We use cookies to give you the best experience possible. By continuing we’ll assume you’re on board with our cookie policy

Check Writers' Offers

What's Your Topic?

Hire a Professional Writer Now

The input space is limited by 250 symbols

What's Your Deadline?

Choose 3 Hours or More.
2/4 steps

How Many Pages?

3/4 steps

Sign Up and Get Writers' Offers

"You must agree to out terms of services and privacy policy"
Get Offer

Injustice in the Adversarial System

Paper type: Essay
Pages: 14 (3280 words)
Categories: ,Law,Society
Downloads: 4
Views: 513

Donald Black went over in his book The Habits of Law, when a society begins to grow and end up being more complicated so does its legal system. The United States uses a system that might no longer be fit for managing all the complex issues it is confronted with. Society has come to discover through the justice system that reality is very difficult to find. The nature of the adversarial procedure might prevent it from reaching the true objective of every legal system: justice.

This composing argues that the system in place now is not the appropriate one for the stage society is in now. The adversarial procedure in place does not search for the core values of “Justice” and “Fact”; its insufficiencies create errors in the legal system. The legal system ought to eliminate its value of “winning at all cost” and the methods it utilizes to achieve this result. This paper will not only shed light on the flaws in the legal system, however present other structures that may be much better suited for the present phase of society.


A few quick critiques of the adversarial process include that throughout a trial procedure both sides are given the chance to present realities to the jury or judge, this permits lawyers to keep evidence and benefit the side they represent. This puzzles the courts instead of illuminating the fact. Cases such as this ought to not have the ability to pertain to a guilty or not guilty verdict, because guilt can not be shown with a degree of precision (Meadow, 1996). Stratification in law does lead to inequality and perpetuates oppression in society.

The procedure that is utilized in our criminal justice system has the capability to result in a false confession and produce skepticism in the system. Bias in our legal system does lead to oppression. All of these factors do create oppression in our legal system by sending out innocent people to jail and/or by letting convicted felons free. There are many theories in how to resolve the issues with the adversarial process and the legal system in general, but society needs to alter the method it reasons before anything can really change.

History of Common Law and the Adversarial Process

To better understand the adversarial process it must first explain through its history and origins. Common law practice developed the adversarial process; England adopted common law and made its practice known throughout the world. Legislators began codifying the law, this later became common law. It was written so that it could be interpreted by the court system. When the courts make a decision in how that law is to be applied it is preserved, and able to be used as a guideline for other cases of the same nature. This proved to be a problem, decisions made by judges were based on the customs of the time period, which became rigid and did not easily allow for change (Cantor, 1997). The English form of common law prohibited representation in court however, during the eighteenth century some courts where beginning to allow legal representation in English common law.

Eventually as time progressed, the role legal representation, lawyers, would grow and be more influential in society. The part the Lawyers played in the court system would eventually be the aspect that separated the adversarial process implemented today in the United States from the processes in England. Law became more and more complex so the use of lawyers or professionals of the law was essential in American law making. New research by Randolph N. Jonakait, New York Law School professor, suggests that the United States adopted an adversarial process that somewhat resembled the English model at the time.

Besides the already mention use of lawyers, the U.S differed greatly from England, during the 18th century; America had prosecution with a public defender present in the court room compared to no legal representation for the accused in the English model. Also in New Jersey around the same time period, attorneys usually appeared for the prosecution and the defense which in England was rarely practiced. These findings demonstrate that the United States was a forerunner in the creation of the adversarial process that is present today (Jonakait, 2009).

Search for Truth:

Lawyers and Their Tactics

One of the main concepts of the adversarial system is the oppositional presentation of facts. The belief behind this is it will discover all truths to the matter. This leads to the conclusion of the first flaw: that realistically everyone involved in the case is not in search of the truth. “Lawyers are more apt to hide the evidence that is not favorable to their side regardless of whether it would prove the innocence or guilt of the person on trial” (Schroeder, 2012). Clients hire lawyers to win; the economic state of the client is directly related to the skill level of the lawyer they can afford. Lawyers who are more expensive will use any tactics necessary to ensure a win.

