Adversary Procedure

Adversary Procedure

 

(law), a principle of judicial procedure by virtue of which a case is essentially a contest before the court, each party defending its claims and allegations and disputing the claims and allegations of the other.

An expression of socialist democracy in the Soviet administration of justice, adversary procedure is followed in every criminal trial. The court that hears the case does not officially make the accusation. Rather, the accusation is made by an accuser, such as a procurator, civic prosecutor, or victim, who is also a party to the case. The defendant (the accused, under indictment) is the other party, defending himself against the accusation, personally and with the assistance of counsel. The court decides the case. Thus, the basic procedural functions are divided among the court and the parties to the case.

In part because of adversary procedure, criminal cases can be decided justly and fairly, the true facts of the case established, and the rights of all parties protected. Adversary procedure enables the court, in its investigation of the case, to hear, before passing sentence, all evidence pro and contra the accusation and to consider all the circumstances in the case, both aggravating and extenuating.

In a Soviet civil trial, adversary procedure is likewise followed. The entire trial takes the form of a contest between parties—the plaintiff and the defendant, both of whom present their case personally or with the help of counsel. Each party provides the court with evidence and explanations in support of its claims and objections; each has equal procedural rights. The court does not content itself with the materials and explanations presented; rather, it must take all steps provided for in law in order to obtain a comprehensive, full, and objective account of the real circumstances of the case and to make clear the rights and obligations of all parties.

In the law of the bourgeois states, adversary procedure is proclaimed as one of the democratic principles of the judicial process. However, complex court procedures and the de facto inequality of the parties make it difficult for the principle to be realized in practice and, in a trial, confer the advantage on the representatives of the ruling class.

M. S. STROGOVICH

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California was the first state to abandon the adversary procedure for divorce, where one partner had to prove the other at fault for marriage failure.
While Langbein certainly identifies the development of adversary procedure as a precipitating event that encouraged the establishment of evidence law, he also unequivocally endorses the explanatory principle of jury control.
194) Adversary procedure is governed by a complex network of formal rules, which the judge is responsible for enforcing impartially against the parties.
196) Frequently, proponents claim that adversary procedure is the surest method of arriving at the truth about factual disputes.
207) Not surprisingly, adversary procedure has been criticized for being insufficiently committed to, and insufficiently likely to result in, the discovery of truth.
209) First, adversary procedure is more advantageous to the wealthy because the results of litigation often depend on the skill level of the lawyers the parties can afford to pay and the exhaustiveness of the factual inquiries they can afford to make.
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