Among the most commonly used legal systems is the adversarial system. Each party, or adversary, is represented by a lawyer or advocate in an adversarial system. An impartial party hears each party’s side. Based on the information provided by each adversary, the impartial party determines the case’s outcome.

Essentially, an adversary system resolves disputes by presenting conflicting views of facts and law to an impartial and relatively passive arbiter who decides which side wins. In the United States, however, the phrase “adversary system” refers to the American system for the administration of justice. This system was constitutionalized by the Framers and elaborated by the Supreme Court.

As a result, the adversary system is much more than just a simple dispute resolution model. An individual’s dignity is protected and recognized in a free society by a core of basic rights.

As part of the adversary system, individuals are entitled to personal autonomy, effective legal assistance, equal protection of the laws, trial by jury, the right to call and confront witnesses, and the right to require the government to prove guilt beyond a reasonable doubt.

Furthermore, these rights, as well as others, are encompassed in the fundamental concept that no person may be deprived of their life, liberty, or property without due process of law- a concept closely associated with the adversary system.

What Other Legal Systems Exist?

Inquisitorial systems are also commonly used. Under this system, a panel of individuals or a judge is entrusted with investigating the civil or criminal conflict. The panel or judge determines the verdict following an investigation.

Generally, this system is used by civil law systems, although some common law countries also use it. For example, jurisdictions in the United States use an inquisitorial system for traffic violations.

How Does the U.S. System Differ from the European System?

The U.S. system differs from the European system in several key ways:

  • The United States Adversarial Legal System: The United States legal system developed into an adversarial one. A lawyer represents both the plaintiff and defendant in civil cases and the prosecution and defendant in criminal cases in the United States. As each side presents its case, the judge and jury remain neutral parties.
  • The European Inquisitorial System: The inquisitorial system developed in Europe relies heavily on the judge to make legal arguments and to weigh and balance the evidence. As a result of this system, the judge can develop their own ideas about the case’s correct outcome.

What Is Due Process?

The Constitution guarantees certain rights to the citizens of this country. Federal and state governments are prohibited from doing certain things to their citizens under the 5th and 14th Amendments of the Constitution.

Both clauses prohibit the government from depriving its citizens of life, freedom, and property. The 5th Amendment prohibits the federal government from doing so, but the 14th Amendment prohibits the states from doing so.

Defendants can refuse to testify against themselves under the 5th Amendment in criminal cases. This is often referred to as “pleading the Fifth.” It also prohibits a person from being tried twice for the same crime (double jeopardy).

Whenever states pass laws that negatively impact the constitutional rights of their citizens, such as voting, marrying, or enjoying the freedom of speech, the 14th Amendment is frequently implicated.

How Is Substantive Different From Procedural Due Process?

Frequently litigated in both federal and state courts, these clauses describe the due process as substantive and procedural. In a nutshell, substantive due process guarantees that people will continue to enjoy certain fundamental rights and be fairly treated by the government. As a result, the 14th Amendment is sometimes referred to as the Equal Protection Clause.

As part of procedural due process, the government must take certain timely precautions before taking actions that may violate substantive rights. There may be a warning, a hearing, or a trial as part of these precautions.

How Is Substantive Due Process Applied?

New laws often raise substantive due process issues. A due process claim may arise if a law unfairly impacts certain groups or individuals. A state passes a law requiring voters to present three pieces of identification to vote, for example.

Voting is a guaranteed right, and there is no doubt that the government is involved here. A court’s determination of whether a due process violation has occurred will depend on the right at issue and the government’s interests.

It may be sufficient for a court to uphold the law if the government argues that identification is necessary to prevent voter fraud. It is possible, however, that the court may consider the requirement of three pieces of identification rather than just one to be less compelling.

Another example is a state that prohibits its students from studying foreign languages in school. According to the state, it wants to ensure that its students learn English. The court will examine the state’s interest to determine whether substantive due process has been violated. Parents’ liberty to direct their children’s education will be balanced against the state’s interests.

How is Procedural Due Process Applied?

Procedural due process must be followed before the government takes away a citizen’s life, liberty, or property. Suppose a state passes a law requiring the indefinite detention of any adult in mental distress–without notice or hearing–even in the absence of an emergency. Considering these facts, a court may conclude that the government violated the adult detainee’s right to be free from government interference.

The principal of a local public school suspends Sue for smoking in the bathroom. Her parents challenged her suspension because the school failed to allow Sue to be heard before she was suspended. Sue’s parents argue that she wants to continue her education, but she didn’t get a chance to be heard, so now she cannot do that.

According to the school, it is responsible for protecting its students from second-hand smoke and following fire safety procedures. Both parties are clearly interested in what happened, and the court will have to consider the burden placed on the school by providing notice.

The court will apply a balancing test in each of the above examples to determine whether procedural due process was violated. A court will evaluate the plaintiff’s and state’s interests, the value of adding procedural safeguards, and the burden on the state to impose the safeguards. A court is more likely to find procedural safeguards are necessary for limiting the deprivation if the interest is important.

What Happens If My Due Process Has Been Violated?

A court of law will likely overturn or strike down a ruling if it has been determined that your due process has been violated. Depending on the circumstances, the lawsuit may be brought again, but this time they will strictly adhere to due process requirements.

Remember, your due process can only be violated by a government entity. Suppose your neighbor did not give you enough notice (or any notice) before cutting down your tree. In that case, they are not guilty of violating your due process. Rather, they would be liable for destroying your property or any other civil, personal injury claim.

Do I Need to Hire an Attorney?

Since the United States system is adversarial, the importance of a good civil, criminal, or government lawyer cannot be overemphasized. Talented lawyers can convince jurors that their legal arguments are correct.