Fixed Fight or Free-For-All? An Empirical Study of Combativeness in the Adversary System of Justice

• NCJ Number: 78733
• Journal: British Journal of Law and Society Volume: 7 Dated: (Summer 1980) Pages: 36-60
• Author(s): B Danet; B Bogoch
• Date Published: 1980
• Length: 25 pages
• Publication Format: Article
• Language: English
• Country: United Kingdom
• Note: Earlier versions of this paper were presented at the International Conference on Language and Social Psychology, University of Bristol, 1979, Symposium on Language and Law, and at a conference of the Research Committee on the Sociology of Law, International Sociological Association, 1979.

Annotation

Recordings of six criminal trials held in the Superior Court of Boston in 1976 were analyzed to determine the combativeness of the questioning and objecting styles of both prosecutors and defense attorneys.

Abstract

The study was part of a research effort designed to assess the adversary system of Anglo-American justice. The literature on the adversary system suggested that three basic prerequisites exist for a successful system: highly combative parties, evenly matched parties, and an impartial decisionmaker. The six trials included two murder trials, two rape trials, and two assault and battery trials. All testimony from defendants, victims, and friends of victims was analyzed. Four measures of an attorney's combativeness were used: the number of questions asked, the coerciveness of the question forms, the extent to which questions focused on the defendant's actions, and the frequency of lawyers' objections during the other side's presentation of witnesses. Results showed that prosecutors were consistently more combative than defense attorneys; the more serious the offense, the more combative the prosecutors became. The prosecutors were especially combative on cross-examination. However, when objections were used as the index of combativeness, prosecutors were more combative on direct examination as conducted by defense attorneys. On the other hand, defense attorneys were rarely influenced by an offense and were always influenced less than were prosecutors. This finding could be the result either of equal effort in all cases or of lack of effort in the cases in which the prosecution tries harder to convict. Findings also indicate that the one judge studied was impartial with respect to the prosecutors and defense attorneys, except in rape cases. Findings reinforced the view that in practice the adversary system has some of the elements of a fixed fight. A comparison of the adversarial and inquisitorial trial systems, tables, and footnotes are provided.