Legal Process: The Pursuit of Victory Versus the Pursuit of Truth

9 September 2016

Supreme Court Justice Warren Burger once remarked that if he were innocent he would prefer to be tried by a civil law court, but if he were guilty he would prefer to be tried by a common law court.

Since “the facts” are an important (absolutely fundamental) premise in reaching any practical conclusion about parties’ legal responsibilities, the fact-finding – or rather the fact-proving – structure of a legal system has a very significant effect on the outcome. Although academics can discuss problems from an omniscient “eye of God” perspective, the real world cannot; if a party cannot “prove” a fact to whatever standard, and by whatever means, the legal system requires then it might as well have never happened.

Legal Process: The Pursuit of Victory Versus the Pursuit of Truth Essay Example

Early legal procedures attempted to overcome this handicap by relying on divine intervention to protect or support the party in the “right” – methods of proof that we would now find distasteful and unacceptable. Every legal system must therefore work with a reconstructed model of reality, the content of which is determined by the rules of procedure and evidence (but which should ideally furnish the most accurate approximation possible of what actually happened? ) The processes for establishing your legal rights, and providing remedies for breaches of them, do in a very practical way determine what your rights actually are in any given case.

In the Liberal Democrat model outlined earlier, we now expect that that these processes will be fair and consistent with the ideals of a just system. There are two major systems for establishing fact in world legal systems: • the Anglo-American adversarial (or accusatorial) system, and • the Continental inquisitorial system (also referred to as the civil law) system which applies in most of the non-English speaking countries of Europe. There are, however, no purely adversarial or purely inquisitorial systems in existence; rather there are hybrids which are to a greater or lesser degree adversarial or civil law in nature. All enlightened evidential systems are probably honest attempts to discover and protect the truth, and we should perhaps think of these alternatives as reflecting a fundamental (but not mutually exclusive) difference in approach which, in a large measure, determines the procedural and evidential processes that apply in the courts and affect the prospect of ascertaining “the truth” in proceedings.

The rival systems differ fundamentally on a key method of investigation and adjudication: reliance on the accused to furnish testimonial evidence of their guilt. The essential character of these systems was summed up by the New Zealand Law Commission in 1996 in these terms: Adversarial systems require the judge to be an impartial arbitrator of facts presented in evidence by the parties to proceedings, and imply some degree of equality between the parties.

These systems are also known as accusatory, so named because a person or representative of the community makes an accusation of criminal offending against a suspect. … Inquisitorial systems are systems of justice in which the judge has an investigative as well as an adjudicative role and proceeds with an inquiry on his or her own initiative (unlike adversarial systems where the parties conduct investigations and present the evidence). The Privilege Against Self-Incrimination, A discussion paper Hence the cryptic description of the difference as The Pursuit of Victory versus The Pursuit of Truth.

The United Kingdom and France differed in the path that they took. At this time the court systems of both England and Europe used an adversarial system to determine who could be tried for a crime and whether they were guilty or innocent (though it lacked many, indeed most, of the hallmarks, processes and safeguards of modern adversarial systems; because of the difficulties in deciding cases, procedures such as trial by ordeal or trial by combat were accepted as legitimate ways of finding truth or settling a dispute).

Unless a person were caught in the act of committing a crime, they could not be tried for a crime until they had been formally accused, either by the voluntary accusations of a sufficient number of witnesses or by an “inquest” convened specifically for that purpose(an early form of grand jury). Because it relied on the voluntary accusations of witnesses, and because the penalties for making a false accusation were severe, witnesses were often hesitant to actually make their accusations to the court, for fear of implicating themselves..

In 1198, Pope Innocent III began a reformation of the ecclesiastical courts and established the Inquisition; under this new process, an ecclesiastical magistrate no longer need a formal accusation to summon and try a defendant, but could summon and interrogate witnesses under oath on his own initiative and if their testimony accused someone of a crime, then that person could be summoned and tried.

