Chapter 13 - Inquisitorial and Adversarial systems Flashcards
Adversarial system strengths
An impartial judge (and jury)
The passive judge does not investigate nor do they question the witness. They do not introduce evidence, compile an evidene dossier or direct the tiral. The judge oversees the contest between the competing parties, ensuring they adhere to strict processes designed to ensure procedural fairness (natural justice) and make decisions on the roles of evidence and procedure.
A judge must explain the reasons for their decisions (ratio decidendi), making judicial thinking transparent and subject to appeal by either parties.
Juries are commonly used for indictable offences in WA. Juries serve to better uphold the ancient principle of being ‘tried by one’s peers’. The jury is a body of citizens. They decide if the accused is guilty or not guilty based on the evidence.
Juries are independent of the partis and the judge. They are not part of the executive or the judiciary. They are citizens.
**High quality of evidence
**
The rules of evidence in the adversarial trial are designed to ensure that low quality evidence never enters into the decision making process of a judge or jury.
The judges uses the admissibility of evidence. Evidence is not weighed by an adversarial judge. The judge enforces the rules
Adversarial system weaknesses
Inquisitorial system strengths
**Bringing fourth evidence **
There are relaxed rules of evidence in the inquisitorial system meaning, parties can not hide or withhold evidence against their own case means a lot more evidence is able to come before the court. The parties cannot strategically select their evidence that is beneficial to their case, resulting in more evidence to be brough before the court allowing the truth to be found with more evidence for the story.
Evidence that is deemed a more higher quality is weighted more heavily and evidence that is less reliable is discounted. The judge will make the decision on whether the evidences weighting. (weighs up the value of evidence). Every piece of evidence contributes to the judges reasoning when forming a conviction.
**Less biased witness **
The impartial judge calls and questions all witnesses. The judge hearing the witnesses first hand story enables the judge to gain correct information. Instead of parties filtering or coaching witnesses to suit their side by presenting only favorable testimony.
Lower cost for the parties
The major part of the trial costs is borne by the state, not the parties. Making the inquisitorial system more expensive for the french taxpayer, but cheaper and therefore, more accessible to the parties.
The cost advantage is also because of the lower reliance on legal expertise. Legal advice is less important in the inquisitorial system. Due to the parties not running the case, they do not need legal expertise to the same extent as parties in the adversarial system.
Access to justice is part of the rule of law. With lower costs, it allows people to initiate and protect their rights through the legal system if they need to - costs are less of a barrier to participation. Lower costs provide increased access to justice, satisfying this important element to the rule of law.
More likely to convict a guilty offender
Higher conviction rates for serious criminal offences due to its more relaxed rules and procedure, lower standard of proof and weaker rights of the accused. This achieves a stronger punishment, deterrence, rehabilitation and community protection outcomes. The price that is paid is that there is a higher likelihood of wrongful convictions.
Inquisitorial system weaknesses
**Less impartial judge **
- For minor offences, trials are handled entirely by the parquet. (the parquet is a judicial body fused with the French executive)
- There is a weak separation of powers between the accuser/prosecutor and the adjudicator is a weakness of the inquisitorial system
- It compromises the impartiality of the adjudicator, a principle of natural justice.
- This problem is mostly confined to minor criminal trials where the consequences for the defendant are not so serious.
More serious offences
- There is a stricter separation of powers. The parquet remains the prosecuting party, but the juge instructeur, who is not part of the executive, becomes the adjudicator
- Once the juge instructeur is seized and takes charge of the trial the parquet loses control of the trial and becomes the prosecuting party
- Court trials with a jury are better because the jury is composed of citizens with equal power to the judges to decide guilt and impose a sentence
- Six citizen jurors, who are not members of the executive or judicial balance three judges and outweigh them in the final verdict
- There is closer association between a French juge instructeur and the prosecuting parquet then between an adversarial judge and the DPP in WA criminal trial.
**Parties surrender control of the trial
**
- Active judge and passive parties –> parties have little influence over the trial
- Only the juge instructeur can bring a trial to the end
- A guilty plea is regarded as evidence
The character of the defendant is included
- Previous criminal history of the defendant is admissible and can be used by the juge instructerur to reach an intime conviction
- It can help the judge decide the case
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Principles of natural justice
**
Impartial adjudication- In minor criminal cases, the parquet may carry out the roles of the executive (police investigation and prosecution) and the role of the judiciary
- Can lead to the perceptions of bias and can also lead to actual bias
Hearing both sides
- There is no procedural guarantee that the defendant will be able to present their case to the same extent as the prosecution. The procedure is more flexiable and the judge can control it to a great extent
- The degree to which both sides can make their case is controlled more by the discretion of the judge and ess by trial procedures.
- Evidence is selected and weighted by the judge
- Not presented and contested by the parties, neither party can be certain the judge is finding evidence that assists their case
Evidence based decisions
- Very good at bringing fourth evidence because of limited relevance rule and impartial collection, useful evidence must be selected for inclusion in the dossier and then weighted appropriately by the juge instructeur.
- Puts the burden on the judge and nit on well-defined rules to decide which evidence is used and how.
- The standard of proof is dependent entirely on the inner belied and conviction of the juge instructeur.
- The judge has to be thoroughly convinced in their own mind.
- Standard of proof is highly personal
- Some judges may be easily convinced than others
- Depends on judges character, values and attitudes
Transparency and openness
- Dependence on the inner thinking and judgements of the juge instructeur make transparency harder to achieve
- Trial processes are less formal and less predictable
- The judge is not required to explain how they reached their intime conviction
- Keys to a good justice system -> justice is seen done instead of just done -> seeing justice done is harder in an inquisitorial trial
