Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P16 docx

A majority of the state statutes provide for the release of identifying information when the birth parents have consented to such release. One method that states use to organize such consents is a mutual consent registry, which is a system whereby individuals involved in the adoptions can indicate whether they will allow for their identifying information to be disclosed. Approximately 29 states have devised some type of registry. Other states have in place a type of search-and-consent system, which allows for the adoption agency to assist a party in locating birth family members if the birth family members consent to the release of the information. Most state statutes deny adoptees access to records that disclose identifying information about the natural parents in situations where the consent of the birth parents is not on record. The natural parents often make their consent to the adoption contingent upon the condition that no information about them ever be revealed. Yet, many states now have instituted procedures for which a party to an adoption may obtain non- identifying information. Non-identifying infor- mation may include, but is not limited to, the following: the date and place of the adopted person’s birth and the birth parents’ age, physical description, race, ethnicity, religion, and medical history. Some states are more restrictive than others regarding the release of information from the adoption records. For example, New York, Oklahoma, and Rhode Island require that any person seeking non-identifying information must first register with the state adoption registry prior to receiving such information. Because of a growing PUBLIC INTEREST in tracing ethnic and family backgrounds, many adoptees, as adults, have been calling for the right to obtain access to sealed adoption records, which includes identifying informa- tion. The adult adoptees recognize that a disclosure of this kind of information could be traumatic to minor adoptees, but they contend that lack of access could cause serious psycho- logical trauma to them as adults. In addition, they cite medical problems or misdiagnoses that could be caused by absence of genetic history, as well as fear of unwitting INCEST. Adult adoptees contend that most adoption statutes do not draw a distinction between adoptees as minors and later as adults, which causes the adults to be deprived of the right to trace their background. In addition, the adults allege that they have been denied EQUAL PROTEC- TION of law because their status precludes them from receiving medical information readily available to non-adoptees. Various approaches are being used to resolve this problem. One approach involves the enact- ment of a legislative requirement that public and private adoption agencies be required to open their records, upon request, to adults who were adopted as children, with certain limitations. For example, if the child had been placed by the natural parents prior to the effective date of the legislation, the natural parents could prevent the adoptee from seeing the records. The issue of right to access to adoption records by adoptees when they reach adulthood also encompasses the legal consideration of the natural parents’ right to privacy, which could be violated if free access to sealed court records were given to adult adoptees. The adult adoptees’ right to know must be balanced against their natural parents’ right to privacy. The way to achieve such a balance, however, has never been clearly determined. In September 1999 Tennessee’s Supreme Court overturned the Tennessee Court of Appeals ruling in Doe v. Sundquist, 2 S.W.3d 919 (Tenn., Sep 27, 1999) (NO. 01-S-01-9901- CV00006), which challenged a law passed in 1995 that unsealed both adoption records and original birth certificates to adult adoptees. Earlier, the U.S. Court of Appeals for the 6th CIRCUIT COURT had ruled in favor of the state and opined, much to the dismay of sealed records advocates: “A birth is simultaneously an inti- mate occasion and a public event—the govern- ment has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as further ing the interest of children in knowing the circumstances of their birth,” Doe v. Sundquist, 106 F.3d 702, 65 USLW 2527, 1997 Fed.App. 0051P (6th Cir. (Tenn.) Feb 11, 1997) (NO. 96-6197). The U.S . Supreme Court, however, elected not to hear the Tennessee case. FURTHER READINGS “Access to Adoption Records, State Statutes Series.” Available online at http://www.childwelfare.gov/system wide/laws_policies/statutes/infoaccessap.cfm; website home page: http://www.childwelfare.gov (accessed June 11, 2009). Carp, E. Wayne, ed. 2002. Adoption in America: Historical Perspectives. Ann Arbor: University of Michigan Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 138 ADOPTION DuPrau, Jeanne. 1990. Adoption. Englewood Cliffs, N.J.: Messner. Embry v. Ryan Florida App. No. 2D08-1323 (May 13, 2009). Marshner, Connaught, ed. 1999. Adoption Factbook III. Washington, D.C.: National Council for Adoption. Manian, Maya. 2009. “The Irrational Woman: Informed Consent and Abortion Decision-Making”. Duke Journal of Gender Law and Policy. August. Melosh, Barbara. 2002. Strangers and Kin: The American Way of Adoption. Cambridge, Mass.: Harvard Univer- sity Press. Rundberg, Gayle D. 1988. How to Get Babies through Private Adoption. Bend, Ore.: Maverick. Sloan, Irving J. 1988. The Law of Adoption and Surrogate Parenting. London: Oceana. “Total Adoptions to the United States.” Available online at http://adoption.state.gov/news/total_chart.html; website home page: http://adoption.state.gov (accessed June 11, 2009). Van Alstyne, William. 