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Published: Fri, 02 Feb 2018

Inquisitorial and accusation systems of trial

What Are The Advantages And Disadvantages Of Both The Inquisitorial And Accusation Systems Of Trial? Can And Should A Hybrid System Be Created?

Caenegem, (1999) States that in the Inquisitorial trial system the priority is centred on ‘outcomes’, where the emphasis in the adversarial trial system is on the actual ‘process’. Caenegem suggests the Inquisitorial viewpoint is that the search for truth is its ultimate goal. Therefore, the Inquisitorial system’s perspective is that an independent officer of the state, whether they are a judge or a prosecutor, who remains impartial, is the best person to seek and find the truth. (Dammer and Fairchild, 2005) However, the attitude of the adversarial system, is that the truth will surface by allowing the judge to remain neutral whilst opposing counsels try to convince a jury that their version of events is true, and at the same time, trying to discredit the other side. (Sworden, 2006) Bearing this in mind, this paper will: firstly, give a definition of both the Adversarial and the Inquisitorial systems of trial; secondly, illustrate the advantages and disadvantages of both systems by examining five main areas of the criminal justice system, namely the roles of the police, the accused, the legal representatives, the judges; and the courts; and finally, the paper will conclude by answering the question as to whether a hybrid system can, and should, be created.

There is a common consensus among academics that there are two main legal systems in the Western world; the Adversarial system (Common law or Accusatorial system) and the Inquisitorial system (Civil Law or Continental system) (Pakes, 2005; De Cruz, 1999; Glenn, 2000) The adversarial system of trial is where two equal parties – the prosecution and the defence – present their cases orally in court. The adversarial system places the courts in a position were it is neutral, therefore, the state does not disperse justice, but rather provides a platform for justice to be carried out. (Fairchild, 2001) In this system both legal representatives are an essential and indispensable part of the trial process. An adversarial approach to justice goes on the assumption that the truth will best be served if both parties are allowed to put their cases forward in front of a jury. (Pakes, 2004,p: 81) The Judge in an adversarial system looks at the evidence to determine whether it has been gathered in accordance with the law, and a Judge decides that proper criminal procedure has not been followed and that evidence has been obtained illegally, through deception, then they have the power to exclude it from the trial proceedings. (Fairchild and Dammer, 2005) In the Inquisitorial system, the accused has the right to silence; however, rarely are they allowed to exercise this right, as the main aim of the inquisitorial system is to find the truth through intensive investigation from all components of the criminal justice system including the accused. Therefore, the accused is expected to cooperate fully with the investigation in order for the truth to be uncovered. (Sworden, 2006) Unlike the adversarial system, where the judge is neutral, the judge in the Inquisitorial system is the main player, who is expected to conduct the investigation alongside the prosecutor and the police and give his verdict based on all the evidence that has been collected and subsequently presented to him in a dossier at a private pre-trial. (Fairchild, 1993) Whereas an Inquisitorial judge will be fully aware of the case before the accused is brought before them, the Adversarial judge would never be allowed access to, or any previous knowledge of, the accused as it could be seen to induce bias. (Taylor, 2004, p: 1)

As previously stated, the role of the police in the Inquisitorial law system is to work alongside the investigating magistrate to discover the facts concerning the crime, and also to work closely with the prosecutor who is:

“under an obligation to gather evidence for and against the accused in a neutral and objective manner, as the goal of the prosecutor is not to obtain a conviction but to discover the truth”.

(Caenegem, 1999,P: 73)

This could well be advantageous, as the investigating magistrate would be able to preside over the handling of the investigation by the police, therefore, ensuring that there is no abuse of the extensive, intrusive powers of the police. (Merryman, 1969, P: 38) It could be argued that a further advantage of the inquisitorial system is that the police do not have to follow the same strict criminal procedure as the adversarial system when gathering evidence, and so all evidence, no matter how it is obtained can be presented in the dossier to the judge. (Taylor, 2004) This could be seen as an advantage in that in cuts through a lot of red tape and gives the police the power to investigate without having to worry too much about following proper procedure. However, it could be argued that these advantages are weighted more on the side of the State and are not extended in the same manner to the accused. Conversely, the adversarial system, it could be argued, offers more advantages in favour of the accused, as there are strict rules placed upon observing criminal procedure, where any evidence can be excluded from the trial if it is obtained through unscrupulous means, therefore giving the accused some degree of protection, preventing an abuse of police power in order to gain a conviction. (Apple and Deyling, 1995) Furthermore, the police, the prosecution and the judge in the adversarial system do not expect the accused to help them build their case against them; they also give the accused the right to remain silent, a luxury that is only theoretically afforded to those accused under a inquisitorial system of law. (Taylor, 2004) As such, it could be argued that the adversarial advantages are more weighted in favour of the accused, which leaves the police slightly disadvantaged, whilst on the other hand the inquisitorial system seems to offer certain advantages to the police, which inadvertently leaves the accused at a disadvantage.

