adversarial and inquisitorial legal systems

Question 1

what is an adversarial system?

Answer 1

the parties fight it out in front of the independent judiciary who act as a referee

Question 2

what is an inquisitorial system?

Answer 2

the independent judiciary investigates rhetoric case and with help of the parties establishes the facts, upon which judgment is based

Question 3

what is case law in adversarial systems?

Answer 3

previous decisions by higher courts are binding on lower courts

Question 4

what is case law in inquisitorial systems?

Answer 4

little use of judicial precedent as a binding principle, but reliance on statutes and codes

Question 5

what is discretion?

Answer 5

the ability to judge the right and wrong and hold someone liable for their conduct

Question 6

how are lawyers used in adversarial systems?

Answer 6

play a central role by presenting each side’s case, and examining/cross-examining witnesses

Question 7

how are lawyers used in inquisitorial systems?

Answer 7

the defence may confront witnesses at some stage during proceeding

Question 8

what does ECHR Article 6 state?

Answer 8

everyone is entitled to a fair and public hearing and is presumed innocent until proven guilty

Question 9

how are victims used in adversarial systems?

Answer 9

victims is largely a witness and not a party to the proceeding, the state in the person of the prosecutor acts on behalf of victims

Question 10

how are victims used in inquisitorial systems?

Answer 10

victims may have status as a party of the proceedings

Question 11

what can victims give in court to help the prosecution?

Answer 11

a victim impact/personal statement

Question 12

how is evidence collected in adversarial systems?

Answer 12

parties are responsible for gathering evidence where the evaluation of the evidence is left for the judge during the trial. each witness gives their evidence and may be cross-examined

Question 13

how is evidence collected in inquisitorial systems?

Answer 13

collected during pre-trail by independent prosecutor, record of evidence already made and available to both prosecution and defence. examining magistrate may prepare file of evidence

Question 14

what is the rule of evidence in adversarial systems?

Answer 14

evidence is prejudicial or of little probative value, or falls within exclusionary rules will not be admitted

Question 15

what is the rule of evidence in inquisitorial systems?

Answer 15

more lenient and admitted if judge decides is relevant

Question 16

what is pre-trial like in adversarial systems?

Answer 16

the emphasis is on the trial itself meaning the pre-trial isn’t as important/relevant

Question 17

what is pre-trail like in inquisitorial systems?

Answer 17

has 3 stages of process:
1. investigation where evidence is collected
2. examination where a written record of evidence is made
3. case is presented to trail judge

Question 18

what is trail like in adversarial systems?

Answer 18

requires prosecutor and defence to offer their version of events and argue their case before the judge/judge

Question 19

what is the trial like in inquisitorial systems?

Answer 19

present case to trail judge and allow lawyers to present oral arguments in public

Question 20

what are judges role
in adversarial systems?

Answer 20

a ‘referee’ where lawyers are responsible for questioning witness and introducing evidence

Question 21

what are the judges role in inquisitorial systems?

Answer 21

interrogator and carries out of most of the witnesses examination

Question 22

what are the juries role in adversarial systems?

Answer 22

evaluate evidence and reach a final verdict to ensure a fair trial

Question 23

what are the role of juries in inquisitorial systems?

Answer 23

don’t typically play a role, instead the judge does the majority of the work

Question 24

how do the courts differ in both adversarial and inquisitorial systems?

Answer 24

adversarial system courts are a ‘neutral arena’ for opposing parties to present their case, whilst inquisitorial systems judges actively investigate and gather evidence to uncover the truth

Question 25

what is an advantage and disadvantage to using adversarial systems?

Answer 25

advantage - thorough examination through the opposing parties competing leading to more legal arguments made

disadvantage - create imbalanced power as parties with more resources have a greater ability to present their case

Question 26

what is an advantage and disadvantage to using inquisitorial systems?

Answer 26

advantage - judge has an active role leading to more thorough and impartial evidence examination

disadvantage - limits the role of parties involved reducing the ability to present their perspective of the case