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Published: Fri, 02 Feb 2018
Adversarial and inquisitorial systems of justice
Adversarial and inquisitorial systems of justice represent two different means of conducting trials with adversarial systems used in common law jurisdictions such as England and the inquisitorial system being prevalent in mainland Europe. This essay will outline the characteristics of each system and consider which one is best suited to the assessment and evaluation of facts.
The adversarial system is based on the opposing sides acting as adversaries who compete to convince the judge and jury that their version of the facts is the most convincing. The lawyers are given free choice in terms of which issues are presented, what evidence to adduce in support of their submissions and what witnesses to call. The judge presides over the trial and rules on disputed issues of procedure and evidence, asking questions of the witness only to clarify evidence, and concludes the trial by summing-up the facts for the jury and advising them of the relevant law. It is not open to the judge in an adversarial system to enquire beyond the facts and evidence that are presented by the opposing lawyers; his role is largely passive; he is an impartial referee who advises the jury on matters of law.
This differs dramatically to the role of the judge in an inquisitorial system which is based, as the name suggests, on an inquiry into the case thus the judge is not limited to hearing the submissions of the parties but can direct the lawyers to address specific points or to call particular witnesses. The title of the presiding judge as ‘juge d’instruction’ which translates as ‘investigating magistrate’ in the French criminal justice system gives in indication of the role of the judge in directing proceedings. Unlike the adversarial system, the role of the inquisitorial system is not to determine guilt or innocence of one particular person but to find the truth. As such, the judge, as investigating magistrate, conducts an inquiry that involves the questioning of witnesses and suspects, the issue of search warrants and an examination of the evidence with the aim of discovering both incriminating and exculpatory evidence. The prosecution and defence lawyers will keep a close eye on the judge’s investigation and can request that he considers specific evidence or takes a particular course of action but the ultimate responsibility for the line of inquiry remains that of the judge. If, at the conclusion of the investigation, the judge decides that there is a case against a particular suspect, the matter will proceed to trial which will take an adversarial format.
An inquisitorial system involves a preliminary investigation conducted by an investigating magistrate as a means of seeking the truth. It is accepted that the adversarial system does not do this:
A trial does not involve the pursuit of truth by any means… the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies of the case on either side (R v Whithorn (1983) 152 CLR 657 per Dawson J at 682).
As the respective lawyers for the Crown and the defendant in an adversarial system have the freedom to choose what evidence to present to the court, there is a possibility that the truth in its entirety will not emerge at all. Although the adversarial system does operate within a system of rules of disclosure, this does not compel both sides to be entirely open with regards the evidence that they possess; it merely requires that they disclose any information that is specifically requested by their opponent. Of course, this operates to restrict the emergence of evidence; if it is not known to exist, it will not be requested. Therefore, in an adversarial system, if the defence is in possession of negative evidence, they can merely ignore it and hope that it is not requested by the prosecution (and vice versa).This would not occur in an inquisitorial system as the investigating magistrate is in charge of an examination of all of the evidence, although he can be directed towards evidence by the lawyers on both sides but they do not have the ability to withhold or obscure evidence from him. This approach, then, seems to be a more effective way of finding the truth in a particular case as there are no restrictions on the emergence of key evidence thus all the facts and evidence are available for scrutiny.
This means that a thorough review of the facts has occurred prior to the commencement of a trial thus it is thought to be a cost-effective means of dispensing justice as the pre-trial investigation will reduce the number of contested trials. This can be subject to trenchant criticism for its erosion of a fundamental principle of criminal justice; the presumption of innocence. A defendant in an inquisitorial system is only on trial as the investigating magistrate believes that the evidence suggests that he is guilty. As such, how is it that his subsequent trial can be said to take place within the context of a presumption of innocence when all those involved in the process, including the jury, know that the defendant is only there because the investigating magistrate is convinced of his guilt?
The inquisitorial system appears to be more adept at identifying and investigating the relevant facts and ensuring that this is all taken into account when deciding to proceed with a trial. As such, it seems to be a more cost-effective method of conducting a criminal trial. The central question, however, is whether it dispenses justice. An investigating magistrate may reach an erroneous conclusion that leads to the wrong individual being tried in circumstances where his presumption of innocence is eroded. An adversarial system protects against wrongful convictions by ensuring that the process is slanted in favour of the defendant in the belief that it is better for ten guilty men to walk free than for one innocent man to be imprisoned.
Word Count: 1002
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Hodgson, J. ‘The Police, the Prosecutor and the juge d’instruction: Judicial Supervision in France, Theory and Practice’ British Journal of Criminology (2001) 41(2) 342-61
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