2009. “The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court: Altered States in Constitutional Law.” William and Mary Bill of Rights Journal. October. CROSS REFERENCES Child Custody; Child Support; Children’s Rights; Family Law; Illegitimacy; Infants; Parent and Child; Surrogate Motherhood. ADULT A person who by virtue of attaining a certain age, generally eighteen, is regarded in the eyes of the law as being able to manage his or her own affairs. The age specified by law, called the legal AGE OF MAJORITY , indicates that a person acquires full legal capacity to be bound by various docu- ments, such as contracts and deeds, that he or she makes with others and to commit other legal acts such as voting in elections and entering MARRIAGE. The age at which a person becomes an adult varies from state to state and often varies within a state, depending upon the nature of the action taken by the person. Thus, a person wishing to obtain a license to operate a motor vehicle may be considered an adult at age sixteen, but may not reach adulthood until age eighteen for purposes of marriage, or age twenty-one for purposes of purchasing intoxi- cating liquors. Anyone who has not reached the age of adulthood is legally considered an infant. ADULTERATION Mixing something impure with something genu- ine, or an inferior article with a superior one of the same kind. Adulteration usually refers to mixing other matter of an inferior and sometimes harmful quality with food or drink intended to be sold. As a result of adulteration, food or drink becomes impure and unfit for human consump- tion. The federal FOOD AND DRUG ADMINISTRATION prohibits transportation of adulterated foods, drugs, and cosmetics in interstate commerce, as provided under the Food, Drug and Cosmetic Act (21 U.S.C.A. § 301 et seq. [1938]). State and local agencies, acting under the authority of local laws, do the same to ban the use of such impure goods within their borders. ADULTERY Voluntary sexual relations between an individual who is married and someone who is not the individual’s spouse. Adultery is viewed by the law in many jurisdictions as an offense injurious to public morals and a mistreatment of the MARRIAGE relationship. Statutes attempt to discourage adultery by making such behavior punishable as a crime and by allowing a blameless party to obtain a DIVORCE against an adulterous spouse. Although adultery has been historically regarded as a legal wrong, it has not always been considered a crime. In Europe during the fifteenth and sixteenth centuries, adultery was punishable solely in courts created by the church to impose good morals. In the ECCLESIAS- TICAL COURTS , adultery was any act of sexual intercourse by a married person with someone not his or her spouse. The act was considered wrongful regardless of whether the other person was married. At COMMON LAW, adultery was wrongful intercourse between a married woman and any man other than her husband. Criminal Laws Several state legislatures statutorily prohibit adultery as a crime. Under some statutes, both parties to an adulterous relationship are guilty of a crime if either of them is married to someone else. Other statutes provide that the act is criminal only if the woman is married. Under the law of many states, a single act of adultery constitutes a crime, whereas in others, there must be an ongoing and notorious relationship. The punishment set by statute may be greater for an individual who engages in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADULTERY 139 repeated acts of adultery than for one who commits an isolated act. Defenses An individual who has been charged with committing adultery may have a valid legal defense, such as the failure or physical incapac- ity to consummate the sex act. Awomanisnotguiltyofadulteryifthesexact resulted from RAPE. Some states recognize igno- rance of the accused regarding the marital status of his or her sexual partner as a defense. In a few jurisdictions only the married party can be prosecuted for adultery. If the other party to the relationship is not married, he or she may be prosecuted for fornication instead of adultery. Initiation of Criminal Proceedings Under some statutes, a prosecution for adultery can be brought only by the spouse of the accused person although technically the action is initiated in the name of the state. Other states provide that a husband or wife is precluded from commencing prosecution for adultery since those states have laws that prohibit a husband or wife from testifying against his or her spouse. In such states, a complaint can be filed by a husband or wife against the adulterous spouse’slover. Evidence Customary rules prescribe the types of evidence that can be offered to prove guilt or innocence. There must be a showing by the PROSECUTOR that the accused party and another named party had sexual relations. Depending on state statutes, the prosecutor must show that either one or both parties to the adultery were wed to someone else at the time of their relationship. Evidence that the DEFENDANT had the chance to have sexual relations coupled with a desire, or opportunity and inclination, might be sufficient to prove guilt. Photographs or TESTIMONY of a witness who observed the couple having sexual intercourse is not necessary. The fact that a married woman accused of adultery became pregnant during a time when her husband was absent might be admissible to demonstrate that someone other than her spouse had the opportunity of engaging in illicit sex with her. Letters in which