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In the Adversarial System the courtroom is compared to a battlefield with the state as the prosecution and the accused and his lawyer as the defending party each praying that the court will believe their side of the controversy. In this system, the state, represented by the state prosecutor, leads the prosecution of the case. The state prosecutor seeks to prove that the accused is guilty of the crime beyond reasonable doubt. The accused on the other hand does not need to prove his innocence since he is already entitled to a constitutional presumption of innocence. Both parties are given their respective opportunity to present pieces of evidence and to present relevant laws so as to persuade the neutral judge.
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The adversarial system offers the greater opportunity for the litigants to establish their own case without under interference by any other party. If the prosecution wins that is because they were able to rebut the constitutional presumption of innocence and that they were able to adduce proof that the accused is indeed guilty of the crime charged. On the other hand, if the case against the defendant is dismissed then that is because either the accused is innocent of the crime charged or that the prosecution’s evidence was weak and that they were not able to prove rebut the constitutional presumption of innocence. Either way, the determination of truth is mainly in the hands of the disputing parties.
In the adversarial system, the theory is that no party has the upper hand. This means that though the injured party has the entire machinery of the state on his hand to help him in the prosecution of the accused, the accused however has the constitutional presumption of innocence. In the beginning, he does not really have to do anything because of this presumption since the burden of proof is upon the prosecution. It is only when in the course of the trial, the prosecution has successfully overcome this constitutional presumption that the burden of proof shifts to the defendant. When this happens he must adduce evidence to prove his claim so that the burden of proof will once against shift to the prosecution.
The equality in the adversarial system between the disputing parties is manifested in the fact that the court frowns upon any surprise tactic during trial. The court does not allow any surprises that may be utilized by one of the parties to throw the other party off guard. It is because of this reason that the methods of discovery procedure are available to both parties. The discovery procedure aims to encourage the parties to lay their cards on the table so that no undue advantage is given to either party.
The eyewitness testimony is one of the most frequently used evidence during trial. Though it is one of the most unreliable, juror and judges however rely on them for their decisions.
The unreliability of eyewitness testimony has been the subject of research by many scientists, among them Gary Wells. Citing Scheck (2000), Wells states that more than 100 people who were convicted prior to the advent of forensic DNA have now been exonerated by DNA tests, and more than 75% of these people were victims of mistaken eyewitness identification.
The adversarial system seeks to reduce if not totally eliminate the possibility that an accused may be convicted because of the errors or biases of a witness in view of the order in the presentation of evidence wherein the prosecution and the defense are given the opportunity to present their evidence and at the same time be given the opportunity to challenge the evidence presented by the opposing party. In the adversarial system, the order in the presentation of individual witness starts with the direct examination, followed by the cross-examination, the re-direct examination and the re-cross examination.
Also, as a system, the adversarial system is more cost-effective system compared to the inquisitorial system. To reiterate the role of the judge or the jury here is merely to appreciate the evidence and the rule of law presented by the disputing parties. They are not burdened with the duty of looking for the evidence that is not only time consuming and costly for the state but it detracts the mind away of the magistrate from the its more important function which is its duty to adjudicate the dispute. In the adversarial system, the magistrate’s or the jury’s function is more concentrated on its function of hearing the parties and giving the decision.
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