The search for truth is not a key value; it’s keeping your client pleased, being the defendant or the state. Attorneys are known to use questionable tactics so that they have the best possibility of winning their case. These tactics include: creating doubt in the jury of guilt or innocence, or even by hiding evidence from the jurors. The search for truth and the execution of justice cannot be fully performed if lawyers proceed to use unethical tactics.

Solutions to the Hiding of Evidence

A purposed solution to hiding evidence can be demonstrated with a value demonstrated from the inquisitorial system, everyone in the court room works together in search for the truth and justice. The judges, or investigative magistrate, are trained in their profession, taking specific schooling about law making them a vital resource to the legal system. While court is proceeding the judge is allowed to ask questions to keep a case in order. Using a system that does not glorify winning would help the hindering of evidence and other tactics being eradicated form the court room. Although, one flaw with this system is the judge is granted too much power and control over the proceeding, more justice is still found here searching for truth.

Stratification in Law

It is proven that “once arrested, black and minority defendants are fare worse in the criminal justice system than their white counter parts” (Westervely & Humphrey, 115, 2008). This is due to racial stratification in law and a bias based on race in convictions. Instrumentalist would say law is used to dominate groups, and is structured so that it can benefit certain groups by disadvantaging other groups, by allowing this to happen it perpetuates inequality (Bucher, 2012). Many minorities are unable to pay for legal representation; in this situation the courts provide representation for them. This disadvantages minority individuals in low social class because they lack resources to secure a good lawyer, while high social status clients are able to easily obtain skilled lawyers.

This perpetuates stratification because upper class individuals can evade the penalties of the legal system, unlike lower class individuals who cannot afford strong legal representation (Vago, 2012). Marxist theorists would confirm that laws serve the interest of the upper class, and because they use them like a tool, keep the upper class in power. This reinforces inequality in society through the criminal justice system, because the upper class will always be able to have access to more resources they will also always use those resources against the lower class (Bucher, 2012).

Process in Criminal Justice

Is Justice Served?

The pressure felt in a case created by media and the public eye have the ability to cause investigations to be sped up. The endangers the adversarial process to make mistakes and possibly out of convenience and pressure convict the first person they think committed the crime. Once police officers make an arrest they tend to not pursue any other possible leads until the person they have in custody is proven to be innocent. This hurts the search for truth because officers become close minded and search only for evidence to convict that individual. Another factor that can deter the search for truth is false confessions. False confessions, among other factors, are commonly created due to unethical interrogation tactics or confused eye witnesses testimony.

“A confession is one of the most powerful pieces of evidence that can be presented in court” (Westervely & Humphrey, 36, 2008). Even if the confession is false, juries have been known to take into consideration testimony even when told not to. False confessions are usually given by suspects who are coerced, confused, have doubt in-self, or shame. All this can be attributed to the psychological games used by interrogators, intentional or unintentional (Gudjonsson, 1992). Can true justice be served when police use unethical tactics to get their confession? This is a question scholars who study ethics have pondered with for decades.

Bias in Law

There are many principles to consider when a jury is deciding a verdict. Racial beliefs, media and number of factors can influence a jury’s verdict (David F. Hall, 1984). Since each individual interprets the process of the trial differently it greatly influences the decision of case. The way society is socialized leads to certain bias to people of different races, genders, sexuality, and backgrounds. These factors greatly influence a cases outcome, even though lawyers are allowed to select their jury it is impossible to know each person individually (Albonetti and Hagan, 1982). In common law, legislature creates the laws that are written down and left for interpretation by the judges of the court, this is called statutory interpretation (Bucher, 2012).

The strength of this system of law is the ability that law has to change; downfall is that it leaves room for bias in the interpretation of law. Some scholars suggest that law and the legal system is patriarchal. The feminist legal theory suggests that the legal system is male dominated and perpetuates gender discrimination (Bucher, 2012). Language can be biased in law; the United States suffers from this weakness. In the Declaration of Independence biased language is evident. “All Men Are Created Equal” a line from the Declaration of independence has brought forth discussion and conflict because of biases behind the words.

