Problems of the Criminal Judiciary The Adversary System
Problems of the Criminal Judiciary The Adversary System
“In July of 1973, in upstate New York, two girls separately disappeared…. ” from Anne Strick, Injustice for All (1977)
Class Discussion Should the lawyers have revealed what they knew about the deaths of the two young women?
Key Features of the Adversary System l Neutral, unbiased decision maker l Role of adversaries to develop the evidence l Governed by procedural rules
The Problem of Decision Maker Bias “What generally occurs in practice is that at some point a familiar pattern will emerge from the evidence…. What starts as a preliminary diagnosis…tends…to become a fixed conclusion…” Lon Fuller, The adversary system (1961)
Claims About the Adversary System l It will combat decision maker bias l It will increase the likelihood that all of the evidence is found and presented to the decision maker l It will result in greater satisfaction with the judgment by the parties l It will protect the rights of the parties better than the alternatives
Legal System Alternatives Adversary system Inquisitorial system
Testing the Adversary Model l Thibaut and Walker study: Does adversary versus inquisitorial presentation of evidence combat decision maker bias?
Thibaut and Walker Study l Half the subjects “biased” and half the subjects “unbiased” l Half the subjects had adversary presentation (2 people); the other half had inquisitorial presentation of evidence
Thibaut and Walker Predictions l If adversary system is better at combatting decision maker bias, what should happen?
Thibaut and Walker Results l Degree of lawfulness (1=unlawful, 9=lawful)
Thibaut and Walker’s Conclusion Adversary presentation reduced decision maker bias
Sheppard and Vidmar Study Examined adversary system’s impact on testimony and lawyer’s role
Stages of Sheppard and Vidmar Study l Witnesses observed a fight l Witnesses were interviewed by adversary or non-adversary “lawyer” l Witnesses “testified” one week later.
Sheppard and Vidmar: Oral Testimony Bias l Degree of bias in oral testimony
Sheppard and Vidmar Witness Study l Witnesses observed fight l Witnesses given a subpoena to testify for plaintiff, defense, the court l Same oral biases observed
Claims About the Adversary System l It will combat decision maker bias
Claims About the Adversary System l It will increase the likelihood that all of the evidence is found and presented to the decision maker
Claims About the Adversary System l It will result in greater satisfaction with the judgment by the parties
Claims About the Adversary System l It will protect the rights of the parties better than the alternatives
But!! l Adversary testimony system increases bias in
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