COMPARISON OF ADVERSARY AND INQUISITORIAL SYSTEMS OF TRIAL Flashcards
Role of the judge
In the adversary system the judge or magistrate is an independent umpire, making sure that the ‘battle’ is fair and the parties follow the rules. The decision-maker does not enter the arena, but leaves it entirely up to the parties.
In the inquisitorial system the decision-maker’s role is more active. They will investigate the facts, question the parties and relevant witnesses, examine the law, apply the law to the facts, and reach a decision. The decision-maker is not restricted to considering only those facts that are deemed relevant by the parties, but can take the investigation further to get at the truth.
Rules of evidence and procedure
In the adversary system, the court is bound by strict rules of evidence and procedure. The parties are restricted in the timing and method of producing new material, and there are restrictions on the type of evidence that can be produced.
In the inquisitorial system the decision-makers have the discretion to bring out any new material at any time in the process, in their attempt to reach the truth.
Furthermore, the inquisitorial system of trial does not insist on strict rules of evidence and procedure. Any evidence that will help to find out the truth is examined.
Collection of evidence
In the adversary system evidence is collected by the parties. All evidence gathered in a committal proceeding in a criminal case is collected in depositions before the trial. In a civil case, information is collected by both sides during the pleadings and discovery stage, but witnesses’ statements are not collected.
In the inquisitorial system evidence is collected by the examining judge. A dossier, which contains all statements made and evidence collected, is kept by the examining judge.
Types of evidence
In the adversary system the system relies mainly on oral evidence, although use of written evidence is increasing. There are strict rules of evidence and procedure. The inquisitorial system relies mainly on written statements, although some witnesses are interrogated at the trial. There are no strict rules of evidence and procedure.
Character evidence and past record
In the adversary system character evidence and past record are NOT usually available. Evidence of bad character is usually inadmissible in a criminal as it could be seen as unduly influencing the case against the accused.
In the inquisitorial system character evidence and past record are available. Reports of the character, personality and past record of the accused in a criminal case are included in the dossier. The investigating judge would generally have a thorough knowledge of the background of the accused.
Witnesses
In the adversary system witnesses respond to questions. Witnesses are generally only allowed to respond to questions and are often cut off if they try to elaborate on a point. Important information might not be brought to light. In the inquisitorial system witnesses tell their story uninterrupted by questions. Witnesses are allowed to give their own version of the facts without interruption.
Need for legal representation
Due to the complex rules of evidence and procedure, each party in the adversary system needs to be represented by an expert legal representative who understands these rules. The legal representative for each party will prepare and argue their case to the court. There is less need for legal representatives in the inquisitorial system, where their role is mainly to assist the judge in finding truth.
Role of the parties
The emphasis in the adversary system is on party control, with the parties determining whether the case will go to court, which court, the mode of trial, and the evidence to be presented at trial. The parties in the inquisitorial system have less control over their case. This control is predominantly with the judge.
Burden and standard of proof.
While it is expected that the truth will emerge during the course of a trial in the adversary system, finding the truth of the matter before the court is the primary objective of the inquisitorial system. The burden of proof and the standard of proof are not as relevant because the case is conducted by the judge from investigation through to the outcome.
Primary objective
The adversary system is designed to allow the parties to control their own case and to give both parties equal opportunity to win the case. In the process, however, the truth might not always come out. The inquisitorial system is designed to get at the truth. The judge investigates the case to find out the truth. This might not be the outcome, hobecause the judge might not uncover all the evidence.
