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The Drawbacks Of An Adversarial Legal System

Paul Sanders, Second Year LLB, raises some of the drawbacks of an adversarial legal system.

The Scottish criminal justice system is adversarial in nature, a system shared by many common law legal systems around the world. The Free Dictionary defines the adversarial system as one where ‘two or more opposing parties gather evidence and present the evidence, and their arguments, to a judge or jury… [who] knows nothing of the litigation until the parties present their cases’[1]. This is in contrast with an inquisitorial system, more commonly found on the continent, in which the judge is not removed from the investigation stage but ‘primarily responsible for supervising the gathering of evidence necessary to resolve the case. He or she actively steers the search for evidence and questions the witnesses’[2]. Although an adversarial system can be seen as desirable as it puts the prosecution and the defence on an equal footing[3], such a system clearly promotes the idea of a winner and a loser, whereas the inquisitorial system puts more of a focus on finding the objective truth. There are numerous drawbacks to the adversarial system, many of which undermine its usefulness in ensuring justice has been done, which could be corrected by incorporating aspects of an inquisitorial system.

This idea of a winner and a loser in the adversarial system creates some very negative legal constructs, such as the plea bargain, which is found in many adversarial systems. A plea bargain is a deal struck between the prosecutor and the defendant allowing for a more lenient charge or sentence in exchange for the defendant submitting a guilty plea. These are relatively unheard of in inquisitorial systems. They can be used as an extremely powerful coercive tool against the defendant, as ‘people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear.’[4] This fear is of state violence - physical force or imprisonment, on which the state has a monopoly[5]. The charge and sentence originally sought could be severe, in order to compel the defendant to plead guilty when offered a deal even though they are innocent, or to exploit financial weakness as poorer defendants may not be able to pay the legal fees needed for a potentially lengthy trial. A similar system exists in Scotland, although there is one key difference: there is no judicial involvement in pleas, so there is no guarantee of a reduced sentence. However, Du Plooy v. HM Advocate 2005 JC 1 established the practice of judges reducing a defendant’s sentence by a third where they submitted an early guilty plea. There is also the practice of ‘informal charge bargaining’, where the prosecutor will drop some charges if the defendant pleads guilty to others[6]. The use of plea bargains means that someone could be convicted as guilty on the basis of a plea, even if a jury would have found them innocent, suggesting that these bargains are often antithetical to justice and truth if used to compel an innocent defendant to plead guilty. This is done to secure a ‘win’ for the prosecution, which is not necessary with the inquisitorial method which is more about finding the facts.

One extremely concerning side-effect of plea bargains is the (alleged) existence of the prison-industrial complex, a term coined in America to describe the combined interest of the government and industry leaders in using methods like policing and imprisonment as ‘solutions’ to social and economic issues. One way this complex manifests itself is through imprisoning poor people, drug addicts, people of colour, and other marginalised groups of people for the dual purpose of removing them from the pool of voters, so that the ruling classes do not have to cater to their interests, and generating economic activity by allowing industry owners to profit through the rising use of contractors such as private security companies and private prisons. By threatening vulnerable defendants with state violence and therefore coercing them into plea bargaining, politicians remove them from the democratic electorate and deliver them to businessmen who profit from their imprisonment. The prison-industrial complex is exemplified in the US ‘kids for cash’ scandal[7], where two Pennsylvanian judges were found guilty of accepting bribes from the owner of two private juvenile detention facilities servicing the area, in exchange for imposing harsh sentences on juveniles who committed minor crimes, who would then be sent to said facilities. While this does not explicitly show coercion as such, it clearly shows the overlap of interests with the government-affiliated judges and the businessmen who stand to profit from the complex. This is one potential side effect of the adversarial system that has far-reaching implications for the whole of society.

There have also been concerns raised over the emotional damage caused to witnesses and victims in an adversarial system. The fierce opposition found in these systems requires the lawyers to attack witnesses on the stand to expose any holes in their testimony. In an inquisitorial system, witnesses, especially vulnerable ones, are questioned by a judge alone, who then passes on the evidence onto the jury when the case goes to a public trial. In one sexual offences case in Scotland in 2001, a trial collapsed when a boy ended up at risk of psychological damage after he and his sister were viciously cross-examined by many defence lawyers over a prolonged period of time[8]. This is not necessarily a legal problem but a flaw in the system as a whole, especially since the aggressive techniques used can jeopardise a whole trial and impede justice.

In contrast, the inquisitorial system seems a more fair and sympathetic way of deciding cases, although it is not without its flaws. The overlap of the prosecutor and the judge may improve neutrality, as it promotes the truth-seeking nature of the parties instead of any need to win the case, but equally this could be problematic due to a blurring of the separation of powers, and a potential lack of fairness as the deciding judge is inherently linked to the party bringing the action. However, by putting the emphasis on facts instead of winning or losing, they curb any competitive tendencies of their lawyers and help to focus their attention on discovering the truth. However, the inquisitorial system has its roots firmly in criminal law, and may not translate as well to other areas of law in Scotland, potentially meaning a confusing set of parallel legal systems if it was introduced here.

In conclusion, many of the features of the adversarial legal system result in a system that does not do as much to promote justice and fairness as it could. The inquisitorial system often results in a more just outcome, but some of its aspects are inferior to the adversarial system, which suggests that a hybrid system is necessary to ensure justice for all.


[1] The Free Dictionary by Farlex, available at:  (last accessed: 31/12/2014).

[2] Ibid.                                                      

[3] A. Ringnalda, ‘Inquisitorial or adversarial? The role of the Scottish prosecutor and special defences’ (2010) 6 (1) Utrecht Law Review 121.

[4] M. Yant, Presumed Guilty: When Innocent People Are Wrongly Convicted (New York, 1991) 172.

[5] M. Weber, ‘Politik als Beruf’ in Gesammelte Politische Schriften (Munich, 1921).

[6] F. Leverick, ‘Plea and Confession Bargaining in Scotland’ (2006) 10 (3) Electronic Journal of Comparative Law.

[7] ‘Despite Red Flags About Judges, a Kickback Scheme Flourished’, The New York Times (2009) available at: (last accessed: 31/12/2014).

[8] ‘Old Adversaries Die Hard’, BBC News (2003) available at: (last accessed 31/12/2014).

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