the accused parties have written about their amorous feelings or clan- destine encounters may be introduced in court to support the assertion that the parties had the inclination to engage in sexual relations. CHARACTER EVIDENCE indicating the good or bad reputation of each party may be brought before the jury. Evidence of a woman’s sexual relationships with men other than the party to the adultery generally cannot be used; how- ever, if her reputation as a prostitute can be demonstrated, it may be offered as evidence. Suspicious activities and incriminating cir- cumstances may be offered as CIRCUMSTANTIAL EVIDENCE . Enforcement of Statutes Although the District of Columbia and approx- imately half of the states continue to have laws on the books criminalizing adultery, these laws are rarely invoked. Traditionally, states ad- vanced three goals in support of their adultery laws: (1) the prevention of disease and illegiti- mate children; (2) the preservation of the institution of marriage; and (3) the safeguarding of general community morals. Courts in the jurisdictions still prohibiting adultery have openly questioned whether adul- tery laws in fact serve these goals. The Florid a Supreme Court, for example, found that adultery statutes bear no rational, much less compelling relationship to disease prevention. The court said that the risk of contracting disease is already a greater deterrent to extra- marital sex than criminal punishment. The court also noted that the fear of prosecution prevents infected people from voluntarily seek- ing treatment (Purvis v. State, 377 So. 2d 674, 677 [Fla.1979]). At the same time, many prosecutors began to realize that on ce the act of adultery is committed, the harm to the marriage is for the most part complete, especially if the infidelity is disclosed or discovered. In other words, after a spouse has been unfaithful, there is little the judicial system can offer to undo the act and reverse the damage. Thus, prosecutors have increasingly questioned whether prosecut- ing the adulterer will do much if anything to preserve the marriage. Finally, judges, prosecutors, and other state officials have increasingly realized that prosecu- tions for adultery have had little practical effect in “safeguarding the community morals.” Opinion polls consiste ntly show that significant numbers of spouses admit to cheating on their partners during marriage. In light of the growing evidence that adultery laws no longer serve their three underlying purposes, most state prosecutors have made a conscious decision GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 140 ADULTERY against wasting their scarce resources on pro- secuting alleged adulterers. In states that still have adultery laws on the books, but have failed to PROSECUTE anyone under them recently, courts have ruled that the mere lack of prosecution under the adultery statute does not result in that statute becoming invalid or judicially unenforceable. Courts have also rejected the argument that prosecutions for adultery are inconsistent with the right to privacy guaranteed by state and federal con- stitutions (Commonwealth v. Stowell, 389 Mass 171, 449 NE2d 357 [Mass 1983]). As a Defense Occasionally, adultery has been successfully asserted as a defense to the crime of MURDER by an individual charged with killing his or her spouse’s lover. Courts are loath, however, to excuse the heinous crime of murder on the ground that the accused party was agitated about a spouse’s adu lterous activities. However, individuals who kill their spouse after catching him or her committing adultery may be able to rely on a HEAT OF PASSION defense, and thereby face prosecution or conviction for MANSLAUGHTER, rather than first degree murder. Divorce Based on the state ’s interest in the marital status of its residents, all legislatures had traditionally assigned statutes enumerating the grounds on which a divorce would be granted. These grounds, listed separately in the laws of each jurisdiction, generally includ ed DESERTION, NON- SUPPORT , and adultery. The basis of adultery as a ground for divorce has been discussed in various cases. There is an overriding PUBLIC POLICY in favor of preserving the sanctity of marital relationships and family unity and a fear that adultery will serve to undermine these societal objectives. Late twentieth-century changes in divorce laws, primarily the enactment of no-fault divorce statutes in many states, have made it easier for couples seeking divorce to end their marriages without having to prove adultery or any other ground. In the past many unhappy couples resorted to trickery to attempt to obtain a divorce through staging the discovery of allegedly adulterous conduct. Nonetheless, adultery still may be relevant to divorce proceedings in which ALIMONY is an issue. In twenty-seven states plus Puerto Rico and the District of Columbia, fault is one factor which courts will consider in deciding whether to AWARD alimony. If the spouse seeking an alimony award committed adultery, he or she will have a more difficult time convincing the court that he or she is entitled to alimony than if he or she had not been unfaithful. FURTHER READINGS Duhaime, Lloyd. “Adultery.” Duhaime.org Web site. Available online at http://www.duhaime.org/Legal Dictionary/A/Adultery.aspx; website home page: http://www.duhaime.org (accessed August 28, 2009). Friedman, Lawrence M. 2000. “A Dead Language: Divorce Law and Practice before No-fault.” Virginia Law Review 86 (October). Haggard, Melissa Ash. 1999. “Adultery: A Comparison of Military Law and State Law and the Controversy This Causes