Inquisitorial and Adversarial Systems

An inquisitorial system of criminal justice offers the best system for ensuring that those guilty of committing criminal offences are convicted and that the innocent are acquitted. Inquisitorial and Adversarial Systems Defined and Compared In England and Wales and other common law countries such as the United States, criminal proceedings are operated on the basis of what is sometimes referred to as an adversarial system of justice. This differs from the so-called inquisitorial system of justice which is employed in other legal jurisdictions including, in particular many continental European jurisdictions.

[1] Briefly, in the adversarial system the sitting magistrates or in more serious cases a jury decides on guilt having heard the opposing defence and prosecution presentations of the case. The defence and prosecution parties are at liberty to deliver their case as they deem appropriate within certain boundaries, and they are free to call and examine witnesses as they see fit.

Not guilty pleas result in what effectively amounts to a contest between the two parties debating the facts of a case and this is the origin of the term adversarial.

[2] The adversarial system therefore relies on the skill of the opposing advocates representing their respective party’s interests and not on some neutral party, usually the judge, trying to ascertain the truth of the case. Judges in an adversarial system are generally bound to focus their efforts on ensuring the fair play of due process, and fundamental justice. Inter alia, adversarial judges determine, typically when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute. On the other hand, as stated above, the inquisitorial system is that which is employed on the continent of Europe among most (but not all) systems of civil law (ie. those deriving from the Roman or Napoleonic Codes).

[3] The inquisitorial system requires a judge or a group of judges actively to investigate the case before them. An inquisitorial system can therefore be defined as a legal system in which the court or a part of the court is proactively involved in determining the facts of the case. This differs from the adversarial system where, as stated, the function of the court is solely to act as an impartial arbiter and referee between parties concerned. In general terms the inquisitorial system is applicable to questions of criminal procedure as distinct from matters of substantial law; that is to say, an inquisitorial system determines the way in which criminal inquiries and trials are conducted, not the type of crimes which can be prosecuted, or the range of sentences that they may carry. That said, the line between adversarial and inquisitorial systems is to some extent blurred. In some adversarial jurisdictions the trial judge is entitled to participate in the fact finding inquiry by questioning witnesses in certain circumstances.

Adversarial rules on the admissibility of evidence may also allow the judge to act more like an enquirer than an arbiter of justice. Possible Advantages of the Inquisitorial Process In inquisitorial systems the judge is involved in the investigation and in the preparation of evidence by the police, and he or she is concerned as to how the various parties will ultimately present their case at trial. It is an inquisitorial judge’s role to lead the questioning of witnesses while prosecution and defence parties are entitled to ask supplementary questions. The influence of the judge in the process has the effect of reducing the level of contest between the two opposing parties, something which is a defining characteristic of the adversarial process. It is submitted that allowing an expert neutral party to lead the examination in chief of witnesses would take a lot of the steam and heat and posturing out of the United Kingdom’s current adversarial system and reduce the risk of intimidation and threat and the risk that one highly gifted advocate could unfairly tilt the balance of the trial.

The quality of evidence should improve as a consequence and there would be less argument between advocates in front of the bench, which often distracts the court and wastes time. A key feature of the French inquisitorial system in criminal justice (and in other countries which operate on similar lines) is the function of the juge d’instruction, who can be conceptualised as the investigating magistrate. The juge d’instruction is a judge given the responsibility for conducting investigations into serious crimes or complicated inquiries. The juge d’instruction is independent from the political power as well as the prosecution and such a figure could prove useful in the English system, which has recently been criticised for allowing miscarriages of justice such as that experienced by the so-called Guildford Four, who were released after fifteen years of imprisonment in 1989 due to concerns over the integrity of the original police investigation.

[4] An inquisitorial juge d’instruction could offer a useful check and balance in the process of investigation and case building which could prevent pregnable or dubious prosecutions being attempted. Contrary to the prosecution, which is, at the trial stage, supervised by the Minister of Justice in an inquisitorial system, the juge d’instruction, as a judge, is independent which insulates him or her from political pressures and corruption to some extent, such as those complained of in the English adversarial system in other notorious cases of miscarriage of justice such as that of the celebrated Birmingham Six.

[5] An inquisitorial judge examines suspects and witnesses, and is empowered to order searches or other investigations. The raison d’tre of the juge d’instruction is the finding of the truth, not the prosecution of a particular person. As such his duty is to look both for incriminatory and exculpatory evidence (à charge et à d©charge). Both the prosecution and the defence may request the judge to take actions, and the judge’s decisions can be appealed before a Court of Appeal.

