Street Law. A Course in Practical Law The Adversary System

The trial system in the United States is an adversary process. This means it is a contest between opposing sides. The theory of this process is that the trier of fact (judge or jury) will be able to determine the truth if the opposing parties present their best arguments and show the weakness in the other side’s case.

If a criminal case goes to trial, the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. In a civil case the burden is on the plaintiff to prove his of her case by a preponderance of the evidence (greater weight of evidence). The standard of proof is more difficult in a criminal case. This is because of a belief that more evidence should be required to take away a person’s freedom.

The adversary process is not the only method for handling legal disputes. Some countries, especially in Europe, have what is called the inquisitional system, in which the judge is more active in questioning witness and controlling the court process, including the gathering and presentation of evidence. This differs from the adversary process, in which these matters are left to the judge or jury based on the arguments and evidence presented to them.

The adversary process is sometimes criticized as not providing the best setting for the discovery of truth with respect to the facts of a specific case. Critics compare the adversary process to a battle in which lawyers act as enemies, making every effort not to present all the evidence. In this view the goal of trial is “victory, not truth or justice”.

On the other hand, the adversary process has long served as the cornerstone of the American legal system. Most attorneys believe that approaching the same set of facts from totally different perspectives will uncover more truth than would other methods.

Problem 1

1. Do you think the adversary system is the best method for solving disputes? Why or why not?

2. Indicate whether you agree or disagree with the following statement: “It is better that ten guilty persons go free than one innocent person suffer conviction”. Explain your answer.

3. In a criminal case, should a lawyer defend a client who he or she knows is guilty? Discuss.

Judges and Juries

Judges and juries are essential parts of our legal system. The judge presides over the trial and has the duty of protecting the rights of those involved. Judges also make sure that attorney follow the rules of evidence and trial procedure. In nonjury trials the judge has the function of determining the facts of the case and rendering a judgment. In jury trials, the judge is required to instruct the jury as to the law involved in the case. Finally, in criminal trials in most states, judges are required to sentence individuals convicted of committing a crime.

The right to trial by jury is guaranteed by the Sixth and Seventh Amendments to the Constitution. This right applies in both federal and state courts. However, a jury is not required in every case. Juries are not used as often as one might think. In civil cases, either the plaintiff or the defendant may request a jury trial. In criminal cases, the defendant decides whether there will be a jury. Many civil cases result in out-of-court settlements or trials by a judge. Most criminal cases are never brought to trial. Instead, they are disposed of by plea bargaining.

If a jury trial is requested, a jury is selected and charged with the task of determining the facts and applying the law in the particular case. To serve on a jury, you must be a citizen of the United States, at least 18 years of age, and a resident of the state. Persons commonly excused from jury duty include clergy, attorneys, physicians, police officers, fire fighters, convicted felons, and persons who are physically or mentally ill.

Once selected, jurors are assigned to specific cases after being screened through a process known as voir dire examination. In this process, opposing lawyers question each prospective juror to discover any prejudices or preconceived opinions concerning the case. After questioning each juror, the opposing attorneys may request the removal of any juror who does not appear capable of rendering a fair and impartial verdict. This is called removal for cause. In addition, each attorney is allowed a limited number of peremptory challenges. This means they can have prospective jurors removed without stating a cause.

Problem 2

1. What reasons can you give for the exclusion from jury duty of attorneys, physicians, police officers, and convicted felons? Can you think of any other group that should be exempt from jury duty?

2. If your were a defense attorney questioning jurors at the voir dire in murder trial, what questions would your ask to determine whether the jurors could render a fair and impartial verdict?

3. Can you think of any reasons why an attorney might use a peremptory challenge?