adversarial and inquisitorial legal systems Flashcards
what is an adversarial system?
the parties fight it out in front of the independent judiciary who act as a referee
what is an inquisitorial system?
the independent judiciary investigates rhetoric case and with help of the parties establishes the facts, upon which judgment is based
what is case law in adversarial systems?
previous decisions by higher courts are binding on lower courts
what is case law in inquisitorial systems?
little use of judicial precedent as a binding principle, but reliance on statutes and codes
what is discretion?
the ability to judge the right and wrong and hold someone liable for their conduct
how are lawyers used in adversarial systems?
play a central role by presenting each side’s case, and examining/cross-examining witnesses
how are lawyers used in inquisitorial systems?
the defence may confront witnesses at some stage during proceeding
what does ECHR Article 6 state?
everyone is entitled to a fair and public hearing and is presumed innocent until proven guilty
how are victims used in adversarial systems?
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
how are victims used in inquisitorial systems?
victims may have status as a party of the proceedings
what can victims give in court to help the prosecution?
a victim impact/personal statement
how is evidence collected in adversarial systems?
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
how is evidence collected in inquisitorial systems?
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
what is the rule of evidence in adversarial systems?
evidence is prejudicial or of little probative value, or falls within exclusionary rules will not be admitted
what is the rule of evidence in inquisitorial systems?
more lenient and admitted if judge decides is relevant
what is pre-trial like in adversarial systems?
the emphasis is on the trial itself meaning the pre-trial isn’t as important/relevant
what is pre-trail like in inquisitorial systems?
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
what is trail like in adversarial systems?
requires prosecutor and defence to offer their version of events and argue their case before the judge/judge
what is the trial like in inquisitorial systems?
present case to trail judge and allow lawyers to present oral arguments in public
what are judges role
in adversarial systems?
a ‘referee’ where lawyers are responsible for questioning witness and introducing evidence
what are the judges role in inquisitorial systems?
interrogator and carries out of most of the witnesses examination
what are the juries role in adversarial systems?
evaluate evidence and reach a final verdict to ensure a fair trial
what are the role of juries in inquisitorial systems?
don’t typically play a role, instead the judge does the majority of the work
how do the courts differ in both adversarial and inquisitorial systems?
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
what is an advantage and disadvantage to using adversarial systems?
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
what is an advantage and disadvantage to using inquisitorial systems?
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