According to Sheehan, (1975) the role of the accused in the adversarial system of law has the right to remain silent and does not have to cooperate with the police in their investigation, as the accused is considered to be innocent till proven guilty. These, it could be argued, are strong advantages for the adversarial system in that they offer the accused a degree of protection from the State, and thereby fulfil Article 6 of the ‘European Convention of Human Rights’ where it states that everyone is entitled to a fair trial, and where according to Pakes, (2004, p: 153) it “enshrines the principle that the courts shall presume that anyone charged with a criminal offence is innocent till proven guilty”. Conversely, the accused in the inquisitorial system does have to cooperate with the police, and the right to remain silent, is seen as an obstruction of the case. Furthermore, the accused is not considered to be seen as innocent till proven guilty, which could be argued is a disadvantage in that it is in direct conflict with Article 6 of the European Convention of Human Rights. (Pakes, 2004) A further disadvantage in the inquisitorial system, according to Pakes, (2004, p: 62) is that the accused is not entitled to a defence lawyer when being interviewed by the police, and the reason given for this is that “the presence of a lawyer would hinder the development of rapport between the interviewer and suspect”. Therefore, it could be argued that when it comes to the accused in both systems of trial, it could be suggested that adversarial systems seem to offer the accused more advantages, in that their civil rights are upheld by the State to a greater degree than the rights of the accused in the inquisitorial system of trial.

One of the disadvantages of the legal representatives in the adversarial system is that it is based on two equal parties; the prosecution and the defence, who represent the accuser and the accused respectively, with both sides presenting evidence that they believe to be relevant to their case, therefore, it could be argued that it becomes more of a contest to see who can outwit and outsmart their opponent rather than actually seeking the truth. (Ashworth, 1998) A further disadvantage in the adversarial system is that prosecutors can offer the accused the chance to plead guilty. Although this option can save the court time and money it can also lead to “a lack in public confidence in criminal justice, since justice is seen to be ‘for sale’, and offenders are seen to get off too lightly” (Caenegem, 1999, p: 78) On the other hand, it could be argued that it is offset by having the advantage that evidence can be excluded if the police/prosecutor fail to observe even minor criminal procedures, regardless of whether that evidence was vital for the prosecution of the accused, and therefore ensures that any evidence that has been gathered was obtained through proper channels, and not through dishonest means such as entrapment. (Ibid, 1999) Another advantage for the defence in the adversarial system is that the Prosecution must prove the guilt of the accused beyond a reasonable doubt. This was put in place to ensure that the prosecution would need to have a high standard of evidence against the accused in order to gain a conviction. However, in the inquisitorial system they do not place the same emphasis on criminal procedure, therefore, any evidence can be admitted, whether it was obtained through deception or not. (Pakes, 2004) It could be suggested therefore, that the inquisitorial system is more focused on ‘finding the truth’ as opposed to ‘delivering justice’ (Caenegem, 1999, p: 80)

The role of the judge in the adversarial system is a neutral one; he is there to ensure that strict observance of procedural law is carried out. (Sworden, 2006) This could be seen as a disadvantage as the judge does not get to hear all the information that the lawyers are privy to, for example, due to strict rules of evidence, the lawyers can only introduce evidence that has been obtained through strict procedure. Therefore there could be other evidence that is important to the case, to which the judge and jury will never have access. (Taylor, 2004) It could be argued that this puts the judge in the adversarial system at a disadvantage in court, whilst on the other hand, the Investigating magistrate in the inquisitorial system actively engages with the investigation and has effective control over conduct of the police and the prosecutor, and so the judge would be able to notice any questionable practice that had been carried out by either the law enforcers or the accused. (Taylor, 2004) However, according to Caenegem, (1999, p: 75) the role of the judges in the inquisitorial system is a difficult one, because they carry out a dual role; investigator and judge, which could be viewed as being a conflict of interest, where he states that judges in the inquisitorial system can be seen to be too ‘excessively powerful’ in that they are not “sufficiently subject to independent control” in the court room.