[6] Another strength of the inquisitorial system over the adversarial system is that as a consequence of the judicial enquiry and the possibility for judicial proceedings to be cancelled on evidential or procedural grounds during the initial phase, cases in which procedure is suspect or the evidence is weak tend not to proceed to the stage of trial. This eliminates the adversarial practice of plea bargaining (which is popular, for example, in the United States) in strong cases for the prosecution, which are tried in court.

[7] Supporters of the adversarial system of criminal justice often argue that the system is fairer than the inquisitional style, due to the fact that it offers less opportunity for state bias against the defendant.

However, this is hard to accept given that in adversarial prosecutions are run exclusively by the state. In addition, proponents of adversarial procedure contend that the inquisitorial court systems are overly institutionalised and distant from the typical citizen, given that common law lawyers have a better chance of establishing the truth in forensic environment of the courtroom. It could be argued that common law lawyers are equipped, after the discovery stage, to understand the scope and tenor of consensus and disagreement on the issues at the point of trial in similar fashion to investigative judges in the inquisitorial system. It has also been argued that a trial by a jury of one’s peers is likely to be more impartial than a state salaried inquisitor and a panel of his peers. A move away from such a system would cause a seismic shift in many jurisdictions. In the United States, for example, the Constitution enshrines the right to a trial by a jury of peers who are themselves common citizens. Naturally, those in favour of a system of inquisitorial justice contradict these observations, pointing out that most cases in adversarial systems are in practice resolved by plea bargain and settlement. Most criminal cases in adversarial systems do not reach trial and this can lead to great injustice when the defendant is represented by an overworked or poorly skilled advocate, which is likely to be the case where the defendant cannot afford to pay for the best representation. Moreover, supporters of inquisitorial systems contend that the plea bargain system introduces perversity and idiosyncrasy into adversarial systems, because it prompts the prosecution to bring excessive charges and encourages the defendant to plead guilty to crimes of which they are not guilty. Moreover, those in favour of inquisitorial systems also submit that the power of the judge is controlled by the use of lay assessors and that there is no reason why an experienced panel of judges should necessarily be more susceptible to bias than a jury. In some countries that use an inquisitorial system jury trials are available for some categories of crime but are unpopular given the common belief that any defendant who requests a trial by jury has a case that is so tenuous that they would rather risk pleading their case before lay strangers than experienced and professional judges. Hence, jurors in those countries are very unsympathetic toward defendants.

[8] One of the enduring criticisms of the adversarial system is that the ability of a party to obtain an acquittal or less serious conviction may depend more upon the quality of their lawyers than on the salient facts of the case. This gives rise to a fear that adversarial justice offers a better system for rich defendants than poor ones. A cheaper and less able lawyer may fail to influence a jury as to reality of a case, as easily as a highly effective and highly expensive advocate.

This perception has been highlighted in high profile cases such as that of OJ Simpson