In 1215, the Fourth Lateran Council affirmed the use of the inquisitorial system and forbade clergy from holding or assisting at trials by ordeal and combat. Confession was the essential component of the inquisitorial system employed by the ecclesiastical courts. The inquisitional oath was a sworn promise by the person under inquisition to tell the truth in answer to any question put by the court – a refusal to answer or to give a sworn statement was regarded as a confession of guilt.

The purpose behind the oath was to extract a confession and the sworn statement was frequently demanded without informing the defendant of the substance of the complaint, the incriminatory evidence, or the identity of his or her accusers. In England, however, from 1160 onwards, Henry II had established separate secular courts.

While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional system, the secular common law courts continued to operate under the adversarial system, and the adversarial principle that a person could not be tried until formally accused continued to apply for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna Carta. In the United Kingdom the common law courts eventually achieved supremacy over the ecclesiastical courts (which were thereafter limited to matters of succession, marriage and divorce and were eventually replaced by secular courts).

The inquisitorial process, however, did not finally disappear from the English system until the abolition of the “Court of Star Chamber” in 1641 (by the time of Charles I it had become a byword for the misuse and abuse of power by the king and his supporters to suppress opposition to royal policies). The common law took the position that an accused should not have to incriminate him or her self by way of either an oath or information extracted through torture and must, accordingly, have the right to remain silent.

(The right to remain silent was established in the United Kingdom in the 17th Century in the Case of John Lilburne, 1638) The “privilege” (as we now call it) against self-incrimination, or “the right to silence” has come to be seen as a fundamental right and there are many ancillary related doctrines that flow from this such as the presumption of innocence, the placing of the burden of proof upon the prosecutor and the standard of proof required (beyond reasonable doubt). This is also the justification for the development of the right to cross-examine an accuser.

In modern inquisitorial systems, by contrast, the accused can be required to make a statement – it is usually not under oath, and he/she cannot be cross-examined on it, so it allows them to “explain” their position without any aggressive interrogation by an opposing counsel. Modern inquisitorial systems developed after the French Revolution and spread throughout Europe and many African, Asian and South American countries – they are, in fact, more numerous than the adversarial type system of the US and Commonwealth countries.

The parties are contestants; due process and the rules of evidence (including the right to silence) have been designed to ensure that the contest between the parties is conducted fairly. There is a presumption of innocence and the accuser must prove the accusation beyond reasonable doubt without the compelled assistance of the defendant. The rules of evidence are designed to ensure that only relevant and reliable information is presented to the court, rather than irrelevant information or information the proof value of which is outweighed by its prejudicial effect. The judge (and jury) knows nothing of the litigation until the parties present their case and arguments.

The presiding officer plays a passive role (like an umpire in a tennis match and the outcome is determined by the skill of the players). There is an emphasis on equality of the parties because the truth is said to be best discovered by contested assertions on both sides of the question and the contest of evidence. [This is a valid methodology for the discovery of truth in any discourse – in legal proceedings however, the methodology is warped by the fact the parties are not sharing a common pursuit or testing of the truth: see The Adversary Method in Law and Philosophy by Dixon, on Learn].

A frustrated judge in an English court finally asked a barrister after witnesses had produced conflicting accounts, ‘Am I never to hear the truth? ‘ ‘No, my lord, merely the evidence’, replied counsel. Practical Guide to Evidence Peter Murphy In criminal proceedings, the accuser has the onus of proving the accusation beyond reasonable doubt. If the prosecution fails to meet this burden, whether through ill-preparation or simply a lack of evidence, the State loses its case. The approach is essentially the same for civil trials, except that the burden of proof is lower – the judge has only to be convinced “on the balance of probabilities”.

The adversarial system is also criticized by some because it cannot as satisfactorily resolve complex business, scientific and technical issues as could, say, a panel of experts given the authority to make scientific or technical findings or, say, a Commission of Enquiry into a matter of general public importance. Since the parties have considerable control over the line of inquiry and the issues to be addressed, the conclusion reached by the court cannot be necessarily equated to an objective reality. The point was recently well made in these words by an English judge at the start of his judgment in a recent complex.

