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Role And Functions Of The Experts In Adversarial Legal System
Experts have their own battle and concept of ideas in the arena of court proceedings. All of them have with familiarity, knowledge, understanding and skills to provide a great attack in the court proceedings (Freckelton, 2005 and Schwartz, 2005). Experts are appointed in to two different parties and choose the best point-of-views in the issue. The jurors permit to call the opposing parties their own experts and in practice, the actions or the degree of expertise is highly required with the technical or scientific training. The other experts are free to comment on the other party’s report, but the ultimate control over the procedure retains in the tribunal (Schwartz, 2005).
The person involved in the court process and their opinion must be entirely of partially based on their scope of knowledge. Experts’ one function is to distinguish the opinions form the fact on which the evidences are based. The report of an expert must establish a solid reasoning of information in which it will be judges as accepted or rejected. Solely, the role of an expert is based on her or his own knowledge and not from the opinion of others (Freckelton, 2005).
Opinion On The Issue
With despite to the issues of adversarial bias, the proposal for its elimination is welcome since it doesn’t play any useful role in expert investigations. But in truth, the system cannot eliminate all the existing bias because the opposing bias pertinent to the experts who is an allied in to either party may be affected their own theory of bias.
On the other hand, experts of the opposing parties are provided their equal rights to cross examine and criticize the admissibility of the evidences presented in court proceeding. For some expert opinions, the use of bias is an added motivational factor that helps establish advantage against the opposing party.
The ground of adversarial system is the subject in the danger of bias. Experts prepared their best position in the case, thus leading them to do further bias during the process. The particular evidences where presented and with the court proceedings, are subject to the cross examination. The relevant information might be distorted and this might alter the decision of the jurors. The advantage of the arbitration in International disputes has been stated and pointed out that it offers hope of reducing the biases and the prospect of parallel lawsuits in different countries (Schwartz, 2005).
Adversarial system promotes consensus judgment but is also plagued with many challenges. Expert evidence’s has its worse quality in inquisitorial systems because it is infrequently challenged by the defense. Notably, the other system, such as the French system, might work better if the lawyer on the side of defense questions the expert evidence more vigorously, but it is indeed difficult to change one element of the system in other way. The inquisitional set-up seems to promote a culture in which the defense does not play a very active role.
A role of an expert in the adversarial system has its own code of practice. The precise role and responsibilities should be clarified. The lack of clear standards also leave experts are open to the manipulation by lawyers and the strong foundation of the adversarial bias.
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In Australian Context, the legal system’s tradition and general rule with regards to the opinion is inadmissible. Not unless, the opinion evidence is formulated through the special skill or knowledge of an expert. In many instances, the evidence is admissible if there is previous study done in order to achieve the result and attain the knowledge of it (Hughes and Danne, 2006).
Changes On Role Of An Expert (Inquisitorial Tribunal V. Adversarial System)
The Inquisitorial Tribunals take the initiative in ascertaining the facts and the law. Their responsibility and focus is to investigate and examine the facts on the court procedures, where the litigation and arbitration were emphasized, or even criticized by the opposing party. However, the Adversarial System allows both countries in presenting the evidences of truths that were tested and cross-examined in the consent of the other.
Both tribunal and court performs at different roles in ruling on motions, admitting the evidences, handling the objections and instructing the jury (Schwartz, 2005). The tribunal is permitted in initiative and harmonizing the approach in cross-examination and any redirected examination in putting the witnesses into questions. The tribunal members may still investigate matters and the parties are allowed to present the case without any intervention from the tribunal. All in all, the process serves a balanced mechanism for the lawyers.
In adversarial system, the rule is been tagged as a democratic tradition and assumes that the admissibility of the evidences as well as the witnesses are founded with expertise, (Champagne, et al, 2001). The role of the judge, jury, lawyers, and experts are emphasized in the adversarial process and assumed that the parties are skilled enough to drive their own advocacies in investigating and presenting the evidences and challenging the other (Shuman and Champagne, 1997).
Champagne, A., et al., 2001. Are Court-Appointed Experts the Solution to the Problems of Expert Testimony? Judicature, No. 84, pp. 178-183. Also [Online] Available at: http://www.ahrq.gov/clinic/jhppl/shuman3.htm. [Accessed 11 Dec 2009].
Freckelton, I., 2005. Financial Evidence: Legal Issues. Freckelton & Shelby – Expert Evidence; Law, Practice, Procedure and Advocacy, 3rd Ed. Lawbook Co., Pyrmont, NSW, pp 621-623.
Hughes, A., & Danne, A., 2006. Expert opinion Evidence in Australia. Product Liability IADC Newsletter (International Association of Defense Counsel), No. 4. [Online] Available at: www.iadclaw.orgs/Prod_November_4. [Accessed 11 Dec 2009].
Schwartz, T., (Ed.) 2005. Keeping Your Trade Secrets, Trust the Leaders, No. 11. [Online] Available at: http://www.sgrlaw.com/dictator/media/812/leaders_issue_11 [Accessed 11 Dec 2009].
Shuman, D., & Champagne, A., 1997. Removing the People from the Legal Process: The Rhetoric and Research on Judicial Selection and Juries. Psychology, Public Policy, and Law, Vol. 3, pp. 242-258. Also [Online] Available at: http://www.ahrq.gov/clinic/jhppl/shuman3.htm. [Accessed 11 Dec 2009].
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