The relevance of the adversarial ideal in the design of judicial proceedings is due to two major ideas: the right to a proper defence for the parties and the important role that the parties perform during the questioning and the control of the other party’s case. Once the relevance of the adversarial ideal is acknowledged, one could ask if this ideal is properly welcomed under the family procedure stated in the law. I propose that in order to answer this question properly, it is pertinent to use some sort of instrument to measure the amount of the adversarialness that the family court system allows, vis a vis, the effective possibilities to carry out an efficient cross examination.
The paper shows that the right to cross-examine a witness and expert witness is heavily undermined in the family law system. In the first place, one can find normative issues and legal lacunae (for example the law says nothing about the possibility during cross examination to use leading questions or the possibility to object). Second, the jurisprudence of the Courts of Appeal and the Family Courts supported problematic interpretations of the law, in which the parties are allowed to present expert reports but are not required, even in cases when the other party asks for it, to present evidence in open court. Finally the operation of the pre trial conference is under a strong challenge, because parties generally do not have much enough information about the witness and the contents of his future declaration, turning the cross examination during the trial in some sort of long shot in the dark.
- debido proceso
Available at: http://works.bepress.com/claudio_fuentes_maureira/2/