The Adversarial System
The adversarial system of law is the system of law, generally adopted in common law countries, that relies on the skill of each advocate representing his or her party’s positions and involves a neutral judge or jury, trying to determine the truth of the case. This is the system that exists in Canada with respect to criminal law. This is in contrast to the inquisitorial system which has a judge whose task is to investigate the case, this is to say, the judge does not play the role of the impartial bystander. There is no right to a jury in the inquisitorial system.
The criminal justice system in Canada makes the adversaries responsible for digging out the facts on which a decision will be based. The adversarial system works on the theory that the two opponents in a case, or their lawyers, will work harder than anyone else to produce evidence favorable to his/her side and no one else has as strong a motive. At the very core of the adversarial system is the belief that the individual is responsible for preserving individual rights.
The adversarial process through cross-examination and oral advocacy tests the prosecutor’s case presenting the best chances to reduce the chance of a wrongful conviction. Indeed, the adversarial system prides itself on the belief that it is better to let one hundred guilty persons free than to convict one innocent individual.
Those of us in the defense bar hold the current Golden Thread as the foundation of the adversarial system. The Golden Thread of our criminal justice system entails the principles of the presumption of innocence, proof beyond a reasonable doubt and the right to remain silent. Such a system is only able to be properly defended if we understand its history.
Early criminal trials in England and more particularly at the Old Bailey were conducted in a manner that would seem alien to any modern day observer. Prosecutions were private in nature in England in the 1800s. Criminal cases were conducted without defense counsel. The accused was not afforded the presumption of innocence nor did there exist any privilege against self-incrimination. The defendant was required to answer the case against him/her. Capitol murder cases took all but a few hours to complete. This is in contrast to the present situation, where a murder case can take months to complete.
This system in England was far from perfect and there was public outrage against the dangers of this system. There were serious problems of perjury, the reward system and blood money which undermined the public’s confidence in the system and which rendered the average accused unable to defend him or herself in any meaningful manner. The response by the public was understandable. As Langbeim notes, there was a growing opposition to the overuse of capital punishment in the latter half of the 18th Century, especially for property offenses. The main function of the criminal trial during this time period was to narrow down the number of individuals who would be sentenced to death.
The advent of defense counsel was a direct result of the Treason Trial Acts of 1696. For the first time, defense counsel were permitted on the behalf on the accused for serious offenses. Further developments allowed defense counsel to actually address the jury. By the 1730s judges began allowing defense counsel in ordinary felony cases to cross-examine witnesses, a development which Langbeim calls ‘the fateful step [which] sent our procedure down the path toward what would become the adversary civil trial’.
There are serious modern critics to the adversarial system. Langbeim argues that the adversarial system displaced the old altercation trial by silencing the accused and putting the crown to prove its case. He further argues that the emergence of defense counsel in an adversarial process was an attempt of “evening up” the cards but this has hampered the truth finding process and provided advantages for an accused who has the wealth to exploit the adversarial process.
The opponents of the adversarial system are not limited to academics. Governments have tried to reduce or eliminate the preliminary hearing for years. The adversarial system is almost dead in the civil context where the cost of litigating a matter to trial is prohibited for most non-institutional clients. Most civil cases are heavily case managed where the pre-trial judge acts like an inquisitorial judge to use moral persuasion to settle the case before trial.
The same approach is occurring at judicial pre-trials in criminal courts where judges feel empowered to pressure defense counsel to resolve cases (read “plead guilty”). Recently, the Superior Court of Justice in Ontario has instituted a mandatory pre-trial form. Such a form is not new. However, the content of the form effectively reverses the burden of proof. It requires the disclosure of defenses and effectively, disclosing what defense counsel see as the weaknesses of the Prosecutor’s case. Those of us who have stood our ground and refused to disclose this information have been bullied and ridiculed by the judiciary.
Fortunately, most defense counsel are not so easily intimidated as there is a person’s liberty on the line and not simply money in civil case. Such fiery opposition is alive and well and honors those who fought before us. The greatest Old Bailey defense counsel Willam Garrow would be proud if he were able to witness defense counsel in action today.
There are reasons why the Golden Thread of our justice system works. One must not forget that there is an imbalance of power and resources with respect to the state viz. the defendant. The limitless resources of the state can overwhelm the defendant and seriously jeopardize the individual’s right to a fair trial. The courts have tried to restore some balance through mandatory disclosure (R. v. Stinchcombe) and ethical requirements that the prosecutors behave in manner consistent with a mini-Minister of Justice (Boucher v. The Queen).
Langbeim argue that the “truth” has been a victim to the adversarial system. He argues that the adversarial system encourages both sides in presenting a distorted and misleading version of the facts to the fact finder. The finder of fact is left to choose between two polarized versions of events while not knowing the real facts which are known to opposing counsel.
This cannot be argued to be the case in Canada. As in a typical way, Canada has developed a balanced approached to the truth finding process. We can see that in certain Charter breaches, real demonstrative evidence, in spite of being conscriptive, can still be admissible at trial (R. v. Stillman). Trial judges are always asked to weigh the probative value of any relevant evidence with any prejudicial effects. This is a fair approach to balancing the need to search for the truth and to protect the rights of the accused.
There are limits as well, for example in relation to the cross examination of the sexual history of a complainant. So at least in the Canadian context, there is no either/or scenario with respect to finding the truth and the Golden Thread. The open ended and “fearful” cross examinations of William Garrow of the Old Bailey would not stand in any modern day criminal trial.
However, the issue of funding for counsel is a serious problem. The advent of legal aid systems in Canada demonstrates a commitment on the publics’ part to balancing the sides. While such a funding system has its problems and is inconsistent across Canada, Langbeim’s argument that wealth is an effect on the system is again, not as dire in Canada as it is in the United States where he is based and more familiar with.
In the United States, there exists in most jurisdictions a public defender system. Most public defenders in this system are underfunded, overworked and simply lack the experience to conduct a defense of a serious case. Further, the court appoints a public defender to an accused. In Canada, we have a certificate system where an accused can go to any lawyer who accepts a legal aid certificate. Additionally, there are minimum requirements for defense counsel who wish to be accept legal aid certificate. Underfunding to the legal aid system is a serious issue that threatens to undermine this system. This is even more pronounced in the wake of massive funding for mega-trials, special police units (i.e. guns and gangs) and specialized prosecutors. Without a corresponding funding commitment to legal aid, the fine balance will again tip in favor of the state and jeopardize the accused right to a fair trial.
Langbeim also argues that the advent of defense counsel is itself a shortcoming. Clearly, in the late 19th Century capital cases at the Old Bailey took a few hours and the defense counsel was not even allowed to address the jury directly. Counsel’s role was limited to cross-examination and legal arguments. However, it is the defense counsel that tests the case of the prosecutor. Further, when over 90% of case are resolved in terms of a guilty plea, at least in Canada, Langbeim’s argument does not hold water at least in Canada especially when there was no plea bargaining in the 1800s in England.
The strength of the adversarial system flows from the Golden Thread of our justice system which puts the state to the task of proving its case. The Golden Thread works best within the adversarial system. As a scientist tests a theory through rigorous examination, so does a defense lawyer who tests the case of the prosecutor through rigorous cross-examination. The Charter and mega trials have significantly increased the time is takes to prosecute many serious offenses. However, if we take the principles in the Golden Thread seriously, society may have to live with the costs of longer trials as a natural consequence of the adversarial system in action.