Comparison and Contrast between the Adversarial and Inquisitorial Justice Systems

 

Abstract

Each country has its fundamental procedures and rules for ensuring justice and fairness in the legal system. The effectiveness of the legal systems is assessed based on how they facilitate efficiency, truth-finding, and fairness. With many countries, especially those with deeply rooted Civil Laws, shifting from an inquisitorial system to adversarial systems, more evidence of similarities and differences between the two systems are drawn. This paper compares and contrasts the adversarial and inquisitorial justices systems in terms of their definitions, historical concepts, and role of judges, rule of evidence, witnesses, the burden of proof and civil litigation.

Keywords: Adversarial, Inquisitorial, Justice, Law,

Introduction

The main function of a criminal justice system protects the innocent and to punish the lawbreakers. Scholars of civil procedures most often compare the continental European and American legal system basing their arguments on the distinct functions accomplished by lawyers and judges of two legal systems (Gunn & Mevis, 2018). The similarities are drawn between the inquisitorial and adversarial procedural systems. The two diverse paradigms refer to the distinct roles played by a judge in the conduct of a civil base. These justice systems insist on the right arbitration of protection of the innocent and the accused. However, there are several dissimilarities as on the procedural rules in each of the systems. Both systems have been developed in their historical settings, have their disadvantages and advantages, and serve the common purpose of justice.

Definitions

There are several definitions of the Inquisitorial system. According to Pakes (2019), the inquisitorial system is a procedure of legal practice that involves a judge endeavoring to find out on facts while representing the interest of the state in any trial. The judge is not often considered a passive receiver of any information, but he plays a central role in the process of evidence gathering and interrogation of the witness. This justice system is most prominent in common law countries like Chile, Germany, France, Russia, Peru, and Belgium. Feeley (2017) alludes that the inquisitorial model of justice can be related to the Romano Germania System of Law, also referred to as the continental law system or the civil law system. Its main aim is attaining justice with the composite efforts of the prosecutor, police, court, and the defense lawyer. Additionally, the court does not regard the legal representation of the accused in this system as indispensable. Further Vogler (2017) argues that the judges are responsible for actively steering the search for questions and evidence from the defendant while the attorney’s play a passive role in suggesting the inquiries for the presiding judges.

On the other hand, the adversarial system also has different definitions by different authors. Feeley, (2017) defines an adversarial system as a process of legal practice in which parties to a certain controversy tend to collect and submit evidence, invite and question the witnesses and present their arguments before an impartial fact-finder. The fact-finders are often a jury or judge who remains neural and passive throughout the legal proceedings. The role of the judges is only to weigh the facts and provide a sensible verdict. They are not often directly involved in the presentation of evidence and questioning of the witnesses while the entire process is framed through strict rules for ensuring fairness and equality. The adversarial system is also based on the opposing sides that normally act as adversaries compete to convince the jury and the judge that their facts are more convincing (Pakes, 2019). In this case, the lawyers are often given free choices regarding the presented issues, the witnesses to invite, and what evidence they should adduce in support of their submissions. The adversarial justice system is present in countries like New Zealand, the United Kingdom, Australia, Cana, and the United States.

Historical background

Criminal Procedural Law Systems are categorized according to their families, which are the adversarial and inquisitorial systems. While the inquisitorial is akin to the states which follow the parameters of Civil Law, the adversarial system is associated with states that belong to the common law legal tradition (Hollander-Blumoff, 2016). The history of the inquisitorial system cannot be well comprehended if it is viewed from a dual perspective relating to the figure of the state and the church. From the beginning of Christianity, the compulsion to respect the introduced authority was abided by with deep devotion. As a first record, the inquisitorial system was established as an effective mechanism of addressing by the issue of heresy that was becoming a major problem of immense proportions to the Catholic Church. From this situation, the system was established by the Church of Rome in the thirteenth century. The institutions that represented this system were known as inquisition courts, which were responsible for conducting the trials of error that were committed by the Christians (Feeley, 2017). In the thirteenth century, the ecclesiastical courts of England started using the adjudication method whereby the defendants and the witnesses would get an inquisitorial pledge that was administered by a judge.

In the inquisitorial oath, the witnesses were required to vow truthfully to respond to all the questions presented. This system developed in England up to the 16^th century when it began becoming infamous due to the Court of Star Chamber (Gunn & Mevis, 2018). During the Reign of King Henry VIII, the power of this court progressed while it used torture as a way of compelling the defendants to take the inquisitorial oath. Ultimately, the Chamber was eradicated because it was repulsive to England and the basic liberty as they steadily shifted towards the adversarial system. After the French Revolution in Germany and France, a more advanced version of the inquisitorial system was established. From there it extended widely to several African, Asian, South American and the rest of continental Europe countries. In the contemporary world, the system used widely used than the inquisitorial system. Other nations like Italy blend both the inquisitorial and adversarial essentials in their justice system.

