Adversary System

In its third sense, the adversary system is a procedural type designed by comparative law scholars to capture characteristic features of the common law process, particularly when contrasted with continental systems. For some of these scholars the adversary type is the common denominator of all Anglo-American procedures, yet this conception is problematic. Consider, for example, the question whether the exclusion of illegally obtained evidence from the prosecution's case at trial represents a defining feature of the adversary type. Because the exclusionary rule has not been adopted by all Anglo-American jurisdictions, but has been adopted in several continental European countries, the answer is no (Hermann, p. 18). Under this approach the precise meaning of the adversary type remains hostage to changes in the law of a single common law country.

Other scholars conceive of the adversary type as an ideal of procedure that is not fully duplicated in any actual system. This second approach can best be exemplified by analogy with styles in art. To classify a work of art as pertaining to a particular style, it is thought sufficient that the work encompass some, though not all, elements of the stylistic ideal. Similarly, certain features can be viewed as typically adversarial, although they are found only in a small number of actual procedural systems. Of course, in order to be useful, the ideal type of the adversary process must provide a structure in which actual systems can be recognized, albeit in exaggerated or stylized form. This second approach is more widespread and will therefore be examined in some detail.

Most scholars describe the ideal type of the adversary process by focusing their attention on the trial stage of the criminal process and on the three-sided relation among the prosecution, the defense, and the court. This triadic relation is significantly different in continental and Anglo-American countries. In the former, the court tends to monopolize the courtroom activity; in the latter, the prosecution and the defense take the largest share of action. As a result, the ideal of the judge as a passive umpire, rather than an active seeker of the truth, is taken as the central ideal of the adversary system (Ploscowe, p. 433). But the focus on triadic relations leaves too much out of account. Both in Europe and in Anglo-American countries, important segments of the criminal process unfold in the absence of the judge and may involve other officials such as the police. Moreover, even if one considers only incourt proceedings, there are often four rather than three actors to consider—crime victims play an increasingly important role. Indeed, many European systems give the victim the rights to be heard as a party and be represented by counsel.

The contrast between Anglo-American and continental criminal procedure is best expressed in two basic notions. The first, underlying the inquisitorial type, regards the criminal process as an official inquiry. The second, underlying the adversary type, regards criminal procedure as a regulated contest between the prosecution and the defense. In discussing other meanings of the adversary system, the image of proceedings as a contest has already been encountered. But the comparative perspective highlights some aspects of this contest that are overlooked by a purely domestic vision.

First, under procedures of the adversary type the prosecution and the defense prepare two independent cases in advance of the trial (often with a view to possibly avoiding trial). Unlike the inquisitorial type, there is no nonpartisan agency preparing a single, or "integrative," case or case file. Problems of maintaining rough equality of the prosecution and the defense can thus arise long before the trial. Pretrial detention, for example, does not fit neatly into the adversary type, because it hampers the defendant in preparing his own independent case. Moreover, the resources and legal powers of investigation of the prosecutor are usually far greater than those of the defense. On the other hand, the exclusionary rule fits in smoothly. If in preparing its case the prosecution breached the law, it should not be permitted to reap advantages from such a "low blow."

Second, various forms of negotiation between the prosecution and the defense are a salient feature of the adversary type. Consider, for example, how easily the practice of plea bargaining fits the "style" of a process based on the notion of contest. It makes little sense to go on with such proceedings if the defendant refuses to oppose the demands of the prosecution. By contrast, in proceedings conceived of as an official inquiry, the defendant need not be asked how he pleads: the trial can go on irrespective of his attitude toward the prosecutorial charges. Inducements to facilitate the task of crime control agencies exist, of course, in both adversary and inquisitorial systems. But the two are characterized by the different loci of such inducements. In the adversary process, both sticks and carrots are used to persuade the defendant not to contest charges, so that the need for trial is obviated. In the inquisitorial process these inducements are used during the interrogation of the defendant: he is urged to reveal information facilitating the task of the officials conducting the inquiry.

So far we have dealt with the conventional position that attributes the same meaning to the words adversary and accusatorial. It has been suggested, however, that comparativists should draw a distinction between the two (Goldstein, p. 1016). Under this approach the adversary process is said to denote only a method of finding facts and deciding legal problems, and is characterized by two sides shaping issues before a relatively neutral judge. The accusatorial system, on the other hand, is a more encompassing concept, which includes the adversary method as its constituent element.

The meaning of this broader concept depends on the contrast with the inquisitorial system, and its non-adversary method of proof and trial. The contrast turns on the divergent attitudes of state officials. In the inquisitorial system, officials are self-propelling and affirmatively obligated to carry out state policies, but in the accusatorial system they step into action only when a controversy arises and they are requested by the participants to respond. Each attitude entails a variety of consequences and choices among procedural forms, the choice of the proper method of finding facts being only one of many. Ultimately, the contrast between the inquisitorial and the accusatorial modes of proceeding involves two polar views about the role of government in society; that is, whether government should be "reactive" or "proactive" (Goldstein, p. 1017).

The idea of linking the characteristics of the Anglo-American criminal process to political ideology is promising. Important features of the Anglo-American criminal process cannot be reduced to the abstract notion of contest, which is so central to the adversary type. Moreover, some features of Anglo-American justice are in conflict with procedures mandated by notions of a fair contest. For example, the right of the defendant to personally defend himself—a right unique to common law—follows from the tenets of the reactive liberal ideology, but it seriously strains notions of a fair contest (Faretta v. California, 422 U.S. 806 (1975)). If more common law characteristics are to be captured in procedural types, broader organizing principles are needed, and the ideology of reactive government provides one such principle. Consequently, it seems sensible to distinguish between the adversary type, which focuses on the contest design, and the accusatorial type, which centers on a political theory.

But even the broader concept of the accusatorial system fails to account for many striking characteristics of the Anglo-American criminal process when the latter is contrasted to continental systems. From the earliest known attempts to describe the peculiar nature of common law justice, the participation of the lay jury was regarded as its hallmark, and lay decision-making as one of its most characteristic elements. The law of evidence, for example, is the product of the interaction of the judge, the jury, and the lawyers (Langbein, p. 306). These features elude the adversary type organized around the notion of a contest; the latter can plainly take place with or without a jury. Nor does the accusatorial system, inspired by the reactive philosophy of government, require jury trials; lay adjudicators can be an arm of a totalitarian as well as of a laissez-faire government. Nevertheless, trial by jury reinforces the characteristic Anglo-American image of the criminal process as a contest of the accused and the state before outside arbiters. Where, as on the Continent, the apparatus of justice is dominated by hierarchically organized civil servants, this conception of the criminal process has little credibility—prosecutors and decision-makers are all too easily traceable to the center of state power. But the contest imagery has far greater plausibility in a procedural system where verdicts are reached by laypersons recruited to serve on the criminal court.

The difficulties involved in expressing the peculiar character of Anglo-American criminal procedure have given rise to increased skepticism as to whether any version of the adversary type can be useful. Those scholars of comparative law who subscribe to the common-denominator approach are clearly justified in their doubts: no single model can be set up to which all Anglo-American criminal procedures conform (Langbein and Weinreb, p. 1551). But even those scholars who are less demanding seem increasingly skeptical. Factors involved in describing the peculiar character of Anglo-American proceedings are too complex and heterogeneous to be captured in a single, internally consistent type of criminal justice. Moreover, as the world's criminal justice systems have become increasingly "hybridized," continental and other non–Anglo-American, "inquisitorial" systems have incorporated many adversary features traditionally seen as defining characteristics of common law systems.