In the adversarial system the courts offer a neutral platform for opposing counsels to present their case in front of a jury of lay citizens. According to Caenegem, (1999, p: 75) adversarial courts insist on strict rules of evidence because juries would be too easily swayed by “unreliable, unfairly prejudicial evidence” as opposed to an inquisitorial judge who is thought professional enough to be “capable of avoiding the trap of determining guilt by disposition”. It could be argued that although juries are to a certain extent an advantage in the adversarial system in that they are impartial and provide ‘democratic accountability’, they could equally be seen as a disadvantage in that they are more costly and could offer an added element of ‘unpredictability’ and ‘complexity’ to a case that might not otherwise exist. (Taylor, 2004) However these problems rarely exist in the inquisitorial system as the decision as to whether the accused is guilty or not rests with the investigating judge and not with a lay jury, and so they therefore have an advantage in the inquisitorial system that allows the judge to see all the evidence that has been presented in the dossier. It could be argued that the dossier helps the court proceedings run more efficiently, as by the time the case arrives at court, the judge already has all the relevant information at his disposal and is well informed with regards to the accused. (Merryman, 1969) It could also be argued that a further advantage in the inquisitorial system is seen when dealing with the accuser’s guilt and punishment at the same time, which helps the court to accelerate the process, ensuring that the accused need not wait longer than is necessary.

When looking at both systems it would seem a sensible solution to create a hybrid system where they would extract the best from both systems in order to create one system that protect the rights of the accused whilst ensuring justice was still upheld. At the moment most countries have either the inquisitorial system or the adversarial system, however, over the years,

“developments in Britain have been dominated by a crisis in confidence that the criminal process can produce the truth. The miscarriages of justice, evidenced by the Birmingham Six, the Guildford Four and other cases in which possibly innocent persons were convicted as a result of biased pre-trial investigations, questioned the adversarial pre-trial process”

(Siegel, 2007, p: 102)

It could be argued that a movement towards a more active judiciary, where the judge would be separate from the investigation, but would have more access to information and be able to question the accused, would install greater transparency. Therefore, it could be suggested that adversarial system would benefit from adapting elements from the inquisitorial system in becoming more truth seeking. Similarly,

“Italy radically reformed its criminal procedure in 1988, superimposing an adversarial mode of procedure on an inquisitorial system. Perceived problems of corruption and intimidation of judges and the inefficiency of the Italian legal system drove this reform.”

(Siegel, 2007, p: 101)

Therefore, Italy have effectively developed a hybrid system whereby they have dispensed with the investigating judge, as he was perceived as having too much ‘unchecked power’ due to his dual role, and have replaced him with a prosecutor as the main player in the pre-trial stage. However, this task has been met with ‘predictable resistance’ from judges who don’t want to give up their control and power, to prosecutors, who now have to go from a position of impartiality to one where they need to prepare cases that will gain a conviction from the accused. (Ibid, 2007) Therefore, it could be argued that creating a hybrid system that incorporates the best from both systems is possible, and if done right could offer a more efficient alternative, but it is not an easy task to undertake, as was seen in the case of The Hague, whereby elements of both systems were brough together to form one criminal court, which resulted in confusion, complications and difficulties due to the conflicting roles of the stakeholders. However, it is accepted that by combining both systems appropriately, it could be valuable in ‘developing the practice of international justice’. (Taylor, 2004: p.4)

In conclusion, many defenders of both the adversarial and the Inquisitorial systems argue that the systems have functioned fine for centuries, and so adopt the philosophy that if it is not broke, then it does not require to be fixed. However, it can be seen that there are many flaws that exist within both systems, and so it is broken and does require fixing. A hybrid system could help in two main areas: firstly, by limiting the role of the judge in the inquisitorial system, to prevent any future misuse of power by judges that have too much ‘unchecked power’ due to their dual role; and secondly, by allowing the Judge in the adversarial system to have full access to all the information beforehand, in writing, similar to the inquisitorial system, so that he is fully aware of the case before it goes to trial. This would ensure a speedier, more efficient system, which would be beneficial to the judge who would then be able to spot any dubious practice by the lawyers or the accused.

It is clear therefore that a hybrid trial system can be created, as was the case in Italy, and it has been shown that in choosing the appropriate elements of both systems, a hybrid system would be highly advantageous, and although it may be cumbersome and complicated – as was the case in The Hague – especially with the retraining that is required of all the stakeholders in order to adapt to the new system, it is fair to say that in the interest of progress and justice, a hybrid system of trial should be created.


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