Analysis of Adversarial and Inquisitorial in Canada - Essay Example

Adversarial vs. Inquisitorial in Canada The two Models Canada, as most British colonies, applies the adversarial legal system adopted from the English framework. The two advances are either inquisitorial or adversarial. Canada should take steps in introducing elements of inquisitorial system into the current system of application. The adversarial systems of justice applied Canada also falls short in the structure of the law itself and should change. Today, the system of justice in Canada bases on the adversarial model. The concepts in the system hold that two parties in any case assume opposite stands during a debate. The debate constitutes finding out the guilt or innocence of a party in the case. Somehow, the adversarial system entails few merits and disadvantages as well. The first of the two advantages is that the judge reserves the right to comment until the two parties exhaust their arguments on presented evidence. The second advantage is that such an opportunity accorded to the judge makes his or her role appear neutral. The system requires the judge to preserve judgement until after completion of scrutiny of evidence. Brooks identifies demerits including among others the process of gathering evidence is a responsibility of the two parties in the case. In most cases, they are not equal. Similarly, the two parties in the case only present evidence favourable to the case they hold. The inquisitorial system of justice is the commonest procedure of approach in many civil jurisdictions. The system involves the judge in preparing evidence along with the support of the police. The judge also plays a role in determining ways through which the case would appear in court. The legal jargon for the prosecutor is then Crown. The definition leads to the Crown representing the people of Canada. On the other hand, the defence lawyer is the advocate for the accused. Determining truth in legal case The function of the judge should centre on finding the truth by perusing presented evidence proving either the innocence or guilt of one of the parties. As opposed to being a referee and an arbiter like in the adversarial system, the judge in the inquisitorial system takes the roles of both the prosecutor and judge. Over the past few years, other countries applying the adversarial system continue to make greater steps compared to Canada in incorporating inquisitors into their systems. Other countries in Europe including France apply the inquisitorial system. The system tackles the determination of guilt or innocence in a different manner. Because, other users continue to incorporate inquisitors is reason enough that the system is better if not has essential elements. The British System is a good example where changes in the Criminal Procedures Act 2011 included the use of inquisitors. The law centres on the developments in the obligatory pre-trial management process of a case. Those opposed to the inquisitorial system of justice hold that the method is inefficient, disregards the presumption of innocence, and seriously bureaucratic. Those supporting the retention of the status quo hold that in many ways though. The adversarial system of justice beats the inquisitorial system. According Brooks, the inquisitor has less incentive to investigate and question the evidence and witnesses. Hence, arguments in support and against presented evidence remain a viable option than the use of an inquisitor. The goal of the law should revolve around establishing the truth. Comparing the two systems of justice, the best model should relative faith in the integrity of the pre-trial processes. Jerome Frank (1950) holds that the adversarial framework has no faith in relying on the role of the prosecutor in gathering evidence. In view of the system, allowing defence lawyers to test and question evidence provided by the accuser is the best way of avoiding mistaken conclusions of guilt. Frank, “I repeat that we ought not to blame the trial lawyers for employing such tactics. Yet the legal profession is somewhat responsible for the fact that non-lawyers do sometimes assess such blame.”Frank (1973) holds that the trial process provides a platform for evaluating, discussing, and determining the truth in any case. On the contrary, the inquisitorial system has faith in the integrity of the pre-trial process under the supervision of an examining magistrate or prosecutor in the process of differentiating between unreliable and reliable evidence. Owen Fiss in his article Against Settlement, the current model applies in criminal cases that entail determining the guilt or innocence of a party in the case as the two parties take in a debate. Each side always wants to win therefore, Fiss (1982) puts forth that the judge must oversee the examination of evidence presented by both parties as critical issues continue to emerge during the trial. In the adversarial model, the judge watches on as parties engage in the discourse leading to the emergence of truth. Fiss (1982) clarifies the roles of every player in the court with clear separation of roles to avoid duplication. The model assigns the defence council the specific roles of gathering arguments top defend their client being an adversarial party. Brooks posits that the defence council also tears into the evidence provided by the crown, dismissing its worthiness and credibility. On the other hand, the crown prosecutor should present arguments in support of the case and on behalf of the state or crown. The prosecutors collects, prepares, and presents evidence to incriminate the accused as described by Fiss (1982). In many ways, the prosecutor presents evidence justifying that the accused committed a crime. Apart from an arbiter, the judge is also a referee overseeing the issues that clarify what the law provides. The judge does not have a role of intervening on either side of the case except under specific circumstances where the proceedings jeopardize the law by any of the players. Fiss questions the where witnesses and evidence provided remain the exclusive role of the two parties namely, the crown and the defence. The two parties should not include the judge in information provided in court. Brooks agrees that the judge cannot even intervene in cases where crown prosecution feels not interested in presenting essential evidence to support their argument (Moore 1985). The direction and responsibility of the case is a prerogative of the two parties embroiled in the battle and debate. Party autonomy and party prosecution As held by Brooks, the adversarial model stipulates that the judge remains neutral while listening to the proceedings as he or she prepares to deliver judgments. Frank posits that “ When we say that present-day trial methods are "rational," presumably we mean this: The men who compose our trial courts, judges and juries, in each law-suit conduct an intelligent inquiry into all the practically available evidence, in order to ascertain, as near as may be, the truth about