Adversary System

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Black’s calls it “[a] procedural system, such as the Anglo American Legal System, involving active and unhindered parties contesting with each other to put forth a case before an independent decision maker.” According to Michael Asimow, “[t]he central precept of the adversary system is that the sharp clash of proofs presented by opposing lawyers, both zealously representing the interests of their clients, generates the information upon which a neutral and passive decision maker can most justly resolve a dispute.”* It is typically contrasted with the inquisitorial system of justice, in which the judge controls most of the pretrial and trial procedures, including framing the issues, supervising criminal investigations and discovery, questioning and cross-examining witnesses, and summarizing evidence. Understanding the adversary system’s importance at bail is critical, for initiation of adversary proceedings triggers certain rights, such as the right to counsel. In practice, judges comfortable operating in a system in which they are to oversee two sides in the adversarial clash of proofs often find that the typical bail hearing is overwhelmingly lopsided, many times operating with no defense counsel, and instead proceeding with defendants who are unprepared to argue issues concerning their pretrial release. The adversary system presupposes somewhat equal adversarial opponents, but bail hearings often lack that equality.

*Asimow, Popular Culture and the Adversary System, 40 Loy. L. A. L. Rev. 653 (2007).

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