Editing Adversarial system (section)

==Basic features==
Adversarial systems are considered to have three basic features. The first is a neutral decision-maker such as a judge or jury. The second is presentation of evidence in support of each party's case, usually by lawyers. The third is a highly
structured procedure.<ref name="Coughlan 1993">{{cite journal |last1=Coughlan |first1=Stephen G. |title=The "Adversary System": Rhetoric or Reality?* |journal=Canadian Journal of Law and Society |date=1993 |volume=8 |issue=2 |pages=139–170 |doi=10.1017/S0829320100003203|s2cid=147489274 }}</ref>

The [[rules of evidence]] are developed based upon the system of objections of adversaries and on what basis it may tend to prejudice the [[trier of fact]] which may be the judge or the jury. In a way the rules of evidence can function to give a judge limited inquisitorial powers as the judge may exclude evidence deemed to not be trustworthy, or irrelevant to the legal issue at hand.<ref name="Power 2012">{{cite journal |last1=Power |first1=Mark C |last2=Larocque |first2=Francois |last3=Bosse |first3=Darius |title=ConstitutionalLitigation, the Adversarial System and some of its Adverse Effects |journal=Review of Constitutional Studies |date=2012 |volume=17 |issue=2 |page=1 |url=https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/17RevConstStud1.pdf |access-date=11 January 2023}}</ref> Peter Murphy in his ''Practical Guide to Evidence'' recounts an instructive example. A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, "Am I never to hear the truth?" "No, my lord, merely the evidence", replied counsel.

===Parties===
[[Judge]]s in an adversarial system are impartial in ensuring the fair play of [[due process]], or [[fundamental justice]]. Such judges decide, often when called upon by counsel rather than of their own motion, what [[evidence (law)|evidence]] is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing [[judicial discretion]] would actually pave the way to a biased decision, rendering obsolete the judicial process in question&mdash;[[rule of law]] being illicitly subordinated by [[rule of man]] under such discriminating circumstances. Lord Devlin in ''The Judge'' said: "It can also be argued that two prejudiced searchers starting from opposite ends of the field will between them be less likely to miss anything than the impartial searcher starting at the middle."<ref>P Devlin, ''The Judge'' (Oxford University Press, 1970) 60-1</ref>

The right to [[counsel]] in criminal trials was initially not accepted in some adversarial systems. It was believed that the facts should speak for themselves, and that lawyers would just blur the matters. As a consequence, it was only in 1836 that England gave suspects of felonies the formal right to have legal counsel (the [[Prisoners' Counsel Act 1836]]), although in practice, English courts routinely allowed defendants to be represented by counsel from the mid-18th century. During the second half of the 18th century, advocates like [[William Garrow|Sir William Garrow]] and [[Thomas Erskine, 1st Baron Erskine]], helped usher in the adversarial court system used in most common law countries today. In the United States, however, personally retained counsel have had a right to appear in all federal criminal cases since the adoption of the [[United States Constitution]], and in state cases at least since the end of the [[American Civil War|civil war]], although nearly all provided this right in their state constitutions or laws much earlier. Appointment of counsel for indigent defendants was nearly universal in federal felony cases, though it varied considerably in state cases.<ref>{{cite web |url=https://www.law.cornell.edu/anncon/html/amdt6frag7_user.html#amdt6_hd36 |title=CRS/LII Annotated Constitution Sixth Amendment }}</ref> It was not until 1963 that the [[Supreme Court of the United States|U.S. Supreme Court]] declared that legal counsel must be provided at the expense of the state for indigent felony defendants, under the federal Sixth Amendment, in state courts. See ''[[Gideon v. Wainwright]]'', {{ussc|372|335|1963}}.