Activity 1g

Question 1

The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of the criminal justice system to achieve the principles of justice requires students to write about relevant strengths and weaknesses. For this activity, students should aim to cover rules ofevidenceandprocedure.

A discussion may include the following points:

• The rules of evidence and procedure apply equally to both parties so one party is not advantaged at the expense of the other – rules of procedure give both parties an equal opportunity to present their cases. Cross-examination allows evidence to be tested to ensure that the burden and standard of proof are met and that the evidence is reliable – this gives the defendant greater access to justice, especially since they are entitled to examine every witness called by the prosecution. Rules of procedure make sure the trial flows more smoothly and allows parties to plan ahead, as they know what the stages and timetable will be – this gives the defendant greater access to justice because they can allocate their funds and resources.

However, complex rules can be manipulated by experienced parties, and are confusing for inexperienced parties and the jury – parties do not have equal access to justice when one understands the rules and the other does not (this is especially true when the prosecution is a repeat player who has been to court many times before, because the defendant often has not) – in order to properly use the court rules and procedures the accused must hire legal representation, and this can costs hundreds of thousands of dollars that most people simply do not have.

• The strict rules for the admissibility and inadmissibility of evidence ensure a fair hearing because all evidence must be relevant, reliable and legally-obtained – greater equality is achieved in the courtroom because evidence must have more probative than prejudicial value, so it is less likely to trigger prejudices against the defendant. Since evidence is heard in one continuous trial it is easier for the jury and parties to remember it, which should result in a fairer and more reliable verdict – it also means that the trial cannot be delayed indefinitely, which would cause increased stress for parties and possibly risk witnesses forgetting their evidence, both of which would decrease access to justice and fairness.

However, witnesses are only allowed to respond to the questions asked and cannot elaborate – this may result in some important evidence not being brought before the court, and reduce the fairness of the hearing. Witnesses can be intimidated by the formal proceedings in court and, as a result, not be able to provide reliable or strong evidence – this may unfairly affect the outcome of the case. Evidence is told witness-by-witness rather than in chronological order of what happened. This may make it more difficult for the jury to understand the course of events, and may make the verdict less reliable and therefore less fair. Furthermore, the trial cannot be paused midway through to collect more evidence – a party who is in the right may lose the case if they are not able to present all relevant evidence within the timetable set for trial – for instance, if important witnesses become unavailable, or if the prosecution does not uncover evidence until after they have ‘rested’ and handed control of the trial over to the defence – this can result in an unfair outcome where justice has not been achieved.

Question 2

The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to rules ofevidenceandprocedure, that the criminal justice system does achieve the principles of justice. In this case, ‘evaluating’ the ability of the criminal justice system to achieve the principles of justice requires students to write about relevant strengths and weaknesses.

An evaluation may include the following points:

• The rules of evidence and procedure apply equally to both parties so one party is not advantaged at the expense of the other – rules of procedure give both parties an equal opportunity to present their cases. Cross-examination allows evidence to be tested to ensure that the burden and standard of proof are met and that the evidence is reliable – this gives the defendant greater access to justice, especially since they are entitled to examine every witness called by the prosecution. Rules of procedure make sure the trial flows more smoothly and allows parties to plan ahead, as they know what the stages and timetable will be – this gives the defendant greater access to justice because they can allocate their funds and resources.

However, complex rules can be manipulated by experienced parties, and are confusing for inexperienced parties and the jury – parties do not have equal access to justice when one understands the rules and the other does not (this is especially true when the prosecution is a repeat player who has been to court many times before, because the defendant often has not) – in order to properly use the court rules and procedures the accused must hire legal representation, and this can costs hundreds of thousands of dollars that most people simply do not have.

• The strict rules for the admissibility and inadmissibility of evidence ensure a fair hearing because all evidence must be relevant, reliable and legally-obtained – greater equality is achieved in the courtroom because evidence must have more probative than prejudicial value, so it is less likely to trigger prejudices against the defendant. Since evidence is heard in one continuous trial it is easier for the jury and parties to remember it, which should result in a fairer and more reliable verdict – it also means that the trial cannot be delayed indefinitely, which would cause increased stress for parties and possibly risk witnesses forgetting their evidence, both of which would decrease access to justice and fairness.

However, witnesses are only allowed to respond to the questions asked and cannot elaborate – this may result in some important evidence not being brought before the court, and reduce the fairness of the hearing. Witnesses can be intimidated by the formal proceedings in court and, as a result, not be able to provide reliable or strong evidence – this may unfairly affect the outcome of the case. Evidence is told witness-by-witness rather than in chronological order of what happened. This may make it more difficult for the jury to understand the course of events, and may make the verdict less reliable and therefore less fair. Furthermore, the trial cannot be paused midway through to collect more evidence – a party who is in the right may lose the case if they are not able to present all relevant evidence within the timetable set for trial – for instance, if important witnesses become unavailable, or if the prosecution does not uncover evidence until after they have ‘rested’ and handed control of the trial over to the defence – this can result in an unfair outcome where justice has not been achieved.