The Due Process of Adversarial System: What About the Victim?

Subject: Law
Pages: 8
Words: 1977
Reading time:
8 min
Study level: College


The U.S. Courtrooms practicing the adversarial system of justice have time and again been compared to combat zones or level playing grounds. This statement arise from the fact that this system of justice makes it possible for interested parties to a proceeding to square it out in a court of law using well-thought set of legal procedures designed to provide justice to the parties (Greenfield, 2008). The statement also accrue its rationale from the fact that the adversarial system of justice makes it possible for legal disputes in the U.S. and other countries practicing the common law to be settled in a way that promotes the thinking that legal controversies are contests or battles that has to be fought and won using all available resources (Koppen & Penrod, 2003).

The adversarial system of justice has been generally adopted in many common wealth countries, and relies on the skill of each lawyer to represent his or her client. The client is represented in front of an impartial jury which tries to determine the truth of the alleged offense or criminal activity.

Main body

Scholars have linked the origins of the adversarial system of justice to the medieval manner of combat trial whereby a champion was allowed to represent accused women during trial. To date, many individuals still maintains that the system offers the best procedures of determining issues in dispute under the common law system (“The Adversarial System – History,” 2008). However, other theories have been developed to compete with the traditional due process off adversely justice. For example, Lord Woolf developed a case management system that was being controlled by the judge or jury rather than the lawyers. This system is popularly gaining usage in the United States.

In adversarial system, lawyers are often requested to outline a strategy of how best they can represent an individual charged in a court of law for alleged wrongdoing or crimes. The client or perceived criminal is at liberty to have the best representation of the case before the jury, but the counsel must not at any one given moment deceive the court. In the same light, lawyers in some common wealth countries practicing the system are required to forthwith stop representing an accused person if he or she admits guilt. Under the system, an accused individual is not under any discretion required to give evidence in a criminal adversarial proceeding.

The accused is also given much leeway in that he or she may choose not to answer questions coming from the judge or prosecutor. It is such privileges that make the adversarial system one of the best when it comes to the protection of autonomy and dignity of the accused (Duff et al., 2004).

In this type of system, the decision of counsel as to what evidence will be summoned before the courts is a vital approach basically because the strength of the case lies with them (Kubicek, 2006). When the accused decides to testify in court, he or she must then be prepared to be subjected to cross-examination from prosecution and jury, and could indeed be found guilty of lying under oath in such a circumstance.

In the same vein, the accused can prevent any examination or cross-examination if he or she decides to maintain the right to silence. Hence this system can be said to rely on the counsel’s manipulation of truth. This type of system requires the skills and experience of the lawyers on both sides of the accused and the defendant to be moderately subjected and pitted to an independent jury (Sharma, 2008).

Though the Anglo-American adversary system has steadily developed over more than a few hundred years, the English jury trials were amorphous proceedings through which the judge acted as a prosecutor, inquisitor, and fact finder. The accused persons’ were never given any opportunity to call their own witnesses or mount an assenting defense against their accusations (“The Adversarial System – History,” 2008). The accused were also not allowed to be represented by counsel or advocates, or cross-examine witnesses. The results of such cases were highly manipulated by the juries’ instructions and remarks though it was required of them to be passive and neutral. Indeed, before 1670, members of the jury panel could be jailed or fined for declining to follow the directions given by a judge (Koppen & Penrod, 2003).

One of the theories of the adversary system is that the lawyer-accused communications must be confidential and privileged. Lawyers under the system cannot be forced to reveal a client’s written or oral statements to anyone (“The Adversary Justice,”2009). This Theory came from the basic understanding that an accused party would not feel free to reveal everything his or her attorney needs to know in order to represent his or her interests in a court of law if the sacred trust of confidentiality was not sacrosanct among the parties. This type of justice recognizes that great grievances would be done to the accused if they are not allowed or are afraid to disclose their cases to their attorneys.

The criminal trial courts operating under the adversarial system recognizes the fact that for justice to be done, defense and prosecution must face each other, and that justice is done when the most effectual adversary is able to convince the jury or judge that his or her own viewpoint regarding the case is the correct one (Kubicek, 2006). In the case of robbery, kidnapping, or rape, the accused must be given a fair chance of defending himself or herself through the established legal systems.

Under this system of justice, the counsel or advocate’s role is to act as the protector of the accused interests. The prosecution must play the double roles of being the government representative and government lawyer (Koppen & Penrod, 2003). In the case of robbery, the defense must indeed prove beyond any reasonable doubt that the accused participated in the said criminal activity and produce evidence to that effect. The defense role is to counter the evidence produced in the court of law and try to clear the accused from that type of felony. However, these opposing roles produce deviating ethical responsibilities.

The prosecutor in such a scenario is compelled to state factual evidence that is favorable to the accused when the evidence is relevant to the punishment or guilt. Under the system, the defense lawyers are however required to hold back any relevant or truthful information from the court in an explicit case even if such a practice may end up jeopardizing the search for truth (“The Adversary Justice,”2009). This means that the defense should never at any one time admit to the fact that the accused was a robber even if all available evidence points to that direction.