under Our Constitution and Criminal Justice System.” Brandeis Law Journal 37 (spring). CROSS REFERENCES Circumstantial Evidence; Common Law; Divorce; Ecclesi- astical Courts; Family Law; Fornication; Husband and Wife; Marriage; Privacy; Rape. ADVANCE To pay money or give something of value before the date designated to do so; to provide capital to help a planned enterprise, expecting a return from it; to give someone an item before payment has been made for it. ADVANCE SHEETS Pamphlets containing recently decided opinions of federal courts or state courts of a particular region. Cases appearing in advance sheets are subse- quently published in bound volumes containing several past pamphlets, usually with the same volume and page numbers as appeared in the advance sheets. Sometimes a court will publish an individual opinion soon after it has been rendered by the court. This is called a slip opinion, which later may appear in an advance sheet. Advance Sheets in the National Reporter System The National Reporter System, published by the West Group, St. Paul, Minnesota, is the most comprehensive collection of the decisions of the appellate courts of the states and each of the courts of the United States. Eighteen reporters comprise the National Reporter System. Eight units cover federal courts, including the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADVANCE SHEETS 141 Supreme Court Reporter (cited as S. Ct.); the Federal Reporter, in its third series; the Federal Supplement, in its second series; the Federal Rules Decisions (cited as F.R.D.); the Military Justice Reporter (cited as M. J.); and the Bank- ruptcy Reporter. Ten reporters cover the 50 states and the District of Columbia. These reporters, each of which is in its second or third series, include the following: Atlantic Reporter (A., A.2d); North Western Reporter (N.W., N.W.2d); Pacific Re- porter (P., P.2d, P.3d); South Eastern Reporter (S.E., S.E.2d); Southern Reporter (So., So. 2d); South Western Reporter (S.W., S.W.2d, S.W.3d); California Reporter (Cal. Rptr.); Illinois Decisions (Ill. Dec .); and New York Supplement (N.Y.S., N.Y.S.2d). Advance sheets in the National Reporter System are published 50 times each year (weekly, except for the last week of September and first week of October) for the regional units reporting state cases. Three units report federal cases 52 times per year. The remaining units are published biweekly, monthly, or semi-monthly, depending on how many cases are issued by the courts covered by the various reporters. CROSS REFERENCES Opinion; Reporter. ADVANCEMENT A gift of money or property made by a person while alive to his or her child or other legally recognized heir, the value of which the person intends to be deducted from the child’s or heir ’s eventual share in the estate after the giver’s death. An advancement is not the same as a gift or a loan because the person intends that the “advance” of the heir’s share of the estate be applied against what the heir would normally INHERIT. Although sometimes used to describe situations involving both people who have died INTESTATE (without leaving a valid will) and people who have left a will, the term advance- ment should be used only when there is no valid will. The laws of DESCENT AND DISTRIBUTION regulate the distribution o f an intestate’s property. The t erm ademption applies to lifetime gifts that reduce a beneficiary’s s hare un der a will. ADVERSARY PROCEEDING Any action, hearing, investigation, inquest, or inquiry brought by one party against another in which the party seeking relief (initiating the action) has given legal notice to the other party and provided that party with an opportunity to contest the claims being made against him or her. A court trial is a typical example of an adversary proceeding. CROSS REFERENCE Adjudication. ADVERSARY SYSTEM The scheme of American jurisprudence wherein a judge or jury renders a decision in a controversy between or among parties who assert contradictory positions during a judicial examination such as a trial, hearing, or other adjudication. U.S. courtr ooms have often been compared to battlefields or playing fields. The adversary system by which lega l disputes are settled in the United States promotes the idea that legal controversies are battles or contests to be fought and won using all available resources. The contemporary Anglo-American adver- sary system has gradually evolved, over several hundred years. Early English jury trials were unstructured proceedings in which the judge might act as inquisitor, or even PROSECUTOR,as well as fact finder. Criminal defendants were not allowed to have counsel, to call WITNESSES,to conduct CROSS-EXAMINATION, or to offer affirma- tive defenses. All types of evidence were allowed, and juries, although supposedly neutral and passive, were actually highly influenced by the judge’s remarks and instructions. In fact, before 1670 jurors could be fined or jailed for refusing to follow a judge’s directions. The late 1600s saw the advent of a more modern adversarial system in England and its American colonies. Juries took a more neutral stance, and appellate review, previously unavail- able, became possible in some cases. By the eighteenth century, juries assumed an even more autonomous position as they began functioning as a restraint on governmental and judicial abuse and corruption. The Framers of the Constitution recognized the importance of the jury trial in a free society by specifically establishing it in the SIXTH AMENDMENT as a right in criminal prosecutions. The Eight Amend- ment also established the right to a jury