Women have fought for their rights to be considered equal because society takes the patriarchal documents literal, progress is slowly made. Everything, including law, can be interpreted differently, making the judge’s job detrimental to the court process. The discretion of the authority in the court system, although important, also creates inconsistency in the legal system. African Americans account for 49.4 percent of the 1.3 million Americans in prison (Westervely & Humphrey, 2008). Two different theories can explain the bias in society that explains the high population of African Americans. These theories are the Individual Explanation Theory and the Structural Explanation Theory.

Individual Explanation Theory

This theory focuses on the behavior and traits of those involved in a trial. Racism is a factor in explaining why an innocent person is tried. This happens because the adversarial system does not focus on searching for the truth and allows the jury to makes a decision on beliefs and prejudices of a certain race. Stereotyping is also included when a jury convicts someone on account of preconceived notions of a group (Westervely & Humphrey, 2008).

Structural Explanation Theory

This theory provides two explanations for the bias. The first is the Blalocks Power-Threat Hypothesis. The hypothesis states that the increase in minority conviction is due to whites trying to keep power and control over minority races by disadvantaging them. The second explanation states that the treatment of minorities in the criminal justice system is a reflection of societal beliefs. “Equality in the criminal justice system is not possible until everything else is equal” (Westervely & Humphrey, 128, 2008).

Plea-Bargains and its deficiencies

Due to the amount of offenders that go through the U.S. court systems prosecutors are more likely to use plea-bargains to settle cases quickly. “It is estimated that roughly 90-95 percent of all criminal convictions are arrived through plea–bargains” (Vago, 118). This tactic can be linked to stratification and inequality, when a person on trial does not have the finances for a good lawyer the assumption is that they will lose. This makes a plea-bargain more appealing, as it is the best option to avoid a longer sentence (Kipnis, 1976). “The Standing Committee on Legal Aid and Indigent Defendants summarized the state of representation as follows: “Overall, there is abundant evidence in this report that defense services for the poor are inadequately funded. As a result, millions of persons who have a constitutional right to counsel are denied effective legal representation”” (Mosteller, 2011).

This is another factor to cause change in the legal system so that truth can properly be found. The ability to plea-guilty hinders the search for truth and justice. In the inquisitorial system guilty pleas and plea-bargaining are not allowed so that the system can properly search for the truth. It does not give the accused rights, unlike the United States.

While in the United States the adversarial process gives the accused the ability to plead guilty for a lesser sentence which some would consider “soft” on crime. In the adversarial process after a confession is given, the investigation is typically over even if the individual is innocent. In the inquisitorial system a confession is not warranted since it is the duty of the court to come up with evidence and prove guilt (Berger, 1972).


With all this bias in our legal system this gives room for errors in justice. “An error in justice is any departure from an optimal outcome of justice for a criminal case” (Frost, 2004). There are two types of errors that can be described: systematic and random. Systematic is when there is an error within the law that consistently creates injustice. When a law is in enacted and it oppresses a certain group consistently this is systematic injustice. Random errors are created while criminal justice officials are enforcing the law and the error is sporadic (Frost, 2004). Both of these can create errors of due process, which is when the rights of the accused are violated. The first error is miscarriage of justice; an example of this is when an innocent man is convicted of a crime.

The second type of error of due process is error of impunity, when an error in the procedure of due process is committed and as a result guilty convict is set free. Both of these do create great mistrust in the legal system and deter people from getting involved within its legal processes (Sherman, 2002). This can lead to what Black was suggesting when he stated that law will shift back to a more primitive family based form of sanctions, because of mistrust in the authority that was supposed to protect them.


With new understandings of societal factors (race, gender, sexuality) the adversarial system needs to be revised so that it aids the search for truth or it will be blinded by these factors. Society has grown complex and so has its problems with in the legal system. The courts must come up with different resolutions for crimes and convictions, not just a “one size fits all solution”. In essence the adjudication system is not wrong, but the misuse of evidence and human error leads to mistakes. One might ask should we change the adversarial system entirely or fix the many flaws within the system.

The current process being used relies on the state (prosecutor) to determine if the court should or shouldn’t present the evidence accumulated from the crime, or if that would benefit the accused in some way. All evidence should be given to a neutral party, such as the court, and have the court system decide what should be done. This would remove the ability of the prosecutor to hide facts that could be essential to the investigation (Westervely & Humphrey, 2008).

