Adversarial System

The adversarial system (or adversary system) of law is the system of law that relies on the contest between each advocate representing his or her party’s positions and involves an impartial person or group of people, usually a jury or judge, trying to determine the truth of the case.[1][2][3] As opposed to that, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case.The adversarial system is generally adopted in common law countries. An exception, for instance in the U.S., may be made for minor violations, such as traffic offences. On the continent of Europe among some civil law systems the inquisitorial system may be used for some types of cases.The adversarial system is the two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.

In many jurisdictions the approaches of each system are often formal differences in the way cases are reviewed. It is questionable that the results would be different if cases were conducted under the differing approaches; in fact no statistics exist that can show that these systems do not come to the same result. However, these approaches are often a matter of national pride and there are opinions amongst jurists about the merits of the differing approaches and their drawbacks as well. Proponents of the adversarial system often argue that the system is more fair and less prone to abuse than the inquisitional approach, because it allows less room for the state to be biased against the defendant. It also allows most private litigants to settle their disputes in an amicable manner through discovery and pre-trial settlements in which non-contested facts are agreed upon and not dealt with during the trial process. In addition, adversarial procedure defenders argue that the inquisitorial court systems are overly institutionalized and removed from the average citizen.

The common law trial lawyer has ample opportunity to uncover the truth in a laboratory called the courtroom. Most cases that go to trial are carefully prepared through a discovery process that aids in the review of evidence and testimony before it is presented to judge or jury. The lawyers involved have a very good idea of the scope of agreement and disagreement of the issues to present at trial which develops much in the same way as the role of investigative judges. It has also been argued that a trial by a jury of one’s peers may be more impartial than any government paid inquisitor and a panel of his peers. In the United States the right to a trial by a jury of one’s peers who are common citizens is guaranteed by the United States Constitution. Proponents of inquisitorial justice dispute these points. They point out that most cases in adversarial systems are actually resolved by plea bargain and settlement. Plea bargain as a system does not exist in inquisitorial system. Most legal cases in these systems do not go to trial; this can lead to great injustice when the defendant has an unskilled or overworked attorney, which is likely to be the case when the defendant is poor.

In addition, proponents of inquisitorial systems argue that the plea bargain system causes the participants within the system to act in perverse ways, in that it encourages prosecutors to bring charges far in excess of what is warranted and defendants to plead guilty even when they believe that they are not. Furthermore, proponents of inquisitorial systems also argue that the power of the judge is limited by the use of lay assessors and that a panel of judges may not necessarily be more biased than a jury. The adversarial system has also been attacked for failing to accurately resolve complex technical issue such as science, technology, or tax or accounting regulation. In the adversarial system, juries encounter such complex technical cases for the first time. This would lead to unjust outcomes for one or both of the litigating parties due to the lack of understanding of the evidence presented.

In the inquisitorial system, the judge, though not an expert in each technical subject, would have gone through similar tax, forensic, or accounting related issues countless times, and is thus unlikely to be confused or manipulated. Moreover, verdict in inquisitional case must include written justification by judges. For this reason, when new evidence emerge, the defence and/or the prosecutor can make an appeal on the basis that the verdict was incorrectly reasoned. On the other hand, in adversarial system, neither defence nor prosecutor know the actual discussion which took place and the jury is sworn to secrecy.

Therefore, the appeal once conviction occur, must be made on the basis that contest between the defence and the prosecutor was not fair, which from the perspective of inquisitional system, is not same as the matter of truth. Disadvantages of using a jury on criminal matters can include: 1. Expensive to operate and extends the time taken to hear cases 2. Jury service imposes an unfair economic and mental burden on those chosen to serve 3. Competence of non-professionals is questionable as they are considered ‘amateurs’ in the face of the law 4. Jurors can be unduly influenced by media coverage of their case 5. Easily persuaded by good counsel

6. Do not give reasons for their decisions (process is secret – no debate) 7. Jurors have difficulty in assessing damages and analysing complex evidence An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used in some countries with civil legal systems as opposed to case law systems. Also countries using case law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and case law system. Some legal scholars consider “inquisitorial” misleading, and prefer the word “nonadversarial”.[1]

The inquisitorial system applies to questions of criminal procedure as opposed to questions of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil legal systems. However, some jurists do not recognize this dichotomy and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures. In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge to act more like an inquisitor than an arbiter of justice. Although international tribunals intended to try crimes against humanity, such as the Nuremberg Trials and the International Criminal Court, have generally used a version of the adversarial system, they have also incorporated some key features of the inquisitorial system, such as the use of professional career judges, and in the case of the International Criminal Court, the use of a pre-trial examining or investigative division.[2]

Inquisitorial tribunals in common law countries

Administrative proceedings in many common law jurisdictions may be similar to their civil law counterparts and be conducted on a more inquisitorial model. A good example are the many administrative boards such as the New York City Traffic Violations Bureau, a minor tribunal that deals with traffic violations where the adjudicator also functions as the prosecutor and questions the witnesses; he or she also renders judgment and sets the fine to be paid. These types of tribunals or boards can be found in most modern democracies. They function as an expedited form of justice where the state agents conduct an initial investigation and the adjudicator’s job is to confirm these preliminary findings through a simplified form of procedure that grants some basic amount of due process or fundamental justice in which the accused party has an opportunity to place his or her objections on the record.