in noncriminal cases: “In Suits at COMMON LAW, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 142 ADVANCEMENT be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” The independen t judiciary was somewhat slower in developing. Before the 1800s, English judges were still biased by their ties with the Crown, and U.S. judges were often politically partisan. U.S. Supreme Court Chief Justice JOHN MARSHALL , who served from 1801 to 1835, established the preeminence and independence of the high court with his opinion in MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). Marbury established “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” (Cooper v. Aaron, 358U.S.1,78S.Ct.1401,3L. Ed. 2d 5 [1958]). By the early 1800s, attorneys had risen to prominence as advocates and presenters of evidence. Procedural and eviden- tiary rules were developed, and they turned the focus of LITIGATION away from arguments on minute points of law and toward the RESOLUTION of disputes. The basic parameters of the United States’ modern legal system had been established. In the Anglo-American adversary system, the PARTIES to a dispute, or their advocates, square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the American Revolution, the mod ern adversary system reflects the conviction that everyone is entitled to a DAY IN COURT before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and to present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict. In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence presented by the parties with the objective of resolving the dispute between them. The fact finder must remain uninvolved in the presentation of arguments so as to avoid reaching a premature decision. The Anglo-American requirement of an impartial and passive fact finder contrasts with the requiremen ts of other legal systems. For example, most European countries employ the INQUISITORIAL SYSTEM, in which a judge investigates the facts, interviews witnesses, and renders a decision. Juries are not favored in an inquisitorial court, and the disputants are minimally involved in the fact-finding process. The main emphasis in a European court is the search for truth, whereas in an Anglo-Amer ican courtroom, truth is ancillary to the goal of reaching the fairest resolution of the dispute. It has been suggested that the inquisitorial system, with its goal of finding the truth, is a more just and equitabl e legal system. However, propo- nents of the adversary system maintain that the truth is most likely to emerge after all sides of a controversy are vigorously presented. They also point out that the inquisitorial system has its own deficiencies, including abuse and corrup- tion. European judges must assume all roles in a trial, including those of fact finder, evidence gatherer, interrogator, and decision maker. Because of these sometimes conflicting roles, European judges might tend to prejudge a case in an effort to organize and dispose of it. Inquisitorial courts are far less sensitive to individual rights than are adversarial courts, and inquisitorial judges, who are government bureaucrats (rather than part of an independent judicial branch), might identify more with the government than w ith the parties. Critics of the inquisitorial system argue that it provides little, if any, check on government excess and that invites corruption, BRIBERY, and ABUSE OF POWER. The parties to an Anglo-American lawsuit are responsible for gathering and producing all of the evidence in the case. This challenge forces them to develop their arguments and to present their most compelling evidence, and it also preserves the neutrality and passivity of the fact finder. The adversary process is governed by strict rules of evidence and procedure that allow both sides equal opportunity to argue their cases. These rules also help to ensure that the decision is based solely on the evidence presented. The structure of this legal system naturally encourages zealous advocacy by lawyers on behalf of their clients, but the code of ethics governing the conduct of lawyers is designed to curb the tendency to attempt to win by any means. The adversary system has staunch defen- ders as well as severe critics. The image of the courtroom as a battleground or playing field where contestants vie for victory is evident in the news media’s preoccupation with who is “winning” or “losing” or “scoring points” in such highly visible cases as the 1995 trial of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADVERSARY SYSTEM 143 O. J. SIMPSON, an actor, sportscaster, and former professional football player who was tried for killing his former wife, Nicole Brown Simpson, and her friend Ronald Goldman. The emphasis on “winning at all costs” without commensurate concern for truth-seeking dismays some U.S. citizens, and a growing number are demanding reforms in the legal system. During the 1980s and 1990 s, the use of alternative forms of dispute resolution such as MEDIATION and ARBITRATION grew dramatically. However, defenders of the adversary system note that these alternatives have been used all along, in the form of SETTLEMENT conferences, minitrials, and summary jury trials, and that the vast majority of lawsuits are already settled before the parties ever appear in court. When a dispute cannot be resolved without a trial, the adversary system is the established method of adjudication in the United States. Indeed, the organized bar remains committed to the notion that vigorous advocacy by both sides of a legal controversy ultimately leads the judge or jury to the facts needed for a fair resolution and