Adversarial vs. Inquisitorial Flashcards
The ______ legal system is the most popular system around the world, constituting the legal system for just under x% of countries.
The INQUISITORIAL legal system is the most popular system around the world, constituting the legal system for just under 50% of countries.
How many countries employ the inquisitorial legal system?
Around 130 countries have an inquisitorial system.
How many countries use the adversarial system?
Around 80 countries use the adversarial system.
In Europe, the UK is the only system which uses an ____ system of justice.
In Europe, the UK is the only system which uses an ADVERSARIAL system of justice.
Many countries which were once under British law such as Singapore and I____ have a common law/____ system like we do here in the UK.
Many countries which were once under British law such as Singapore and INDIA have a common law/ADVERSARIAL system like we do here in the UK.
What characterises an inquisitorial legal system?
In an inquisitorial legal system, the law is ____ law. Law is created by politicians in parliament and judges ___ follow these laws. As such, judges have very ____ freedom in the way in which they interpret civil law in an inquisitorial legal system. Civil laws are ___, that is, they are bundled together but do not overlap or ___ one another. Civil laws are so detailed that they offer a sense of certainty and predictability in terms of case outcomes. In the courts of inquisitorial legal systems, the purpose is to reach the ___ rather than ____ a battle. Unlike in common law, the presumption of innocence is ___ part of the inquisitorial legal system, however it is generally adopted.
In an inquisitorial legal system, the law is CIVIL law. Law is created by politicians in parliament and judges MUST follow these laws. As such, judges have very LITTLE freedom in the way in which they interpret civil law in an inquisitorial legal system. Civil laws are CODIFIED, that is, they are bundled together but do not overlap or CONTRADICT one another. Civil laws are so detailed that they offer a sense of certainty and predictability in terms of case outcomes. In the courts of inquisitorial legal systems, the purpose is to reach the TRUTH rather than WIN a battle. Unlike in common law, the presumption of innocence is NOT part of the inquisitorial legal system, however it is generally adopted.
What characterises an adversarial legal system?
In adversarial systems, the law is ___ law. That is, the law is based on case outcomes. In an adversarial system, judges have ___ freedom in terms of how they interpret the law. As such, the law is subject to ___ changes which enable it to evolve to adapt to trends in political, legal and social philosophy. Under an adversarial legal system, the rights of an individual are ___ to the rights of the state. Arguably, this can cause problems in cases of minor crimes, such as petty theft, as the defendant can claim a vast amount of support such as right to counsel, when it may be ___ that the defendant is guilty. Embedded in the adversarial legal system is the presumption of innocence. That is, defendants are assumed to be innocent until ___ guilty.
In adversarial systems, the law is COMMON law. That is, the law is based on case outcomes. In an adversarial system, judges have MORE freedom in terms of how they interpret the law. As such, the law is subject to GRADUAL changes which enable it to evolve to adapt to trends in political, legal and social philosophy. Under an adversarial legal system, the rights of an individual are EQUAL to the rights of the state. Arguably, this can cause problems in cases of minor crimes, such as petty theft, as the defendant can claim a vast amount of support such as right to counsel, when it may be CLEAR that the defendant is guilty. Embedded in the adversarial legal system is the presumption of innocence. That is, defendants are assumed to be innocent until PROVEN guilty.
Differences in arrest:
Under an adversarial system, when an arrest is made, suspects are informed of their right to remain ___. This right originates from the ___ rules. However, knowledge of the ___ rules is limited and in fact, most people do ___ choose to remain silent, even if there is no counsel present (Leo, 1995).
Additionally, the suspect is informed of their right to counsel and that anything that they do say may be given as evidence. Interestingly, Kassin (2005) found that innocent people are ___ to speak out, even when reminded of their right to remain ___ and even before counsel are present. This is because it is common for an innocent individual to hold the naïve belief that their innocence will set them free (Kassin, 2005).
By contrast, once an arrest has been made in an inquisitorial system, the suspect will be informed before every ___ of their right to remain silent. Similarly to in the adversarial system, suspects ___ choose to remain silent.
Under an adversarial system, when an arrest is made, suspects are informed of their right to remain SILENT. This right originates from the MIRANDA rules. However, knowledge of the MIRANDA rules is limited and in fact, most people do NOT choose to remain silent, even if there is no counsel present (Leo, 1995).
Additionally, the suspect is informed of their right to counsel and that anything that they do say may be given as evidence. Interestingly, Kassin (2005) found that innocent people are LIKELY to speak out, even when reminded of their right to remain SILENT and even before counsel are present. This is because it is common for an innocent individual to hold the naïve belief that their innocence will set them free (Kassin, 2005).
By contrast, once an arrest has been made in an inquisitorial system, the suspect will be informed before every INTERVIEW of their right to remain silent. Similarly to in the adversarial system, suspects RARELY choose to remain silent.
Differences in confessions:
In the adversarial system, if a written and signed confession exists, the case will be ___. However, false confessions can be obtained using techniques such as the ___ technique (used particularly frequently in the ___), which involves stating ___ in order to get the suspect to confess, such as ‘your co-defendants have confessed’, ‘you have been picked out of a line up’ and ‘you have failed your polygraph test’.