In an ideal system the court should base their decision after learning all the facts, without any evidence withheld from either side. There can be a mixture of different processes, which can better achieve justice in a complex society. For example, a different process would be needed to determine if a dangerous criminal is guilty than that of finding parental rights. Forms such as the inquisitorial investigation, mediation, private problem-solving, group negotiating processes could be used to search for truth.


The adversarial systems values do not match what the goals of the system should be. In the ideal system restorative and rehabilitation justice would be utilized to the fullest in order to help the people going through the criminal justice process learn and become productive members of society. Society’s beliefs are that of retribution and vengeance. Society as a whole wants to see criminals punished for crimes that they feel where committed upon them. To completely change the beliefs of the criminal justice system, society needs to change its values from retribution and vengeance, to a form of justice that will help society instead of looking for revenge.

Values in the criminal justice system represent what that society believes in. The belief in winning shouldn’t be enforced, like the adversarial process has done, because it does not accomplish what the main goal of the criminal justice system is: to provide justice to the citizens of the country the system serves, along with the search for truth. The values of rehabilitation and restoration should be the foundation on which we build our new system. If this is done than our society will begin to help its self in creating a strong nation that is just and true.


Albonetti, Celesta and Hagan, John. Race, Class, and the Perception of Criminal Injustice in America. American Journal of Sociology, Vol. 88, No. 2 (Sep., 1982), pp. 329-355 Berger, Moise. The Case Against Plea-Bargaining. American Bar Association Journal. Vol 62.pg621.(1972) Black, Donald. The
Behavior of Law. The University of Michigan, Academic Press. 1976 Bucher, Jacob. Law and Society. Lectures. Baker University. 2012 Cantor, Norman F. Imagining the law: Common law and the foundations of the American legal system. HarperCollins Publishers (New York). 1997. David F. Hall et al., Post event Information and Changes in Recollection for a Natural Event, in Eyewitness Testimony: Psychological Perspectives124 (Gary L. Wells & Elizabeth F. Loftus eds., 1984) Frost, Brian. Errors of Justice: Nature, Sources, and Remedies. Press Syndicate of the University of Cambridge.2004. Gudjonsson, Gisli H. The psychology of interrogations, confessions and testimony. Wiley series in psychology of crime, policing and law. Oxford, England: John Wiley & Sons. (1992). xii 362 pp. Humphrey, John A. & Westervely, Saundra D. Wrongly Convicted: Perspectives on Failed Justice. Rutgers State University Press. 2008

Jonakait, Randolph N. The Rise of the American Adversary System: American Before England. New York Law School. Widner Law Review. V14.2009. Kipnis, Kenneth. Criminal Justice and the Negotiated Plea. The University of Chicago Press. Ethics , Vol. 86, No. 2 (Jan., 1976), pp. 93-106 Meadow, Carrie M. The Trouble with the Adversarial System in a Postmodern, Multicultural World. William and Mary Law Review. V.38. 1996. Merrill B. Hintikka & Jaakko Hintikka, How Can Language Be Sexist?, in Discovering Reality, supra note 31, at 139. Mosteller, Robert P. Failures of the American Adversarial System to Protect the Innocent and Conceptual Advantages in the Inquisitorial Design for Investigative Fairness.2011. University of North Carolina School of Law. Sherman, Lawrence W. Trust and Confidence in Criminal Justice. NIJ Journal, March (2002): 23-31. Vago, Steven. Law and Society. Pearson Education, Practice Hall.2012.

Cite this essay

Injustice in the Adversarial System. (2017, Apr 02). Retrieved from https://studymoose.com/injustice-in-the-adversarial-system-essay

How to Avoid Plagiarism
  • Use multiple resourses when assembling your essay
  • Use Plagiarism Checker to double check your essay
  • Get help from professional writers when not sure you can do it yourself
  • Do not copy and paste free to download essays
Get plagiarism free essay

Not Finding What You Need?

Search for essay samples now


Your Answer is very helpful for Us
Thank you a lot!