that it is the process that is best calculated to elicit the truth and to protect individual rights. Although many concede that the adversary system is imperfect and that it may be subject to abuse and manipulation, the majority still believe that, by giving all parties and their The Adversary System: Who Wins? Who Loses? T he legal system in the United States is known as an adversary system. In this system, the parties to a controversy develop and present their arguments, gather and submit evidence, call and question WITNESSES, and, within the con- fines of certain rules, control the process. The fact finder, usually a judge or jury, remains neutral and passive throughout the proceeding. Critics pose some disturbing ques- tions about the adversary system: Is justice served by a process that is more con- cerned with resolving controversies than with finding the ultimate truth? Is it possible for people with limited resources to enjoy the same access to legal services as wealthy people do? Does a system that puts a premium on winning encourage chicanery, manipulation, and deception? The 1995 trial of O.J. SIMPSON,an actor, sportscaster, and professional foot- ball player accused of murdering his former wife and her friend, cast unprec- edented scrutiny on the criminal justice system and left many people wondering whether truth or justice plays any role in its operation. Each day for over a year, the trial was televised in the homes of millions of people, most of whom had never seen the inside of a courtroom. They were fascinated and repelled by prosecutors and defense attorneys who argued relentlessly about seemingly trivial points. Even more disturbing to some viewers was the acrimonious name- calling that went on between the two sides as each attempted to discredit the other’s evidence and witnesses. Likewise, the inability of federal prosecutors to convict reputed mob boss John Gotti Jr. after four trials in five years ended in hung juries (the last in 2009) bewildered some observers. Defense attorneys are quick to point out that the Constitution guarantees that the accused is innocent unless found guilty in a court of law, and it is impossible to protect the innocent without occasionally protecting the guilty. Lawyers are obligated to challenge the evidence against their clients, even if that means impugning the police or attacking a victim’s or witness’s charac- ter. It is their job to win an ACQUITTAL by whatever legal and ethical means lies within their power. Disparaging the legal system has become something of a national pastime. Indeed, criticism of the system comes from all corners of the landscape, including the top of the system itself. The late Chief Justice WARREN E. BURGER was outspoken in his lambasting of the system and of lawyers, asserting that they are too numerous and too zealous, that they file too many frivolous lawsuits and motions, and that there is general failure within the system to encourage out-of- court settlements. Burger was a vocal proponent of ALTERNATIVE DISPUTE RESOLU- TION (ADR). He advocated the use of nonlitigious solutions such as MEDIATION or ARBITRATION as a means of reducing court congestion. Supporters of the adversary system point out that it is not clear that the savings reaped from ADR always outweigh the costs. In situations where the parties are not at equal bargaining strength, questions arise as to whether settlements are extracted through duress. Some attorneys and litigants have noted that ADR is often as adversarial in nature as LITIGATION, with evidence presented and slanted by counsel. They further complain that there is no guarantee that an arbitrator will be informed about the subject matter of the dispute and, therefore, no guaran- tee of a fair outcome. One criticism of the adversary sys- tem is that it is slow and cumbersome. The judge, acting as a neutral fact finder, can do little to accelerate a trial, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 144 ADVERSARY SYSTEM advocates the opportunity to present evidence and arguments before an impartial judge, it promotes a free and pluralistic society with the best available means of settling disputes. FURTHER READINGS Burger, Warren E. 1993. “Essays: The State of the Adversary System 1993.” Valparais o Univ. Law Review 27 (spring). Doyle, Stephen, and Roger Haydock. 1991. Without the Punches: Resolving Disputes without Litigation. Minnea- polis: Equilaw. Kagan, Robert A. 2003. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard Univ. Press. Landsman, Stephan. 1984. The Adversary System: A Descrip- tion and Defense. Washington, D.C.: American Institute for Public Policy Research. ———. 1988. Readings on Adversarial Justice: The American Approach to Adjudication. Eagan, MN: West. Olson, Walter K. 1991. The Litigation Explosion. New York: Truman Talley. CROSS REFERENCES Alternative Dispute Resolution; Civil Law; Common Law; Inquisitorial System; Judge; Judiciary; Jury. ADVERSE INTEREST The legal right or liability of a person called to testify as a witness in a lawsuit that might be lost or impaired if the party who called him or her to testif y wins the case. This interest against the interest of the party calling a witness to the stand makes him or her procedural and evidentiary rules further slow the process. Likewise, the wide availability of appellate review means that a final determination can take years. However, at least one study has shown that in courts where adversarial trials were discouraged and settlements actively encouraged, litigants still en- countered substantial delays in RESOLU- TION . Moreover, supporters of the