Just like the inquisitorial system, the adversarial system is linked with the relationship between the church and the state as an appropriate link with the legal tradition of the common law. The birthplace of adversarial justice model has historically been known to be the United Kingdom, along with its former colonies like the United States and Canada (Pakes, 2019). Other origins include; India, Singapore, Pakistan Malaysia, and Hong Kong in Asia. In the South Pacific, including Australia and New Zealand while in Africa, nations like Nigeria, Kenya, Uganda, and Tanzania were also considered origins of the system. The adversarial system vests the introduction of legal narratives incorporating lawyers, who were structurally the agents of the act and litigants under their direction and interests (Feeley, 2019). Presumably, the litigants were entitled to dominate the lawyer-directed construction of legal narrative in the courts. In the dispute resolution process, even the witnesses who are not parties to the litigation were considered more important.

In an adversarial system, the witness testimony was overwhelmingly presented in the court s orally unlike in the inquisitorial systems which involved the admission of more evidence during the trial through written declarations that were produced outside the trial process. The adversarial system seemed more likely to result in positive outcomes than the inquisitorial system since the parties were able to tell their own stories directly and be listened (Langer, 2015).  However, the historical dividing lines between the adversarial and inquisitorial systems began breaking down in the past several decades. Many nations that traditionally maintained inquisitorial systems started adopting in part or whole characteristics of adversarial systems. Countries of Latin America, for example, have adopted different versions of the adversarial system to reinstate their past inquisitorial model. Such countries include the federal system of Argentina including some of its provinces like Bolivia, Costa Rica, Colombia, the Dominican Republic, Chile, El Salvador, Ecuador, Guatemala, several states in Mexico, Paraguay, Peru, Venezuela and Nicaragua (Feeley, 2017). In 2011, Panama began transitioning its system towards an adversarial model while Mexico fully converted to the adversarial system in 2016 in its federal criminal justice systems.

 Judges Roles

In the adversarial system, the judges and magistrates are independent people whose work is to make sure that the verdict is fair and all the involved parties follow the rules of the court. The judges do not have any mandate of entering the arena but are entitled to leave it to the parties completely ( Roberson & Das, 2016). The judge also has to preside over the rules and trial on disputed issues of evidence and procedures, clarify evidence the evidence by asking the witnesses multiple questions, and conclude the verdict by compiling the jury’s facts and giving them advice on the most relevant law. In the adversarial system, the judges are barred from enquiring beyond the evidence and facts presented by the opposing lawyers. Their roles are majorly, and they are also impartial referees who advise the jury on law matters law.

The role of the judge in an inquisitorial system is dramatically different from that of the adversarial system.  As the name suggests, the inquisitorial system is based on inquiring into the cases; hence, judges are not limited to hear the parties’ submissions (Gunn & Mevis, 2015). They are entitled to direct the lawyers to call particular witnesses or address specific points. Unlike the adversarial system, the judges in the inquisitorial system direct the court proceedings and determine the truth. Therefore the judges, as investigating magistrates, conduct inquiries involving the questioning of suspects and witnesses and examine the evidence to find exculpatory and incriminating evidence. The defense lawyers and prosecution watch over the investigation conducted by taking any particular course of action, but the judges’ responsibility remains that of inquiry (Pakes, 2019). The decision-makers in the inquisitorial system are required to question the parties, investigate the facts, apply the laws on the presented facts, examine the law, and arrive at a consensus.

Despite the construct, the adversarial and inquisitorial systems share a similar feature on their roles of judges. Both methods depend on an impartial fact-finder for giving the verdict and presiding over the case. The judges are not allowed to show prejudice or bias on the witnesses or parties involved. They are mandated to remain impartial and independent (Vogler, 2017). The main purpose of this case is to protect the defendant from self-incrimination and making sure that everyone receives a fair trial.

 

Rule of Evidence

Both the adversarial and the inquisitorial systems share a common feature on the rules of evidence admission. In the adversarial system, some evidence is deemed inadmissible, which include prior convictions, privileged information, evidence obtained through legal search warrants, and hearsay (Langer, 2015). Similarly, such restrictions apply in the inquisitorial system though less harsh. For example, prior convictions are permitted though the evidence extracted through illegal means may remain inadmissible. This means that in both systems, actions taken when obtaining evidence should not ride over the fundamental rights of the witnesses like the right to confidentiality and privacy.

In the adversarial system, courts governed by strict rules of procedures and evidence. The witnesses involved are limited in the method and timing of coming up with new materials. There are also restrictions on the type of evidence which are produced (Feeley, 2017).  On the other hand, in the inquisitorial system, the judges or decision-makers can introduce any fresh evidence during the trial process. Furthermore, the inquisitorial system does not have any authoritarian rules of procedures and evidence. Evidence that can aid in finding out the truth is considered during examination.

 Evidence Collection

In the adversary system, the evidence is gathered by witnesses. In any court proceedings, the evidence gathered from a criminal case are often gathered in depositions before the trial (Roberson & Das, 2016). However, in a civil case, both sides collect the information during the discovery pleading and stage, excluding the statements of the witnesses. In the inquisitorial system, the examining judge is entitled to collect the evidence. A dossier, containing all evidence collected and statements made and protected by the examining judges.

