The Adversarial system of criminal procedure
The Adversarial system of criminal procedure

By Chrispin Bosire

I consider it proper to note from this very first instance that this article does not seek to vilify or malign the nature of the adversarial system of criminal procedure as adopted by our Kenyan Legal System and especially through our courts. The primary and most fundamental objective of this article is to search the unsearched issues that arise out of the process of the adversarial system of trial, more specifically concerning criminal cases.

While the adversarial system of criminal procedure is important, there has been a relatively little study of the premise underlying this system, that is; a foundational axiom so embedded in our thought processes and actions that we build on it without questioning why we use this footing. The use of an adversarial system to generate decisions about disputes is a large subject that requires scholarly research in order to either justify or critique, hence this article seeks to provoke scholarly debate about the topic.

There are several features that determine the nature of the adversarial system of criminal procedure. These features include:

The roles of the judges, decision-makers or even judicial officers (active or passive).

The role of the parties or party representatives in controlling the direction of the trial.

The manner in which “facts” are proven.

The obligations of the parties to one another.

Informational and decisional side constraints which directly or indirectly skew final decision-making

The Adversarial system of criminal procedure can be compared to other systems, that is inquisitorial and hybrid systems of trial, based on the determinate features above, some of which are intimately related, and on the ways, the system fills and combines these variables.



The best that the government or legal system can do is present a criminal dispute resolution procedure that is at least fair to both the state and the accused. The procedural elements of party control and party commitment to winning are viewed as conducive to fairness because they lead to a potentially equal contest before an unbiased decision-maker, in this case, a trial magistrate, judge or any other person executing a judicial function. In this scheme, the evidentiary rules are necessary to ensure that the judicial authority will not be unduly influenced by suspect evidence.

The proper and very strict form of the trial theory is to the effect that trials are not a good way to discover the truth, because the truth of what actually happened is probably unknowable. In a criminal trial situation, nonetheless, there is a dispute between the state and an individual that needs to be resolved. Broader fairness considerations arguably account for the unilateral discovery rules and the privilege against self-incrimination, both of which are essential to offset the government’s resource advantages and to ensure that the government plays fairly by preventing coerced admissions or confessions.

Fair decision theory alone cannot account for the adversarial nature of the system, because it is possible to conceive of fair decision procedures which do not involve adversariness or at least the degree of adversariness found in our criminal trial system, for instance, the European inquisitorial or investigative system of criminal trial is thought to be fair, but not adversarial.

Let us not pretend that our system of justice is entirely geared towards dispute resolution. It is nothing of the kind. It is a contest between two sides played according to certain rules, and if the dispute happens to be resolved as a result of the contest, then that is sheer coincidence. It is not something with which the contestants are concerned. They are concerned only that the game should be played according to the rules and rely on the quality of arguments.

There is some evidence, however, that party control of adversarial proceedings gives affected participants a greater sense of fairness and perhaps a greater willingness to accept the outcome. Nonetheless, party control is but one feature of the adversarial system of criminal trial, and a psychological explanation of party control does not explain other criminal trial features such as the privilege against self-incrimination or the burden of proof beyond a reasonable doubt.

These features also cannot be explained by fairness considerations. Leaving aside coercion or other abuses external to trial, nothing seems inherently unfair about requiring a defendant to give testimony, requiring criminal cases to be tried before a judge or panel of judges, admitting some of the evidence that now is excluded, or using a different burden of proof. For these reasons, it is clear that something more than simple fairness is the operative determinant of the structure of criminal trials. Plainly, the criminal defendant has a set of rights which may interfere with truth-finding and which go beyond immediate fairness considerations.

The view presented here is an elaboration of the notion that the adversarial system is a system of proof rather than a system of discovery of what actually happened. There are occasional undeveloped references to this idea in the literature.

It is not as if tools for determining truth are not adequate, but that the truth may not be ascertainable by any means in the form we that the system seeks it. What the adversarial system tries to measure sometimes may be indefinable. For even the devil, does not know man’s intentions, so it is not accurate to opine that the purpose that the adversarial system serves is mere dispute resolution as in some instances the guilty party escapes liability.

There are many rules and one of them is to the effect that some questions which might provide a shortcut to the truth are not allowed to be asked at one point in time before or during the trial, and those that are asked are not allowed to be answered. The result is that verdicts are often reached haphazardly for the wrong reasons, in spite of the evidence, and may or may not coincide with dispute resolution. The tragedy of our courts is that means have come to count more than ends, form more than content and so does appearance more than reality.


The truth is best discovered by powerful statements on both sides of a question. The simplest formulation of this view assumes that the principal issue of an adversarial trial is to discover “what happened,” that is, historical fact, and that a competitive contest over what happened is the best way to accomplish this goal. This view is easy to debunk as an unequivocal explanation of an adversarial criminal trial…..READ FULL ARTICLE ON THE APRIL EDITION



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