What is the Adversary system?

The Adversary system of trial refers to a system where two opposing parties prepare and present their case, in accordance with strict rules of evidence and procedure, before an independent and impartial adjudicator.

The adversary system of trial evolved in England and was inherited by Australia, from the British, upon colonisation. Other countries that use the adversary system include most of the United Kingdom, Canada, India, Hong Kong, Pakistan, South Africa, New Zealand and the United States of America. 

Some key features include:

• Parties are in control of preparing and presenting their case according to strict rules of evidence and procedure.
• An independent and impartial adjudicator presides over the case and ensures both parties follow the strict rules of evidence and procedure.
• Strict rules of evidence and procedure to ensure the trial is fair and unbiased, and that each party has an equal opportunity to present their case.

Strengths:

• Being in control of the preparation and presentation of their case should empower parties to seek the best possible evidence and strongest arguments to win their case and expose the truth.
• Parties may be more likely to feel sense of satisfaction with the trial process.
• Having each party responsible for preparing and presenting their case is cost effective for the legal system.

The adversary system: The role of the parties

Weaknesses:

• In an attempt to win their case, parties may deliberately omit unfavourable evidence.
• Parties are responsible for the preparation and presentation of their case, so in order for the case to operate effectively, both parties should be equally represented.
• Having parties engage in a battle to win the case can increase the friction and animosity between them.

The existence of an independent and impartial judge who enforces the strict rules to ensure each party has an equal opportunity to present their case obviously assists the achievement of a fair and unbiased hearing and trial. For example, the judge remains independent and does not assist either party with the preparation and presentation of their case, so neither party achieves an advantage over the other. 

Adversary system: The role of the judge

• The role of the judge: in the adversary system, the judge ensures the strict rules of evidence and procedure are followed throughout the trial and determines the questions of law. Whereas the inquisitorial system the judge controls the trial process and plays a significant role.
• The rules of evidence and procedure in the adversary system: In the adversary system, strict rules of evidence and procedure ensure each party has an equal opportunity to exhibit their case.

Comparing the adversary system with the Inquisitorial system.

Whereas, in the inquisitorial system, no strict rules of evidence exist, allowing a greater range of evidence to be presented to the court and judges.

Burden of proof: The burden of proof rests with the party initiating the action and making the allegations, in the adversary system, moreover, in the inquisitorial system while the burden of proof differs between different countries, generally the burden of proof is not exclusively on either party, as it is the responsibility of the judge to seek the evidence, establish the facts and ascertain the truth.