Despite the increase of written proofs, the adversarial system, the system mainly depends on oral evidence. There exist strict rules of procedures and evidence (Feeley, 2017). On the other hand, the inquisitorial system mainly depends on written statements, even though the witnesses are questioned during the proceeding. There exist no stringent rules of evidence and procedures. Record and character evidence are not often available in the adversarial system. The evidence of odd characters is prohibited in a criminal since they are considered as unduly manipulate the case on the defendants (Volger, 2017). In the inquisitorial system, record and characters evidence are often on hand. Reports of the personality, records of the defendants in any criminal trial are often incorporated in the record. The judge investigating the case is entitled to have a comprehensive knowledge concerning the defendant’s background information.

Witnesses

In the adversarial system, the witnesses are free to respond to questions the questions asked and are generally. However, they are often cut off by the parties involved if they try to elaborating a point (Hollander-Blumoff, 2016). This means that vital information can be prevented or not be brought to light. In contrast, witnesses are entitled to tell their stories without being interpreted by questions. They are also allowed to provide their versions of the facts and information without being interrupted by any party.

As a result of the complex rules on procedures and evidence, every party in the adversary procedure are required to be represented by a professional legal representative who can understand the rules. The professional legal representatives for every party are required to prepare and argue for their cases during the court proceeding (Pakes, 2019). In the inquisitorial system, there is less need for legal representatives. The main role of the legal representatives is to help the judge or decision-makers in finding out the truth. The adversarial procedure puts much emphasis on party control, with involved parties being the determiners of whether the cases will proceed to court, method of trial, which court, and the evidence to be offered during the trial. On the other hand, the parties involved in the inquisitorial system have limited control over their cases. The judges predominantly control the cases.

 Standard and Burden of Proof

While the prime objective of the inquisitorial system is to find the truth of the matter before the court, in the adversarial system, it is expected that the truth will be brought out during the trial. However, in both cases, the standard and burden of proof are not as applicable since the cases are conducted by the judges from the investigation of evidence to the verdict.

The adversary system is intended to provide the involved parties with enough power over their cases and to provide them with equal chances of winning the cases. The truth sometimes may not always come out during the process (Langer, 2015). The inquisitorial system is developed lead to the truth with the judges investigating the case to establish the truth. The outcome may not lead to truth-finding since the judges might not uncover all the evidence presented.

Civil Litigation

            Litigation is divided into civil and criminal in the common law system. Civil litigation involves one party suing another as a way of establishing an entitlement to the privilege or right of denying the other parties’ entitlement (Roberson & Das, 2016). Civil litigation in the adversarial system differs from that of the inquisitorial system.  In the adversarial system, the plaintiff provides a claim statement that sets out the facts relied upon and the relief sought in the outcome. The plaintiff delivers a claim statement which sets out the facts relied on, and the consequence relief. The defendants have to bring out a defense admitting or denying the facts and set out any defenses, facts, or laws, relied upon by the defendant. What follows is the common discovery of the party’s credentials, which may lead to resolving the problem. Interrogatories or affirmation are expected with the culmination being a trial.

There are substantial similarities in civil litigation in a variety of inquisitorial systems. The plaintiff is required to file a claim statement, which involves bringing out the laws and facts relied upon by the plaintiff (Gunn & Mevis, 2018). Pleadings and discloser are exchanged in the documents to ensure that all points and arguments to support them advanced. Excluding the simple cases, one or more trials are presented before a preparatory judge. In due course, the judge transmits the case for trial and orders closure of the proceedings. Often the advocates for the parties involve little more than closing speeches, but the court can allow oral evidence in any suitable case. In the closure, the plaintiff considers its decision and gives its due course of action.

Conclusion

 

The inquisitorial and adversarial systems present various comparisons and contrasts in the criminal justice system. Both systems have diverse variations in the world has different countries have been modifying their criminal procedures in different ways over the years. The similarities and differences between the two systems are presented in their historical backgrounds, judges, evidence, witnesses, the burden of proof, and civil litigation. With the two types of legal traditions dominating the nature of investigation and trial in many countries, the role of the judges and courts may also differ. However, the main goal of the two systems is to ensure justice and fairness in the trial process.

 

 

 

 

 

 

 

 

 

 

 

 

 

References

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Feeley, M. (2017). Two models of the criminal justice system: An organizational perspective. In Crime, Law, and Society (pp. 119-137). Routledge.

Gunn, J., & Mevis, P. (2018). Adversarial Versus Inquisitorial Systems of Trial and Investigation in Criminal. Forensic Psychiatry and Psychology in Europe: A Cross-Border Study Guide, 1.

Hollander-Blumoff, R. (2016). Fairness beyond the adversary system: procedural justice norms for legal negotiation. Fordham L. Rev., 85, 2081.

Langer, M. (2015). In the Beginning was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems and Common and Civil Law in Comparative Criminal Procedure. Liber Amicorum in Honor of Professor Damaška (Duncker & Humblot, 2016), 16-03.

Pakes, F. (2019). Comparative criminal justice. Routledge.

Roberson, C., & Das, D. K. (2016). An introduction to comparative legal models of criminal justice. CRC Press.

Vogler, R. (2017). A world view of criminal justice. Routledge.