Adversary System

A second way to view the adversary system is as a theoretical model. Conflict resolution is posited as the goal of the process, and the adversary model is then understood to comprise those procedures that implement this goal most effectively. In this second sense, then, the adversary system is a blueprint designed to promote the choice of certain procedures. Elements of the blueprint and features traditionally classed as adversary do not coincide.

Two methods have been used to construct the theoretical model of the adversary process. One method begins from the initial state of conflict between two sides and conceives of the ideal conflict-solving process as a simulation of, and substitute for, the private war between them. This leads to the central image of proceedings as a contest of two sides before the conflict-resolver. The task is then to develop procedural arrangements logically following from this central image. For example, if the adversary judge were permitted to inquire into facts not in dispute between the parties, the proceedings to determine these facts would "logically" cease to be a party contest. Consequently, the adversary model denies to the judge any independent powers to inquire into facts.

The other method starts from the desired end, which is said to be the acceptance of the court's decision by the disputants. The task here is to identify those procedures most likely to produce such acceptance, beginning with the premise that the goal of acceptance is promoted where the parties are permitted to exercise control over procedural action. In contrast to the first method, which relies on logical analysis, the second relies on observation and experiment. For example, whether participation of lawyers is an integral feature of the model hinges on whether such participation contributes to the control of the parties over the process.

As a model of a conflict-solving process, the adversary system is known in both continental European and Anglo-American legal cultures. Under the label "accusatorial proceedings" the model has a long history on the Continent.

The continental legal culture. Efforts to construct an ideal conflict-solving process are to be found in twelfth-century Roman Catholic ecclesiastical scholarship. By the fourteenth century, Italian students of procedure included in accusatorial proceedings many features now incorporated in the adversary system. But the most inclusive models of the conflict-solving process are products of rationalist "natural law" scholarship at the turn of the nineteenth century.

These models appear extremely "adversarial" even from the perspective of Anglo-American legal culture. Termed "the party-dominated process" (Parteiverfahren) by German legal theorists, they deserve brief description. Under them, the judge cannot initiate or continue proceedings without an actual dispute. Parties control the factual and, to a great extent, the legal boundaries of the case. Pleadings and stipulations are necessary devices to define and narrow issues, and the judge is not permitted to overrule such mutual arrangements. The court is also denied the power to call witnesses on its own initiative. Even the court's powers of interrogation, otherwise very important on the Continent, are seriously curbed: only questions suggested by the litigants can be asked. Party "autonomy" is thought to be incompatible with the duty to testify, and thus a party can invoke a general "right to silence" if called to take the stand. Usually, minimal obligations are imposed on the litigants to disclose evidence or information. "Nobody is expected to supply weapons to his adversary" is the often-invoked maxim.

But this model, so rigorously designed as a contest of two sides before a passive judge, was recommended as a blueprint only for civil cases that were regarded as self-contained private controversies. Because no larger implications were perceived in such lawsuits, judicial passivity seemed appropriate, if not mandated by the requirement of judicial neutrality. Many continental European countries, therefore, enacted codes of civil procedure incorporating features of the recommended theoretical model. The rational implementation of policies toward crime was thought, however, to make the blueprint inapplicable in criminal cases. Though the logic of the party-dominated model might have permitted the prosecutor to represent the public interest in crime control, it was viewed as unacceptable to give the other party—the accused—mastery over defensive issues. If this were done, a substantively erroneous result might be imposed on the passive court. For example, an insane defendant could be convicted if, for some strategic reason of his own, he failed to raise the insanity defense.

European procedural theory thus developed a variety of modified blueprints for the criminal process, some of which were built on the "accusatorial principle" or on the "principle of contradiction" (Damaška, p.560). In their most radical form, they recommended a partial simulation of the party contest, with evidence collected mainly by a nonpartisan but active decision-maker. The facts alleged in the prosecutor's charge constitute the only limit on the court's inquiry.

The Anglo-American legal culture. In Anglo American countries, efforts to formulate organizing principles of procedure are mainly the product of the twentieth century. In civil procedure, for example, continental influences have led to the adoption of the twin principles of party prosecution (that the court will take no step in the case except on motion of a party) and of party presentation (that the scope and content of the controversy are to be defined by the parties). As a shorthand expression of the characteristics of the classical civil lawsuit, the two principles enjoy a certain currency in scholarly discourse.

In criminal procedure, theoretical study has been devoted principally to the discrepancy between the realities of law enforcement and the aspirations expressed in the traditional concept of the adversary system. But there was another factor that contributed to the emergence of theoretical models. A fascination with empirical science led to the desire to compare the efficiency of some features of the adversary system with the inquisitorial alternatives. Most of the empirical studies focused on alternative ways of developing factual and legal material for decision. For the narrow purposes of this research, an adversary "mini-model" was defined as an arrangement where proof and argument are presented to the decision-maker by two partisan advocates, whereas the inquisitorial mini-model was described as a unilateral official inquiry into facts and law. The two models were then used in laboratory experimentation to test their relative efficacy in counteracting the decision-maker's bias, producing reliable results, or attaining some other goal. For example, since in the adversary model the judge is required to listen passively to both sides of the case before making a decision, it was hypothesized that he or she would be less likely to become prematurely biased and draw a conclusion too early (Thibaut and Walker, 1975; Sheppard and Vidmar).

The models reviewed here are all based on the assumption that the goal of the process is the resolution of a conflict. They constitute useful guidelines for reform of procedural systems only insofar as these systems are directed toward the same goal. What then is the relation of theoretically posited goals to reality? Conflict resolution as a goal may be restricted to the contested trial in Anglo-American countries, and even there it may be a secondary or only a superficial aim. If the court refuses to accept the defendant's guilty plea, as it is empowered to do in the majority of common law jurisdictions, the case goes to trial despite the absence of a genuine controversy between the prosecution and the defense.