An Inconvenient Truth: Epistemic Flaws in the Adversarial Legal Tradition


Alan Cusack

Alan Cusack is a PhD candidate and IRC Scholar in the School of Law, UCC. He is a member of the Centre for Criminal Justice and Human Rights at University College Cork and The Institute for Social Sciences in the 21st Century (ISS21) at University College Cork. His research is in the area of access to justice for victims of crime with disabilities. Specifically, Alan’s research assesses how traditional adherence to normative adversarial processes at each of the pre-trial, trial and post-trial stages of the Irish justice system inhibits participation by victims of crime with disabilities.


According to Damaska an adversarial model of justice is characterised by an entrenched value system which comprises “a relatively passive tribunal that ideally comprises both judge and jury; the presentation of evidence by the parties through their lawyers who proceed by direct questioning and cross-examination…a presumption that the defendant is innocent until proven guilty; and the principle that he cannot be forced to testify against himself” (1983: 25). Within this formulation, three fundamental principles can be identified which have long been considered – not only by Damaska but by our wider Anglo-American legal community – as essential to the pursuit of adversarial justice, namely: the principle of party autonomy and judicial passivity, the principle of orality and the principle of fair procedures. Significantly however, each of these principles accommodate fatal epistemic flaws which, although rarely admitted, fundamentally inhibit the system’s efficiency in ascertaining the truth and restrict its accessibility to those select quarters of society who meet its normative demands.


1. The Epistemic Flaw in the Principle of Party Autonomy and Judicial Passivity

It is a fundamental tenet of adversarial ideology that parties enjoy private autonomy in the vindication of their legal rights. Indeed, within the Anglo-American legal tradition parties enjoy almost unfettered freedom in initiating, investigating and presenting legal cases before our courts. The greatest courtroom casualty within this autonomous environment is the truth. With success being measured by the satisfaction of a client, not by the announcement of a true verdict, advocates are actively encouraged to tailor the available evidence in the interest of strengthening their client’s case. Thus not only do we find advocates wilfully concealing inaccuracies in the evidence which supports their cause, but we also find them actively supressing any evidence which might be disruptive to their client.

The autonomy of the parties starkly contrasts with the investigative passivity of the judiciary. Unlike their European counterparts, members of the Anglo-American judiciary occupy a reactionary role with no positive fact-finding mandate. The jury occupies a similarly passive position. Indeed famously described by Glanville William as “a group of twelve men of average ignorance” (1963: 271), the jury is faced with the unenviable task of organising “an incoherent mass of data…into a story which they can understand” without the support of a pro-active investigative jurisdiction (Bennett and Feldman, 1981: 10).

2. The Epistemic Flaw in the Principle of Orality

Every aspect of the adversarial model is strategically designed around the fundamental notion that the truth can best be achieved through the immediate observation of a testimonial account in open court. According to Bennett and Feldman however, “the plausibility of stories has little to do with their actual truth status” (1981: 75). Placing faith in the revealing attributes of behavioural performance therefore risks, not only accepting the inaccurate testimony of an accomplished perjurer but also rejecting the honest account of an intimidated witness.

Moreover, in a further epistemological failing, this classic construction of orality fails to appreciate the inherent fallibility of witnesses and the formative influence which advocates enjoy in shaping the courtroom narrative. In essence, the adversarial model’s predication upon viva voce testimony presupposes the capacity of witnesses to deliver a flawless account of events. Even honest witnesses, however, can tender inaccurate testimony arising from an erroneous observation or an ill-conceived recollection of events. Similarly, it must be appreciated that “[o]ften a statement owes as much to the officer’s controlling hand as to the witness’s actual memory” (Wolchover and Heaton-Armstrong, 1997: 857). Thus, from their calculated employment of the pre-trial interview to shift a witness’s recollection of events to their abuse of the leading question protocol to cast doubt on peripheral details, advocates constantly compete to re-shape the courtroom narrative in a design which best supports their client’s case.

Significantly, the centrality of oral testimony also invites an inherent bias against those who “lack shared cognitive routines for presenting evidence in story-coded forms” (Bennett and Feldman, 1981: 171). The root for such inequality of treatment lies in a long-accepted, adversarial assumption that “all honest witnesses are equally capable of holding their own against [cross-examination]”. Significantly however, “people are not uniformly articulate, confident and emotionally balanced” (McEwan, 1998: 15). Within this flawed epistemological landscape the forgotten victims are those members of society “who cannot communicate in commonly accepted ways about their actions” (Bennett and Feldman, 1981: 168).

3. The Epistemic Flaw in the Principle of Fair Procedures

The adversarial model has evolved in a design which accommodates a rich artillery of exclusionary evidential rules. Thus, from the common law privilege against self-incrimination to the rules prohibiting hearsay statements and character evidence, the adversarial trial is predicated upon a series of procedural protocols which insist that courtroom actors meet exacting evidential standards in delivering testimony. In prioritising, however, the exigencies of fair procedures the adversarial model naturally sacrifices a measure of fact-finding accuracy. In practical terms, this strict insistence on procedural rectitude reduces the adversarial trial to little more than a glorified sporting event wherein it is “perfectly acceptable that a party, perhaps in the right on the merits, “lose” on a technicality- if he violated the rules regulating the contest” (Damaska, 1973: 581).


Unlike our European counterparts who, in subscribing to an inquisitorial model, have openly affirmed their social commitment to uncovering the truth, we find that, within Anglo-American legal culture, the primary social objective of the legal system is to achieve a fair result through the application of a just process. This dedication to procedural rectitude is, however, epistemically flawed, cultivating substantive barriers to the truth-distilling enterprise which are re-enforced through the subtle interplay of the three adversarial principles.

Moreover, the centrality of oral testimony in the adversarial courtroom imposes significant obstacles upon vulnerable victims who, through their inability to construct a story, are “vulnerable to having truthful accounts of their actions rejected” (Bennett and Feldman, 1981: 171). Thus within this flawed epistemological landscape the truth is not the only casualty. The real victims are those members of society who, through procedural intimidation, cognitive impairment or testimonial anxiety suffer a communicational deficit which, not only prevents them from delivering a coherent narrative in court but also from expressing publically their frustration with the biased nature of the system in which they find themselves.