adversary system maintain that a me- thodical, albeit cumbersome, system is necessary for protection of individual rights. It is fair to challenge the ethics of a legal system that places a higher value on winning than on truth seeking. At least one commentator has characterized the system as one in which lawyers spend more time avoiding truth than seeking it. But proponents argue that the vigorous clash of opposing viewpoints eventually yields the truth and that allowing the sides to fight it out under specific rules that guarantee fair play allows the truth to surface on its own. Many other complaints have been leveled against the U.S. adversary system. Some feel that because the parties control the litigation, they are encouraged to present only the evidence that is favor- able to them and to suppress evidence that is unfavorable. Criticism of attorneys abounds. Some feel that the lawyers’ ethics code encourages zealous represen- tation at the expense of truth, making attorneys, in the words of Burger, “hired guns” (In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 [1973] ). Others complain that lawyers file too many frivolous lawsuits and have become too dominant in the adversary process. Some even say that the rules of evidence, designed to guarantee fairness to all parties, actually work against fairness by preventing important information from being presented to the fact finder. Defenders of the adversary system are quick to refute each criticism lobbed at it. They contend that it is necessary for the parties to control the litigation in order to preserve the neutrality of the judge and jury. They point out that lawyers, although as susceptible to cor- ruption as any other group, are governed by a code of ethical conduct that, when enforced, deals effectively with instances of overreaching. Plus, while conceding that evidentiary rules may be subject to manipulation, they vigorously maintain that such rules are the only means by which to ensure fairness and prevent judicial abuse. The criticism of the U.S. legal system that may be most difficult to refute has to do with accessibility. It cannot be plausibly argued that an average criminal DEFENDANT has the same access to LEGAL REPRESENTATION as O.J. Simpson or John Gotti Jr. had, nor can it be argued that an injured PLAINTIFF in a civil suit is in an equal bargaining position with a huge corporation. Yet supporters of the adver- sary system counter that unequal access to legal services is the result of economic and social conditions, not the structure of the legal system and that changing the way legal services are delivered would do nothing to address the root causes of the disparity. They also point out that the much criticized contingency fee arrange- ment, by which an attorney is paid a percentage of the award her or his client receives, opens the courts to members of the population who could not otherwise afford legal representation. Many legal experts agree that, in the long run, the adversary system results in societal benefits that outweigh its inherent shortcomings. By allowing all sides of a controversy to be heard, the system protects against ABUSE OF POWER and forces those with the most at stake to focus on the issues in dispute. At its worst, it can be manipulated to the benefit of those least deserving, but at its best, it offers every injured party a forum for relief, sometimes against powerful odds. No doubt the arguments about whether and how to change the system will persist well into the twenty-first century. This system, which has evolved over three hundred years, will probably undergo some changes. But the basic values at its heart, such as PRESUMPTION OF INNOCENCE, the right to trial by jury, and protection of individual rights, appear to be firmly cemented as the cornerstones of U.S. JURISPRUDENCE. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADVERSE INTEREST 145 an adverse or HOSTILE WITNESS. Although usually the party calling a witness to TESTIFY cannot IMPEACH that person’s credibility, if the person has an adverse interest, the TESTIMONY may be discredited by the party who called that witness to the stand. ADVERSE POSSESSION A method of gaining legal title to real property by the actual, open, hostile, and continuous posses- sion of it to the exclusion of its true owner for the period prescribed by state law. Personal property may also be acquired by adverse possession. Adverse possession is similar to prescription, another way to acquire title to real property by occupying it for a period of time. Prescription is not the same, however, because title acquired under it is presumed to have resulted from a lost grant, as opposed to the expiration of the statutory time limit in adverse possession. Real Property Title to land is acquired by adverse possession as a result of the lapse of the STATUTE OF LIMITATIONS for ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made. The legal theory underlying the vesting of title by adverse possession is that title to land must be certain. Because the owner has, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period of time is recognized as its owner. Title by adverse possession may be acquired against any person or corporation not excepted by statute. Property held by the federal govern- ment, a state, or a MUNICIPAL CORPORATION cannot be taken by adverse possession. As long as the property has a public use, as with a highway or school property, its ownership cannot be lost through adverse possession. Anyone, including corporations, the federal government, states, and municipal corpora- tions, can be an adverse possessor. Elements In order that adverse possession ripen into LEGAL TITLE, nonpermissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the uses to which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by a preponderance of the evidence. Actual Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A TRESPASS may com- mence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be estab- lished. