The Inquisitorial System Flashcards
Inquisitorial System
The inquisitorial system (also called the investigatory system) is a system of trial where the court is actively involved in determining the facts and conduct of a trial. It has its origins in 2000-year-old Roman law, and variations of this system are used in many European, Asian and South American countries. Its main role is to find out the truth of an issue.
The role of the parties
Due to the judge having control of the case in the inquisitorial system, the parties have a greatly reduced role. They are required to respond to the directions of the court. While this may reduce the effects of some inequities between parties, it places control of their case in the hands of a third party.
The role of the judge
One essential feature of the inquisitorial system is that the judge takes a more active role in the case. This includes investigating cases, defining the issues to be resolved and gathering evidence (together with the police). At trial, the judge is actively involved in calling and questioning witnesses. Further, judges are not restricted to the issues at question in the trial. The judge may raise other matters of law or fact, even those that have been conceded by the parties, or ones the parties could perceive as not relevant to their case.
Burden and standard of proof
No formal burden of proof or standard of proof is set on any party, as the judge is the person responsible for bringing evidence and finding out the truth. The pursuit of truth is the main objective in this system of trial.
Rule of evidence and procedure
The emphasis in the inquisitorial system is on finding the truth. There is less reliance on strict rules of evidence and procedure in the inquisitorial system. Many of the evidentiary rules of the adversary system, such as the exclusionary rule (where the judge can exclude evidence that is improperly obtained, considered hearsay and so on) do not apply in the inquisitorial system. There is extensive use of written evidence, and witnesses are able to tell their stories, uninterrupted and in a logical form, rather than responding to specific questions. Evidence led could also include character evidence (either good or bad) and information related to prior convictions. Judges are free to hear all evidence, then to determine which evidence they feel is relevant and reliable.
Role of legal representatives
Due to the judge’s active role in relation to investigation and questioning, the legal representatives have a lesser role to play in the inquisitorial system. They assist the judge with finding out the truth. This can include further questioning of witnesses.
6 strengths of the inquisitorial system
Active decision maker Witnesses called by decision maker Less reliance on representation Decision maker controls evidence Costs Written statements
Active decision maker
The decision-maker takes a more active role in investigating to find the truth. Rather than leaving it to the parties to bring out evidence that is favourable to themselves, all available evidence is weighed up by the judge, who will decide which evidence he or she believes to be valid.
Decision maker calls witnesses
Witnesses are mostly called by the decision-maker
rather than by the parties, and are therefore likely to be less biased. For example, the decision-maker in the inquisitorial system may call an expert witness to report to him or her. In the adversary system, both parties will look for expert witnesses who can show the evidence in a way that is most favourable to their arguments (known as ‘expert shopping’). This can result in two expert witnesses with different opinions. Some experts could be tempted to favour one side so their services may be called upon again. The chief justice of the Federal Court has stated that expert witnesses in the future have a paramount duty to the court rather than an obligation to one of the parties.
Less reliance on legal representation
There is less reliance on legal representation. This is particularly important if one party is not well represented.
Decision maker controls evidence
The decision-maker controls the production of evidence and it is more likely that all the relevant evidence is brought out. In the adversary system, the parties may use ‘tactical games’ to withhold evidence until the appropriate moment to gain the advantage of surprise.
Costs
The cost of an inquisitorial system of trial is mainly borne by the state, in criminal cases. The advantage of this is that the accused is more able to defend a matter in court and is not as reliant on funding. In the adversary system of trial, in criminal cases, the state brings the prosecution and the cost of defending a case is borne by the accused, unless he or she has legal aid.
Written statement
The use of mainly written statements reduces the cost of the proceedings because it is quicker, but the parties may prefer to see the witnesses being cross- examined as in the adversary system. The use of mostly written statements has now been adopted in committal proceedings in the adversary system.
6 disadvantages of the inquisitorial system
Less impartial Reliance on writing Witnesses Power Party control Judges awareness
Less impartial
The judge is less impartial than in the adversary system. In the adversary system the judge does not enter the ‘fray of the battle’. The decision-maker in the inquisitorial system gets involved with all aspects of the dispute and could be influenced by outside issues. The professional ethics of the decision-maker in the inquisitorial system would, however, require him or her to be impartial.
