The Principles in an Adversarial System

In one line

Some of the fundamental principles belong to the adversarial method and would change with it, and some belong to the idea of a criminal law at all and would not.

In the wording a student can write in an exam: the fundamental principles of criminal jurisprudence divide into those that are consequences of the adversarial structure, in which two parties contest before a passive judge, and those that would survive any change of structure because they follow from the nature of criminal liability itself; the presumption of innocence, the burden on the prosecution, the standard of proof beyond reasonable doubt, the right of cross-examination and the strict rules of admissibility belong to the first class, while the principle of legality, the requirement of a guilty mind, the rule against double jeopardy and the requirement of an impartial tribunal belong to the second.

Why the question is asked this way

Because the two things are usually run together. A student who has learnt the principles as a list will present them as timeless truths, and MU's question tests whether he knows where they came from.

The Malimath Committee, whose chapter is in Module I, is the reason the question matters in India. Its central proposal was to import inquisitorial elements, and the objection to it was that some of the principles it proposed to modify are not adversarial decoration but the substance of the criminal law's legitimacy. Deciding which is which is the whole argument.

The principles that are adversarial in origin

The presumption of innocence, and the burden on the prosecution. In an adversarial contest somebody must go first and somebody must lose if nothing is proved. The rule that it is the State is a choice, and it is the choice the adversarial model makes. An inquisitorial system has a presumption of innocence too, but it works differently, because the court is not a party and does not bear a burden in the same sense.

Proof beyond reasonable doubt. A standard of proof is only needed where a fact-finder must decide between two competing accounts presented by parties. Continental systems speak instead of the judge's intime conviction, his inner conviction, which is a different formulation of a similar idea.

Cross-examination. The characteristic device of the adversarial trial. It is the party's tool, and where the judge does the questioning it has no equivalent.

The strict rules of admissibility. A passive judge who receives everything cannot separate the reliable from the unreliable, so the law must do it in advance by rules. A professional judge conducting his own enquiry is trusted to weigh what he hears, so continental systems have far looser rules.

And the right of silence in its strong form. Where the parties present the case, an accused who says nothing has simply not participated. Where the court investigates, his silence is a gap in the court's own enquiry, and several systems allow an inference from it.