[9] and Michael Jackson[10] in the United States, where the respective defendants were able to afford to pay for the very finest lawyers that money can buy, and as a consequence avoid prosecution for serious crimes on facts that expert observers have deemed compelling enough to convict “ordinary” defendants. It can be argued that adversarial systems unfairly boil down to who has the best lawyers and that it is in the interests of lawyers to add complexity and difficulty to an already fraught situation. A quote from famous actor Danny Devito from the 1991 film Other People’s Money[11] may seem out of place in a paper of this nature but it offers a compelling indictment of the adversarial system, which provided the backdrop for the movie. He said: “lawyers are like nuclear weapons, you have yours, I have mine, and when we use them they %^%$ everything up.” Another important difference between the inquisitional system and the adversarial system is highlighted when a defendant confesses to a crime. In an adversary system the case proceeds to sentencing. In contrast, in an inquisitional system of criminal justice, a defendant’s confession is just one more fact to be entered into evidence, and such an admission does not allow the prosecution to avoid the responsibility to present a full and compelling case. It is submitted by this commentator that this reduces the risk of false confessions, which are more common than one might think, leading to wrongful convictions. Other differences lie in the rules of evidence applicable in each of the major systems of criminal justice. In recognition of the fact that the adversarial system presumes that evidence must be presented to laymen rather than to professional judges, the rules of evidence are significantly more exacting than in inquisitorial courts. Important evidence such as persuasive or high quality hearsay, may therefore be excluded in the adversarial system and thus effect the outcome of a trial. Concluding Comments The above commentary has considered key aspects of the inquisitorial and adversarial systems and it is argued that on balance, the inquisitorial system offers a better and more effective mode of governance for criminal justice than the adversarial system currently employed in the United Kingdom and other common law jurisdictions. It is contended that such a reform would also represent a modernisation of the existing system and create a new legal order more in keeping with other twenty first century institutions and practices. Historians can trace the adversarial system of justice right back to the medieval practice of trial by combat, in which certain litigants, in particular women, were allowed a champion to represent them. Need it be said that this is hardly an effective way to determine guilt or innocence, and the ability of a defendant to call upon a mighty champion, or in modern terms, a charismatic, brilliant and expensive lawyer, should not be allowed to sway the determination and due process of justice. In 1993 a Royal Commission considered the debate as to the relative strengths and weaknesses of both systems and found that, on balance, England and Wales should resist the move to an inquisitorial system.[12] On the other hand, more recent British Civil Justice reforms initiated by Lord Woolf (ie. the Civil Procedure Rules otherwise known as ‘CPR’) have been prefaced by a case management system under the control of the presiding judge rather than by the opposing lawyers in the case. It is submitted that case management systems tip-toeing closer to the inquisitorial model are also being implemented in the United States of America. Consequently, although the 1993 Royal Commission decided that England and Wales should retain the adversarial system, it seems that inquisitorial practices are slowly creeping into British justice. If these prove successful it is likely that pressure will begin to build for more comprehensive adoption of the inquisitorial model, especially if high profile instances highlighting the weaknesses of the adversarial system continue to occur, and in particular if the general public concern relating to the undue influence of star lawyers who are out of reach of most of the population persists. Jury service is unpopular among the general public and can prove highly disruptive where cases run on from days into weeks. Its removal or reduction may well prove another temptation for public opinion if a proposal to move to an inquisitorial system were to be adopted by the manifesto of one of the major parties and tested at a general election.

Although it is admitted that the electorate typically profess to harbour considerable pride in the present adversarial system, some of the arguments and analysis set out in this paper might well persuade a sufficient majority to support such a reform. In closing it is submitted that, although the adversarial system is time honoured and has generally served this country and its overarching framework of justice well, a popular and convincing case could be made out for the adoption of an inquisitorial process on a number of substantive and procedural grounds. THE END WORD COUNT: 2518 (excluding footnotes) BIBLIOGRAPHY Hale et al, Criminology, (2005) Oxford University Press Pakes, F., Comparative Criminal Justice, (2003) Willan Publishing Harding, C., Criminal Justice in Europe: A Comparative Study, (1995) Clarendon Press BBC News Archive: https://news.bbc.co.uk/ (various documents) Wikipedia Online Encyclopaedia: https://en.wikipedia.org/wiki/Birmingham_Six Hodgson, J. (2005) Inquisitorial and Adversarial Procedure: Deriving Normative Consequences for the Trial, in A. Duff et al, (eds) The Trial on Trial Vol 2: Calling to Account and Judgment Oxford: Hart Publishing. 1

---

Footnotes

[1] For an insightful analysis see: Pakes, F., Comparative Criminal Justice, (2003) Willan Publishing.

[2] See for comment: Hale et al, Criminology, (2005) Oxford University Press.

[3] See: Harding, C., Criminal Justice in Europe: A Comparative Study, (1995) Clarendon Press.

[4] See for comment: https://news.bbc.co.uk/onthisday/hi/dates/stories/october/19/newsid_2490000/2490039.stm.

[5] See for full description: https://en.wikipedia.org/wiki/Birmingham_Six; and for contemporary comment see: https://news.bbc.co.uk/onthisday/hi/dates/stories/march/14/newsid_2543000/2543613.stm.

[6] It should be noted that juges d’instructions are appointed only for the most serious crimes (such as murder and rape), and for less serious crimes where such entail a certain level of complexity (such as embezzlement, misuse of public funds, corruption).

[7] See for general comment: Pakes, F., Comparative Criminal Justice, (2003) Willan Publishing.

[8] A good example is the Japanese system.

[9] https://en.wikipedia.org/wiki/Talk:O._J._Simpson. [10] https://edition.cnn.com/2005/LAW/06/13/jackson.trial/. [11] https://www.imdb.com/title/tt0102609/. [12] See for comment: Hodgson, J. (2005) Inquisitorial and Adversarial Procedure: Deriving Normative Consequences for the Trial, in A. Duff et al, (eds) The Trial on Trial Vol 2: Calling to Account and Judgment Oxford: Hart Publishing.

Cite this page