decide what evidence can be heard. Ultimately the idea was discarded due to research showing that it did not benefit victims.
The Law Commission in New Zealand was very open in its discussion of the justice system. They have raised serious doubts as to whether or not the goal of equal justice was being met. (Flawed justice needs fix 2002). One of the concerns was that the process has become so complicated and expensive that virtually no one can afford to defend himself. Furthermore the time factor has been noted where attorneys debate whether a crime occurred when that is beyond question. One approach that has been suggested is early disclosure of evidence, which would be closer to the French system that emphasizes a search for the truth.
Advantages and Disadvantages of the Adversarial System
The varieties of alternative systems that are currently being implemented and experimented with come with many advantages. There are some down sides to the alternative systems as well. Many of these programs are new and will need some time to operate before all of the problems are completely worked through.
The neutral third party mediation that is currently being used in North Carolina offers many advantages over the adversarial system. From the very beginning it is less formal and time consuming because it is run by a private organization rather that the government. The process involves a mediation that evaluates the circumstances and attempts to come to a fair outcome that benefits all parties that are involved. The outcome is not necessarily a one-sided judgment, so there is not a winner or a loser. Mediation is an excellent process for working through civil matters such as child custody disputes. Mediation is viewed as more desirable than traditional litigation to resolve custody disputes. The “win-lose” approach of the adversarial system often does not promote the best interests of the child. (www.aoc.state.nc.us). The private mediators have graduate level degrees in psychology and social work. They have an advantage over many judges because of their training in their specific field. Child custody involves a lifetime of cooperation. As people change over time they can return to the mediator to work through changes that benefit all parties. This can be done in a much quicker manner than in an adversarial court system. Another advantage to private mediation is a substantial savings to the individuals involved because they do not necessarily need a lawyer to represent them. The taxpayer also benefits because the court is free to hear more serious cases.
The participatory justice system offers many advantages as well. Along with alleviating some of the load placed on the court system it allows for a speedier resolution. Many of these types of dispute-resolution programs involve binding arbitration, which require the participants to follow what the mediator prescribes. A mediation without binding arbitration would be a disadvantage because the mediator is powerless to enforce the decision if anyone does not like it.
One successful program that has been created out of the participatory justice principle is the drug court. The program began in 1989 in Miami and diverted many non-violent drug users away from the traditional court system that often involved imprisonment as a result. (Schmallger, 2002, p 278 – 280). The program includes counseling, education, meetings, monitoring and drug testing. Most of these programs are year or more in length. If the subject successfully completes the program the possession charge is dismissed. The advantages to society is that the user gets their problem under control and does not fall in revolving door of the criminal justice system by continuing to be arrested for the same crime in the future.
There are many advantages and disadvantages to these alternative programs. The advantages include lowered costs, outcomes that attempt to benefit everyone, speed, and a lessened burden on the current court system. Disadvantages to the systems included non-binding results in some cases and because of the newness of the programs it will take awhile to see if they will be an effective alternative to the adversarial system.