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Procedures

What is the Adversarial System?

By Felicia Dye
Updated May 16, 2024
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The legal system in the United States is an example of one that is adversarial. In an adversarial system, there are generally three distinct parties in criminal and civil matters. There are the two opposing sides, in which one is often the accused and the other is the accuser. Then there is the decision maker, who is generally a judge or jury.

This type of system dates back centuries to old English law, and the model was imported to America when the land was divided into colonies. The system has greatly evolved over time. In the beginning, for example, those who were accused were not allowed to properly defend themselves. Justice was a matter of having evidence presented in support of the charges against a person and having a decision maker pass judgment.

Under the modern system, legal proceedings usually involve the opposing parties approaching matters in a competitive way. Each of the adversaries is given an opportunity to present arguments and evidence that supports its claims. The adversaries are generally also given the opportunity to question one another.

Allowing this balance of opportunity between the opponents is believed to be in the best interest of justice. It can give the decision maker access to more information than she is likely to receive from either party solely, and it also adheres to a person's rights to defense. The decision makers are supposed to be free and impartial, which generally means that their decisions should not be driven or influenced by any factors other than those strictly related to the matter at hand.

Winning in an adversarial system can be achieved in more than one way. Since the system is based on adversity, when there is none, a matter is generally resolved. This means that if one party concedes to the claims of the other, the challenge ends. A good example of this is the high number of plea bargains that exist in the US. Since the accused agrees to the charges against him, there is no need for the two sides to argue before the decision maker.

In other instances, when the two adversaries remain opposed, it is a matter of convincing the decision maker. To do so, the parties can prevent various types of evidence including testimony, witnesses, and physical items that support all or part of an argument. Strategies that are used include cross examination and closing remarks. Whatever the decision maker decides should be based on what has been presented and not personal beliefs or intuition.

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Discussion Comments

By anon162555 — On Mar 24, 2011

An adversarial system, in my own view, encourages the magistrates and even the judges to misuse their power and involve themselves in corruption.

This happens when the impartial judge becomes active at the end of the proceedings in order to write the judgment.

The adversarial system in the countries like Tanzania in East Africa is not absolutely adversarial, because, to some extent, the judge intervenes between the parties to get clarifications which is not in the civil procedure code. In that sense, the adversarial system is practically not adhered too. --Polycarp M.

By comfyshoes — On Jan 15, 2011

Latte31-That case is really sad. I know that one of the great things about the adversarial system of justice is the witness system.

Both parties are offered information on the proposed witnesses so that it is not a surprise to either side. They also receive evidence gathered from both sides to give both attorneys the same tools to develop their cases.

These rules make the adversarial system a more superior system in a modern justice system.

By latte31 — On Jan 13, 2011

Moldova-I agree that he had great lawyers. I think that cases like this where one side feels that the jury offered the wrong verdict can seek civil lawyers in order to file a civil lawsuit and seek punitive damages.

That is what happened in the OJ Simpson case. He was sued by The Goldman’s whose son was murdered by OJ Simpson along with his ex wife.

In a civil suit the standard of guilt is a lot lower and the jury ruled in favor of the Goldmans for a judgment of 33 million dollars. This was a symbolic victory because the Goldmans have received very little of this money.

By Moldova — On Jan 12, 2011

GreenWeaver-I think that adversary system if the best form of justice because it gives both parties equal access to evidence and offers the right to a fair trial for the defendant.

It also allows their counsel to adequately represent their client. Sometimes the adversary system is criticized because it gives defendants accused of heinous crimes the same opportunity to have their day in court and receive adequate representation.

Sometimes adversarial justice prevails and sometimes it does not. For example, in the OJ Simpson case the adversary system worked in favor of the defendant OJ Simpson because his lawyers demonstrated a more superior presentation.

It did not mean that because he was found not guilty that he was not involved in the murders, but simply his lawyers performed better. This is where people criticize the justice system and say that those with significant means have a significant advantage over those who are indigent and have to rely on an overworked public defender.

OJ Simpson had a team of seven high profile lawyers that was no match for the prosecution.

By GreenWeaver — On Jan 11, 2011

The adversarial system vs. inquisitorial system is very different.

In the adversary system of justice like you have in the United States, the prosecutor and the defendant are on opposing sides and have an adverse relationship hence the name.

Adversarial justice allows both sides to make a logical argument to the judge and jury and allows both arguments to be heard equally.

In an inquisitorial system like they have in France and Italy is far different.

With the inquisitorial system of justice, the judge does the questioning and decides the ruling based on his judgment. This is problematic because although judges are supposed to be impartial, they do have prejudices that sometimes come in to play and can cloud their judgment.

This is why we have a jury trial in the United States so that a group of the defendant’s peers can actually judge the case on its merits.

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