Adversarial and inquisitorial criminal justice - Essay Example

"Accusatorial and inquisitorial systems of criminal justice have different aims. As a consequence of this they have different procedures." There aretwo systems that are utilized in the administration of criminal justice: 1) the adversarial system (also called accusatorial), and 2) the inquisitorial system. This paper aims to present the difference between the two systems in relation but not limited to the purpose, who are the parties involved, what are role of the parties involved, and the rules involved in the criminal procedure towards the attainment of their aim. Once a crime has been committed, the criminal justice is initiated by the filing of the complaint or criminal action by the victim (called the plaintiff in the complaint) to the police or to the prosecution, against the accused (called the defendant in the complaint). The different steps or procedures undertaken from the filing of the criminal complaint, trial by the court of the case, and to the conviction or non-conviction of the plaintiff is called the criminal procedure. After the complaint has been filed, the next step in the criminal procedure depends on the country of the court where the case was filed. In England and Wales and other common law countries like the United States of America for example, criminal proceedings are sometimes referred to as an adversarial system. 1 In this system, parties to a controversy (prosecution, plaintiff, defense counsel, defendant), develop and present their arguments, gather and submit evidence, call and question witnesses, and control the process within the confines of certain rules and regulations.2 On the other hand, the inquisitorial system which is employed on the continent of Europe among most (but not all) systems of civil law, the conduct of investigating the case, gathering of evidences, and questioning of witnesses is the sole responsibility of the judge of the case.3 While the judge or jury in the adversarial system is a passive recipient of information4, which means that he will only know the facts and arguments of the case during trial, the judge/s play/s much more active roles in the criminal process in the inquisitorial system that include investigating, collecting of evidences, and questioning of witnesses.5 The most striking differences between the two can be found in criminal trials. In the Anglo-American adversary system, the parties to a dispute (plaintiff and defendant), or their advocates (prosecutor and defense counsel), square off against each other and assume roles that are strictly separate and distinct from that of the decision maker that is usually a judge or a jury.6 Each party has to develop and present arguments supported by proofs. In the United States for example, the prosecutor (counsel of the state and in behalf of the plaintiff) will be the first one to present his arguments and evidences to support his arguments. His purpose is usually to prove and convince the judge that the defendant (or the accused) really committed the crime and should be penalized. After which, the defense counsel will also present his arguments and evidences to prove the innocence of his client (the defendant). After the presentation of arguments and evidences by parties, the direct examination and cross-examination follows. The prosecution and the defense counsel will have the opportunity to examine the evidences and witnesses presented by the adverse party to illicit further information and to determine the veracity and truthfulness of the evidences presented. The adversary process is governed by strict rules of evidence and procedure that allows both sides equal opportunity to argue their cases and to ensure that the decision of the judge is based solely on the evidences presented.7 If both of the parties already rested their case, meaning when direct, redirect, and cross-examinations are over, it is where the function of the judge enters. The judge should decide based from the merits of the case presented before him, whether to convict the defendant-accused or to set him free. A trial under the inquisitorial system is more likely a continuing investigation where the parties in the case must provide all relevant evidence during the proceedings.8 The trial becomes a type of screening process in which evidence is carefully examined to arrive at the truth.9 Furthermore, the judge, not the Crown (prosecution) or defense (counsel), calls and actively examines witnesses and the defendant.10 During the trial, the defendant in an inquisitorial system is the first to testify.11 He or she is allowed to see the government's case before testifying and is usually eager to give his or her side of the story.12 The judge is not a passive recipient of information; rather, the presiding judge is primarily responsible for supervising the gathering of the evidence necessary to resolve the case.13 He or she actively steers the search for evidence and questions the witnesses, including the respondent or defendant.14 Attorneys play a more passive role, suggesting routes of inquiry for the presiding judge and following the judge's questioning with a questioning of their own.15 Attorney questioning is often brief because the judge tries to ask all relevant questions.16 The defendant or accused in the adversary system has more rights than that in the inquisitorial system. In the United States, for example, the US Constitution provides for the rights of the accused during trial to include but not limited to the right to remain silent, the right to have a counsel of his own choice, and the right not to give incriminatory statements. With this, the defendant cannot be compelled to be a witness in court if he does not want. The most important of this right is that the defendant is presumed innocent until contrary is proven beyond reasonable doubt. By contrast, defendants in the inquisitorial system can be compelled to give statement but not subject to cross examination and not given under oath, and it does not protect criminal defendants as much as the adversarial system17 One of the most significant differences between the two systems occurs when a criminal defendant admits the commission of the crime.18 In an adversary system, there is no more controversy and the case proceeds to sentencing.19 By contrast in the inquisitorial system, the fact that the defendant has confessed is merely one more fact that is entered into evidence, and the confession by the defendant does not remove the requirement that the prosecution present a full case.20 Plea bargaining, in which the defendant will plead guilty to a lesser offense, or out of courts settlements, are available in adversarial system while it is not in the other system since it is considered unethical by the judge to be involved in the negotiation of sentence.21 The decision in an inquisitorial criminal trial is made by the collective vote of a number of professional judges on a small group of lay assessors (persons selected at random from the population).22 Neither the prosecution nor the defendant has an opportunity to question the lay assessors for bias.23 Generally, the judges vote after the lay assessors vote, so that they do not influence the conclusions of the lay assessors.24 A two-thirds majority is usually required to convict a criminal defendant, whereas a unanimous verdict is the norm in an adversarial system.25 Unanimous decision means that the judge/s may convict/s beyond reasonable doubt. Conclusion: Both of the systems have their own severe defenders as well as severe critics. Whatever these defenses or critics are, they will only boil down into two things, which are the separate aims of the two systems in applying different procedures. In the inquisitorial system, the intervention of the judge/s in almost all procedures of the criminal procedure is to seek for the truth in the case. He wanted to be sure and to know what really happened in the case so that he/she could give a very good judgment. While the employment of the prosecutor and defense counsel in the adversarial system is to assure the win ability of the parties who was able to engage the services of the "best" lawyer. Bibliography "Adversarial system". Global Oneness.com. Retrieved on April 1, 2009 from "Adversarial vs. Inquisitorial Model of Justice". Retrieved on April 1, 2009 from "An inquisitorial system of criminal justice offers the best system for ensuring that those guilty of committing criminal offences are convicted and that the innocent are acquitted". Law Essay.uk.com. Retrieved on April 1, 2009 from "Inquisitorial system". Answers.com. Retrieved on April 1, 2009 from "Inquisitorial system". Retrieved on April 1, 2009 from "The Adversary System: Who wins Who loses". Legal Dictionary.com Retrieved on April 1, 2009 from Read More