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exer- cise. Ordinary use of the property—for exam- ple, planting and harvesting crops or cutting and selling timber—indicates actual possession. In some states acts that constitute actual possession are found in statute. Open and Notorious An adverse possessor must possess land openly for all the world to see, as a true owner would. Secretly occupying another’s land does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant’s possession mu st be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the posses- sion puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time. Exclusive Adverse possession will not ripen into title unless the claimant has had exclusive possession oftheland. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 146 ADVERSE POSSESSION An adverse claimant cannot possess the property jointly with the owner. Two people may, however, claim title by adverse possession as joint tenants if they share occupancy of the land. When others or the general public have regularly used or occupied the land with the adverse clai mant, the requirement of exclusive possession is not satisfied. Casual use of the property by others is not, however, inconsistent with exclusive possession. Generally, easements do not affect the exclusive possession by an adverse possessor. In some jurisdictions ease- ments exercised by the public or railroad rights of way will destroy exclusive possession. Hostile Possession must be hostile, so me- times called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner’s rights. There need not be a dispute or fighting over title as long as the claimant intends to claim the land and hold it against the interests of the owner and all the world. Possession must be hostile from its commencement and must continue throughout the statutory period. One type of hostile possession occurs when the claimant enters and remains on land under COLOR OF TITLE. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal DISABILITY at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession. Continuous Adverse possession must be continuous for the full statutory period if title is to vest. Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough. Continuity is sometimes explained as the daily control of the land by the adverse claimant for the length of the statutory period. If a person has continuously occupied only a part of all the land claimed under adverse possession, he or she will acquire title only to the occupied portion. While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only one person hold the land continuously for the statutory period. The time periods that successive adverse occupants have possessed the land may be added together to meet the continuity requirement if PRIVITY exists between the parties. The addition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests are related to each other by a sale or INHERITANCE of the land or by OPERATION OF LAW, as possession by a TRUSTEE in BANKRUPTCY. Tacking is permitted only when the poss es- sion by the prior occupant had been adverse or under color of title. If any time lapses between the end of one owner’s possession and the start of another’s occupation, there is no continuity, so tacking will not be allowed. Interruption of continuous possession deprives the adverse possessor of the legal effect of his or her prior occupancy. The statute of limitations will begin t o run again from the time he or she starts actual, open, hostile, notorious, and exclusive possession. The length of the interruption is insignificant as long as it disturbs continuous possession. At that time the law restores constructive possession of the land to the true owner. The commencement of a lawsuit by the owner against the occupant over the right of ownership and possession of the land is one way to interrupt continuous possession. It may be an action to quiet title, for trespass, for an INJUNCTION involving possessive rights, or to file a petition for registration of land title. Such lawsuits will destroy the continuity of posses- sion only if successfully pursued to final judgments. If the owner chooses to abandon or SETTLE a suit or if a court dismisses it, the continuity of possession is not breached. The entry of the owner upon the land with the intent to repossess it is a clear exercise of ownership that disturbs possession. A survey of the land made at the request of the true owner does not interrupt possession unless the purpose is to help the true owner take possession. The owner’s actions must be notorious and open so there can be no doubt as to what is intended. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADVERSE POSSESSION 147 . University of Michigan Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 13 8 ADOPTION DuPrau, Jeanne. 19 90. Adoption. Englewood Cliffs, N.J.: Messner. Embry v. Ryan Florida App. No. 2D08 -13 23. highly visible cases as the 19 95 trial of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADVERSARY SYSTEM 14 3 O. J. SIMPSON, an actor, sportscaster, and former professional football player who. cases: “In Suits at COMMON LAW, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 14 2 ADVANCEMENT be preserved,