A lawyer assisting a client with the resolution of a dispute must keep the client advised of alternatives to litigation that are reasonably available (unless the lawyer believes on reasonable grounds that the client already has an understanding of those alternatives) to enable the client to make informed decisions regarding the resolution of the dispute. HIGH COURT RULES 2009 [NEW ZEALAND] 1. 2 Objective The objective of these rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application. DISTRICT COURTS RULES 2009 1. 1 Title These rules are the District Courts Rules 2009 1. 2 Commencement These rules come into force on 1 November 2009. Part 1 Preliminary provisions 1. 3 Objective 1. 3. 1 The objective of these rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.

The objective of these rules includes, so far as is practicable,— (a) ensuring that all parties are treated equally; and (b) saving expense; and (c) dealing with the case in ways that are proportionate to— (i) the importance of the case; and (ii) the complexity of the issues; and (iii) the amount of money involved; and (iv) the financial position of each party; and (d) ensuring that the case is dealt with speedily and fairly; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. 1. 4 Courts to give effect to objective The courts must give effect to the objective of these rules when they— (a) do any act under these rules; or (b) interpret these rules. 1. 5 Application of rules 1. 5. 1 These rules apply to— (a) civil proceedings taken in a District Court under the District Courts Act 1947; and (b) unless otherwise provided in these rules or any other enactment, other civil proceedings taken in a District Court or before a Judge. 1. 5.

These rules do not apply to proceedings to which the Family Courts Rules 2002 apply, namely— (a) proceedings in Family Courts; or (b) proceedings in District Courts acting under— (i) section 151 of the Children, Young Persons, and Their Families Act 1989; or (ii) section 15 of the Family Courts Act 1980. 1. 5. 3 Nothing in this rule prevents the parties in a civil proceeding from applying to the court or a Registrar for an order under rule 1. 7 directing the parties to settle their dispute by mediation or other alternative dispute resolution 1. 6 Application of High Court Rules 1. 6. 1 These rules apply specified High Court Rules (for example, by listing them in the style “HCR 5. 36— authority to file documents”) and the intention is that each High Court Rule applied by these rules applies with the modifications (if any) indicated in these rules and with the other modifications necessary for District Courts. 1. 6.

In general, modifications are necessary because— (a) there are jurisdictional differences between District Courts and the High Court: (b) District Courts have offices and the High Court has registries: (c) a proceeding (other than one in admiralty or defamation, or to enforce an arbitral award) will be started by filing a notice of claim, and subsequently the proceeding will follow the procedure for responses, information capsules, and notices of pursuit of claim unless a court grants leave for the parties to follow the High Court procedure for statements of claim or originating applications: (d) new forms called information capsules are to be exchanged by the parties: (e) judicial settlement conferences and judicial directions conferences are provided for under these rules rather than case management conferences. 1. 6.

In applying a High Court Rule that uses a term or expression that is defined in these rules (for example, court), the term or expression has the meaning given by these rules unless these rules otherwise provide or the context otherwise requires. 1. 6. 4 In applying a High Court Rule that refers to another provision of or to a form prescribed by those rules, that other provision or form also applies for the purposes of these rules unless these rules otherwise provide or the context otherwise requires. 1. 6. 5 For example, in High Court Rules applied by rule 3. 44 of these rules (service generally),— (a) a reference to a statement of claim will have to be read as a reference to a notice of claim if the proceeding is or has been pursued under rules.

Reference to a statement of defence will have to be read as a reference to a response if the proceeding is or has been pursued under those rules. 1. 7 Mediation or other alternative dispute resolution 1. 7. 1 The parties in a proceeding may apply at any time to the court or a Registrar for an order directing the parties to attempt to settle their dispute by an agreed form of mediation or other alternative dispute resolution specified in the order. 1. 7. 2 The court or Registrar may make the order only by consent of the parties. 1. 7. 3 The fact that the parties are actively pursuing settlement may be taken into account by the court or Registrar in considering an application by 1 or more of the parties for an extension of time under rule 1. 18.

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