Aversarial and Inquisitorial

Question 1

General overview of adversarial

Answer 1

• Contest between two parties
• Equality of arms
• No dossier / no hearsay
• Passive judge
• Jury
• ‘Negotiated’ truth

Question 2

General overview of inquisitorial

Answer 2

• Only State capable of conducting investigations
• Active judge
• Dossier / hearsay evidence
• Objective / material truth

Question 3

In what does each system put inordinate faith?

Answer 3

• Adversarial: partisan manipuation of evidentiary materials can put an independent judge in a position to determine the truth
• Inquisitorial: the state is fair and legitimate / integrity of the state

Question 4

Accountability in inquisitorial

Answer 4

• Hierarchical structures of authorities (State benevolent and guarantor of public interest)

Question 5

Accountability in adversarial

Answer 5

• Negative image of state (minimalisitic view of functions)
• Less hierarchy (no lines of subordination)

Question 6

Pre-trial process in inquisitorial

Answer 6

• All parties look for a common objective truth (public interest)
• Dossier (safeguard as supervision and control)
• Investigative judge as safeguard
• No bargain about outcome

Question 7

Pre-trial process in adversarial

Answer 7

• Each party develops evidence (self-interest)
• Negotiation of the truth / plea bargain

Question 8

Trial stage in inquisitorial

Answer 8

• Two essentially unequal parties (inquiry by judge)
• Active judge (supported by PP): conduct, decide, evidence
• Compensation for inequality: trial public and oral
• Verification of dossier
• Hearsay is accepted

Question 9

Trial in adversarial

Answer 9

• Party contest
• Passive judge as a referee
• Crucial stage is public hearing (no hearsay)
• Confession terminates the search for the truth
• No dossier (fresh evidence)

Question 10

Convergence of adversarial

Answer 10

• More regulation on pre-trial stage (CPS, police investigation, detail regulation)
• Loosening of hearsay prohibition

Question 11

Convergence of inquisitorial

Answer 11

• Stronger defence rights at pre-trial stage and adversarial trial
• Less neutrality of investigations (downfall of investigative judge and expansion of the role of PP)

Question 12

Packer’s models

Answer 12

• Crime control
• Due process

Question 13

Crime control model

Answer 13

• Prosecution of crime
• Secuirty
• Efficiency (legitimacy)
• Fast and successful outcomes
• Minimise obstacles
• Fast, informal, and uniform procedures
• Factual presumption of guilt
• Increased investigative powers, presumed reliable

Question 14

Due process model

Answer 14

• Protection of individual rights
• Liberty
• System is efficient only if reliable
• No shortcuts around reliability
• Obstacles
• Law reactive, not proactive
• Normative presumption of individuals

Question 15

Presumption of guilt / innocence

Answer 15

• Presumption of guilt: factual (prediction of outcome), once established as suspect, processed by system under the view of probable guilt
• Presumption of innocence: normative / legal