rstuart, I'd argue that they're not so necessary. At least not in this form.

The inquisitorial model used by the Germans and the Japanese has a lower rate of wrongful imprisonment, is far cheaper and doesn't take nearly as long to resolve cases.

And yet, I don't see any public debates about why we persist with the adversarial system.

The simple truth is that given the choice between a system which is highly profitable for lawyers and one that is not, most lawyers, unsurprisingly, opt for the former. In fact, they don't even deign to discuss the issue.

Hence my view that the wolves are running the henhouse.

TurnRightThenLeft: "And yet, I don't see any public debates about why we persist with the adversarial system."

That is an interesting remark - so I did a little reading about the German court system. This seemed good: http://www.howtogermany.com/pages/legal.html

A few points stood out.

> In the US it is necessary to spell out everything in a contract. The rule in German law is: "a short contract is a good contract." For example ... there may be nothing in the lease dealing with notice periods, renovations required or ...

What a dammed good idea!

> There is no such thing as a jury trial in Germany

This is probably why they get more consistent outcomes. However, it has a downside. There is no point passing a law here if most juries won't convict under it. Judges on the other hand are noted for implementing the law as it is written. I like our juries.

> Formal pleas of "guilty" or "not guilty" do not exist in German trials.

When you said it was cheaper, did you take into account the vast majority of criminal cases here do plead guilty and over very quickly without wasting time (or a jury)?

> In a German trial, the judge, not the defense counsel or the prosecutor, obtains the testimony of the witnesses.

This is the reason you say things run faster and are cheaper? It seems like it could be, and doesn't seem like a bad idea. At least it doesn't to me, who knows nothing about it.

> victims of an offense has the right to participate in the trial as intervenors or private prosecutors

This seems better than a "victim statement".

> Attorney fees depend on the length of the trial and the complexity of the case. They can be quite high if the trial takes more than a day, or if representation is by an attorney of high repute.

Some things never change, it seems. No mention of silks though. That must save money. I have never understood why we need two sets of representatives in a court.

Some good points rstuart.

Regarding the juries, I'd say my main issue with how they're used in the adversarial system, is that we use them in order to have society's views represented, correct?

We expect them to be able to gauge when there is sufficient reasonable doubt to acquit someone. We expect them to weigh up the finer points of evidence and come to a conclusion.

However, we don't trust them will all the considerations, such as prior convictions. The concept is that every trial should be by evidence and it should be a blank slate.
One key strategy of lawyers is to do their damnedest to see that incriminating evidence isn't included in the trial.

These concepts seem mutally exclusive. You can't trust a jury to have the ability to weigh up all the facts on something so important, while simultaneously refusing to let them see key evidence because it might sway them. It's all or nothing. Trust them or don't.

Ultimately, inquisitoral trials remove power from lawyers and hand it back to judges, who have less of a role as umpire and nitpicker and more of a role as investigator.
There is room for appeals and the findings and processes of judges can be reviewed in case of irregularities. Lawyers still exist, but they don't have nearly as much power to modify the system to make it more profitable.

Granted, the wolves sniff around the henhouse, but they don't hold the keys any more. The wolf holding the key doesn't get paid in hens, that's the key difference.

People on regular salaries are running the show. That removes the temptation to shape the system in a manner that increases profit and draws out the process to squeeze more cash from it.

This spills out into many corners of our lives via indemnity insurance. From community groups that can't operate, to higher-than-necessary hospital bills. You can trace it all back to the cost of litigation, which in turn is caused by the fact that an inefficient system is ultimately more profitable for lawyers and they're the ones running it.

TurnRigtTurnLeft: "However, we don't trust them will all the considerations, such as prior convictions."

I think that is putting it rather strongly. If the law says certain pieces of evidence are not to be considered when making a decision about whether someone did or did not do it, there is no point in admiting it. But I agree it is probably also true to say they don't trust some juries to implement the law as it is written, and so "help them" where possible.

This is the flip side of juries of course. Their advantage is you are ultimately judged by a random selection of your peers, which means they are dammed difficult for anyone control - be it our pollies, Stalin, or a Judge. Their disadvantage is the same - they are dammed difficult to control, and thus making them implement the law as written can be hard.

In essence, you are trading consistency in the outcomes in exchange for making it difficult for a central authority to control those some outcomes. As I said, I don't think it is a bad trade off.

The central issue was originally whether lawyers should self regulate. A profession has traditionally been defined as a self regulating occupation with a specialised body of knowledge who owe society the duty to apply their knowledge and self regulation was believed to ensure an exceptionally high standard of conduct and competence, fairness, transparency and accountability. So at what point of removal of self regulation do lawyers need to cease claiming to be professionals?

I believe that self regulation in law leads to a boys club where some can do whatever they like and the less important are made an example of to pretend that self regulation works. Do you recall this widely reported cigarette company case:

http://www.smh.com.au/opinion/rolah-mccabe-strikes-back-from-the-grave-20090423-agkz.html?page=-1

In 2001 a major law firm was discovered to have been "the principal architect of the advice to destroy" documents. These documents should have been disclosed in the court case where a dying lady was suing a cigarette company. (The decision against the cigarette company was reversed on appeal as the documents which allowed the original court to find out about the misbehaviour shouldn't have been looked at as they were privileged.) It was later discovered that the misbehaviour went right up to the level of two partners. However absent has been any reports that the firm has been shut down or any disciplinary action has been taken.

By contrast consider the case of a small firm lawyer who took money he had earned without complying with the technicalities relating to trust accounts. He forged an authority to avoid getting fined for the breach and was caught out. He got struck off.

http://www.lsc.qld.gov.au/documents/WherryLPT09-022.pdf

The latter example gives the appearance that strong action is taken against lawyers when they act dishonestly even when the circumstances are extenuating. The former example proves that the system doesn't work as dishonesty isn't prosecuted when equal or worse dishonesty is involved just to get a result for a client.

I also note Pericles good examples following the relevant observation:
"The same applies to any group that has sufficient power to make its own rules."

Pericles: "The health profession also operates (pardon the pun) a massive protection racket .. resist any attempt to measure their performance"

Maybe.

What I do know is the health professionals are far better organised than most, and sadly that includes mine. In particular they seem to be very good at limiting the number of people who are allowed to enter their ranks. I was given a reminder of just how well organised they are the other day.

My daughter has recently completed her health related course at Uni. In common with most Uni courses, there is a piss up at the end for staff and graduates. I heard her say in passing that she had to prepare for the event. Bemused, I asked what preparation could possibly be needed. She replied: "oh, we are calling it a conference so we can claim it as a personal tax deduction".