the facts of that suit. That might be called the "investigatory" or "truth" method of trying cases. Such a method can yield no more than a guess, nevertheless an educated guess.” It hampers the development of information into the truth. The model assigns the judge with the responsibility of ensuring the proceedings follow the procedural laws defined by other scholars as the due process. As opposed to team games where players use their skills in handling sticks and slum dunking, they engage in the battle and argument for and against presented evidence. The judge is only the referee with no other responsibilities but declaring results and marinating the game in a fairway. This defines what entails the adversarial system. It is the view of the legal system that no one else has a strong motive than the two parties in the case. Trials in Canada takes place as though they are games involving teams. The aides of the prosecutor and the prosecutor himself engage the defence lawyers and his assistants. The two sides in the case crown prosecution and defence lawyers) come face-to-face with each other in a serious game looking to achieve serious goals. The law applied in Canada works based on the theory that opponents in the case will be industrious enough compared to any other party in the case to gather evidence that favours their position. According to the theory, the chance is available to both the Crown prosecution and the defence lawyers (Moore 1985). The process of writing the law as well as the law itself shares few similarities with science. Fiss insists that at times, laws are ambivalent and vague. Such provisions give the judge the loophole to interpret the law, which results in a fifty-to-fifty chance of either being biased or not. Defence and prosecution parties have the permission to ask follow-up questions. Considerations It is clear that pre-trial processes are inseparable from the entire process of seeking the truth in any case. Compared to the adversary model, the inquisitorial framework has presumptions of guilt before the case moves to trial. This model avoids lumping cases, some of them unnecessary, into the corridors of justice. The adversarial model allows anything even in the absence of sufficient evidence to go to full trial. Decision making in the adversarial system is in the hands of parties (Moore 1985). The system recognizes that the prosecutor has the discretion of terminating the case even when evidence supports the case through full trial. The system also allows the defendant to plead guilty to avoid trail. A party who could make mincemeat of anyone would get the best lawyers in town, step on the toes of the poor, and walk away scot-free. As written in the law Commission Primer, improvements in the system came with the introduction of legal aid. However, it remains favourable or skewed to the people with adequate resources. The case could affect poor people who fear the muscle of the rich. However, the inquisitorial framework retains limited discretion. Jerome Frank (1950) writes that the principle of legality dictates both practical and theory that prosecution must survive the entire life in all cases with adequate evidence. Without regard to the wishes of the accused prosecution should go full-length. Justice does not just happen; it also appears to take place. The movement of the trial remains in the hands of the court in the inquisitorial model. After perusing available, the trial judge determines the witnesses to appear in the dock, evidence to present, and questions to respond to during the trial. Based on the variations explained in this discourse, the easy recommends that Canada gradually start incorporating important elements from the inquisitorial system of justice into the current method. The inquisitorial system offers precise ways of conducting trial compared to the adversarial model. According to Frank (1973), the inquisitorial system does not constitute jury trials giving the judge the authority to force the accused to deliver statements to respond to questions. This position presents the biggest difference between the inquisitorial system of justice and that applied in adversarial right and common law. The later do not give the judge the mandate to summon witnesses to answer questions in the court. As opposed to what takes place in the adversarial system, the prosecutor, judge, or inquisitor (names apply depending on the location and choice of language) participate in gathering evidence, the entire process of interrogating witnesses, as well as make the judgment. In France for instance, cases with great magnitude entail the use of tribunals where major ones contain a nine-member jury. The roles of a judge as a referee in the inquisitorial system include becoming an inquisitor coming with more duties of conducting the case. The Canadian system gives the responsibility to the two factions to assemble evidence on cases with conclusive decisions. The concept that an individual carries the responsibility of preserving personal rights lies at the centre of the adversarial system of justice. The assertion does not in any way try to exalt the vigorous process of trying cases by observing the cons and pros of an argument. During the early days after adoption of the system, the judgment always favoured the party with fattest wallet. Fiss (1982) puts forth that the system sold justice to the highest bidder. The decision was the same even in the glare of evidence suggesting otherwise. In the responsibility of assembling evidence applied by the law Commission Primer, either the best system uses the services of an independent prosecutor or a judge with the duty of examining the evidence. The case is common in serious cases involving criminal investigation. The magistrate with the power to examine evidence as well as the crown prosecutor reserves the right to summon a witness to answer questions (Moore 1985). Comparatively, this action is better than the application in the adversarial model considering that parties will only disclose evidence favourable to them. Frank says that, “The lawyer not only seeks to discredit adverse witnesses but also to hide the defects of witnesses who testify favourably to his client. If, when interviewing such a witness before trial, the lawyer notes that the witness has mannerisms, demeanour -traits, which might discredit him, the lawyer teaches him how to cover up those traits when testifying.”The process also increases transparency in the case as three parties engage in collection of evidence. This way, the inquisitorial system scores highly in the process of eliminating or minimizing corruption. References Fiss, O., 1982, ‘Objectivity and Interpretation’, Stanford Law Review, 34: 739–763. Frank, J. (1973). Courts on trial: Myth and reality in American justice. Princeton, N. J: Princeton University Press. Frank, J., (1950).Courts on Trial. Princeton, NJ: Princeton University Press. Moore, M., 1985, ‘A Natural Law Theory of Interpretation’ Southern California Law Review, 58: 277–398. Read More