Coinciding with that, the defense counsels in the adversary justice system are bound to represent all clients despite their status of guiltiness (Koppen & Penrod, 2003). The counsel must actively ensure that they dynamically guard the rights of the accused, and ensure that judges and citizens logically establish the guiltiness or innocence of the accused. In the case of an accused robber, the defense advocates operating under this system may prefer not to ask the accused if they are guilty of the said crime. Under such circumstances, the defense lawyers prefer to use the facts provided under the law to win over the prosecution ineptitude to prove its case beyond any reasonable doubt (Kubicek, 2006).

In the case of robbery, there exists a difference between what the prosecution lawyers can prove and what the accused did. Even if the accused was an actual robber, the burden of proof lies squarely on the prosecution. Under the system, the robber is not legally guilty until the prosecution advocates sheds enough evidence to convince the jury and judge that indeed the defendant is guilty of the said crime. Under the law of adversary justice, this is the due process, or the fundamental fairness.

The law clearly stipulates that criminal justice should never concentrate on the rights of victims but should indeed concentrate on defendants’ rights. This is explicitly provided for in the Bill of Rights (Hostettler, 2009). The government and prosecution must therefore follow the legal procedures in their efforts of trying to determine if indeed the accused person is guilty of the said crime.

The powers of police must be limited under the due process of adversary justice to avoid official oppression of the accused. However, this is not so especially in developing countries where the common law is practiced. Police are known to harass the accused persons so that they may admit to their felonies or misdemeanors. But under the ideal system, criminal justice practitioners like the police and courts must always use processes, rules, and principles that ensure reliability and fairness in the justice process (Koppen & Penrod, 2003).

For instance, a robber must be ensured of a fair trial in court and proper handling and investigation by the police even if all available evidence points to the fact that the accused was indeed a robber. The process of criminal justice under the adversarial system should indeed exercise procedural preserves that serve to convict those that are guilty beyond any reasonable doubt and protect those that are innocent (Kubicek, 2006).

The adversely justice system protects the rights of the accused better than those of the victim. To a victim’s rights advocate, the system may seem not to protect the rights of the wronged better than in other systems such as the inquisitorial systems. For instance, the accused is allowed under the adversely system to explain his or her side of the story without being subject to cross-examination from the prosecution side.

Under the system, the subject given by the accused in a criminal offense is not given under oath and therefore does not bind the accused. Under the system, judges must ensure that fundamental justice and due process of the law is followed. In common law jurisdictions, judges must decide on what evidence is to be admitted based on the presentations of the counsel rather than their own motives. This ensures that the rights of the accused are well protected to the obvious disadvantage of the victim. Another way of establishing that the victim’s rights are limited within the adversarial system is by evaluating how the system ensures the independence of the accused (“The Adversarial System,” 2006).

It advocates for the rights of accused by harnessing the power of self interest on the sides of the accused and the victim to discover the best evidence. In such an instance, truth is best discovered by powerful statements presented by both sides of the divide.


Restorative justice is more preferable than adversarial justice. In the former, crime is viewed as an act of wrongdoing committed to a community or individual rather than the state. The provisions of restorative justice dictate that the accused must take full responsibility for their actions, and the individual who has been harmed may take a central role in the legal process. In such an instance, defense lawyers do not take a central role in the legal proceedings as it happens with adversarial justice. In the case of robbery, a case can just be summarized if the accused offers reparation or apologies directly or indirectly. This is not the case with adversarial system of justice.

The advantage of restorative justice is that it is able to effectively foster dialogue between the accused and the victim (Perry, 2006). Through the legal process, true accountability and reduced recidivism is also achieved between the parties. What’s more, restorative justice seeks to expand the case issues between the accused and the victim beyond those that are legally applicable, and into the fundamental relationships whereas adversarial justice only aims at reducing the issues between the victims and offenders to ones that are legally relevant.


Duff, A., Farmer, L., Marshall, S., & Tadros, V. The Trial on Trial: Truth and Due Process. Hart Publishing, 2004. Web.

Greenfield, S.H. Squaring Victims Rights with the Adversarial System. 2008. Web.

Hostettler, J. Fighting for Justice: The History and Origins of Adversary Trial. Waterside Press. 2009. Web.

Koppen, P.J.V., & Penrod, S. Adversarial Versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice systems. Springer. 2003. Web.

Kubicek, T.L. Adversarial Justice: America’s Court System on Trial. Algora Publishing. 2006. Web.

Perry, R. “the Role of Retributive Justice in the Common Law of torts: A descriptive Theory.” Tennessee Law Review, Vol. 73, 2006. Web.

Sharma, D. Clash of the Truth in Adversary System. 2008. Web.

The Adversary Justice System. 2009. Web.

The Adversarial system. 2006. Web.

The Adversarial System – History of the Adversarial Process. 2008. Web.