By contrast, in the inquisitorial system, even if the suspect does confess, the confession itself will be examined for ____. Therefore, innocent suspects who would otherwise have been motivated to submit a false confession to avoid attending court no longer have a motivation to submit a false confession.
Up until recently, the Dutch have placed great trust in the integrity of their police. However, this has been recently challenged. For example, a suspected drug dealer who wished to exercise his right to silence stated ‘I use my right to remain silent’ for all questions, but the police recorded ‘I refuse to tell you who paid all my cocaine’.
In the adversarial system, if a written and signed confession exists, the case will be CLOSED. However, false confessions can be obtained using techniques such as the REID technique (used particularly frequently in the USA), which involves stating LIES in order to get the suspect to confess, such as ‘your co-defendants have confessed’, ‘you have been picked out of a line up’ and ‘you have failed your polygraph test’.
By contrast, in the inquisitorial system, even if the suspect does confess, the confession itself will be examined for VALIDITY. Therefore, innocent suspects who would otherwise have been motivated to submit a false confession to avoid attending court no longer have a motivation to submit a false confession.
Up until recently, the Dutch have placed great trust in the integrity of their police. However, this has been recently challenged. For example, a suspected drug dealer who wished to exercise his right to silence stated ‘I use my right to remain silent’ for all questions, but the police recorded ‘I refuse to tell you who paid all my cocaine’.
Differences in right to counsel:
In the adversarial system, the suspect has the right to counsel during ___ interrogations. However, most suspects in the ____ do not exercise their right to counsel. Under an adversarial system, if a suspect cannot pay, a Government ___ is appointed. However, if the suspect can pay then they can get the best lawyers e.g. OJ Simpson trial.
By contrast, in the inquisitorial system there is ____ right to counsel. However, in the ___, counsel are invited to interrogation. Similarly to in the adversarial system, if a suspect cannot pay for counsel, in the Netherlands suspects can select counsel and the ____ will pay.
In the adversarial system, the suspect has the right to counsel during ALL interrogations. However, most suspects in the USA do not exercise their right to counsel. Under an adversarial system, if a suspect cannot pay, a Government ATTORNEY is appointed. However, if the suspect can pay then they can get the best lawyers e.g. OJ Simpson trial.
By contrast, in the inquisitorial system there is NO right to counsel. However, in the NETHERLANDS, counsel are invited to interrogation. Similarly to in the adversarial system, if a suspect cannot pay for counsel, in the Netherlands suspects can select counsel and the STATE will pay.
Under both systems, a case will be _____ if there is insufficient evidence from the _____.
Under both systems, a case will be DROPPED if there is insufficient evidence from the PROSECUTION.
Under the adversarial system in the US, plea bargaining occurs in what percentage of cases?
90%
Formally speaking, plea bargaining does not occur in inquisitorial systems as suspects do not submit a plea. However, there is ____ to suggest that plea bargaining does occasionally occur in inquisitorial systems.
Formally speaking, plea bargaining does not occur in inquisitorial systems as suspects do not submit a plea. However, there is EVIDENCE to suggest that plea bargaining does occasionally occur in inquisitorial systems.
Differences in custody pre-trail:
In the adversarial system, suspects may be released on ___ prior to the trail. By contrast, inquisitorial systems have ____ bail system. Instead, suspects may be detained for up to ___ hours. This can be extended if there is a risk of the suspect fleeing, committing more offences, or tampering with ____.
In the adversarial system, suspects may be released on BAIL prior to the trail. By contrast, inquisitorial systems have NO bail system. Instead, suspects may be detained for up to 6 hours. This can be extended if there is a risk of the suspect fleeing, committing more offences, or tampering with EVIDENCE.
Differences in the gathering of evidence:
In the adversarial system, it is the responsibility of opposing parties to collect evidence. By contrast, in the inquisitorial system, there is an ____ phase whereby a government official collects relevant evidence. Next, there is an ____ phase whereby a judge looks at the evidence and decides whether the case should proceed.
In France, the judge plays a very active role in the gathering of evidence. By contrast, judges in adversarial systems, such as judges in England, rarely leave their chambers and have very little if anything to do with the collection of evidence.
In the adversarial system, it is the responsibility of opposing parties to collect evidence. By contrast, in the inquisitorial system, there is an INVESTIGATIVE phase whereby a government official collects relevant evidence. Next, there is an EXAMINATION phase whereby a judge looks at the evidence and decides whether the case should proceed.
In France, the judge plays a very active role in the gathering of evidence. By contrast, judges in adversarial systems, such as judges in England, rarely leave their chambers and have very little if anything to do with the collection of evidence.
In the adversarial system, the judge acts as a ____ who ensures that the trail follows due ____. In the lower courts, the judge decides guilt and sentence. In the higher courts, the ___ decides guilt and the ___ decides the sentence (although sometimes judges are restricted by mandatory sentences).
In the adversarial system, the judge acts as a REFEREE who ensures that the trail follows due PROCESS. In the lower courts, the judge decides guilt and sentence. In the higher courts, the JURY decides guilt and the JUDGE decides the sentence (although sometimes judges are restricted by mandatory sentences).
