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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 prooftaking. 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’’ (Damaska, 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 AngloAmerican 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 AngloAmerican 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.
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