Forensic Psychology and Criminal Investigation - Essay Example

Forensic Psychology and Criminal Investigation PART I Introduction In reality, the terms ‘adversarial’ and ‘inquisitorial’ justice systems lack a precise definition and no country’s judicial system is purely adhering to either model. It is noteworthy how during recent years, adversarial systems have begun incorporating elements of inquisitorial system. A prime illustration is the Criminal Procedure Act 2011 that encompasses many reforms of an inquisitorial nature, for instance the introduction of mandatory pre-trial case management procedures. Simultaneously, inquisitorial systems have evolved to integrate reforms that contain features of adversarial justice system. The Victim The adversarial model relegates the victim to the position of a witness. The victim has no official role in either the pre-trial enquiry or the trial. As opposed to this, an inquisitorial system assigns a formal role to the victim during the pre-trial enquiry, consisting of right to certain lines of inquiry and contribution in interviews conducted by the magistrate. Similarly, they have an independent status at the trial and can question the witnesses (Koppen, 2003). Evidence and the part of Trial Judge An adversarial model confines the role of the court to overseeing the process of evidence and subsequently evaluating that evidence to resolve if there is sufficient doubt. The parties involved have full autonomy over the nature of evidence presented and witnesses, which can be cross-examined by the opposing party. Strict rules exist to hinder the presentation of evidence that may be prejudicial or misleading for the fact-finder. On the other hand, the inquisitorial model essentially places authority over a trial in the hands of the judge. With dossier of evidence, the judge dictates which witnesses to call upon and in which order, and plays the dominant part in questioning. Fewer rules exist to prevent evidence and thereby more information is accessible for deliberation in the court (Bohlander, 2007). Discretionary power As adversarial judiciary places decision-making authority largely in the hands of the parties so there is prosecutorial discretion not to pursue a case, even when there exists explicit evidence pointing to criminal charges. The statute also protects the defendant from a trial by pleading guilty. However, this discretionary power is curtailed in inquisitorial system as legality principle is strictly abided by. In plain terms, prosecution is obligatory in all cases in which adequate evidence exists to the guilt of the defendant. The trial proceeds regardless of the accuser’s stance, as there is no such thing as the plea of guilty. Settlement and plea bargain prevents majority of cases from going to trial, which is great injustice to indigent defendants who lack the resources to afford dexterous attorneys (Redfern, 2004). However, opponents of adversarial model contend that inquisitorial courts are overly institutionalized and distant from an average citizen. Trial cases undergo a special discovery process, which assists in examining evidence and testimony before being presented to judge or jury. Therefore, lawyers are well aware of the extent of contentious issues to be presented at trial that progresses largely in the same way as the function of investigative judges. Conclusion Although, the paths to justice may appear quite contrary under the two differing judicial approaches but it should be borne in mind that the ultimate goal of both justice systems is the same. Provocative as it may sound, but no system is the right system; much depends on the cultural norms and people operating the justice system. The accelerating trend of integrating the two models is likely to produce effective results. PART II 1. In the inquisitorial justice system, the judge possesses ultimate authority and therefore continues to search facts until informed enough to render a correct decision. The judge is the central figure who works together with the police for preparation of evidence and how opposing parties would present their cases. This justice system places all power in the hands of the judge who interrogates the witnesses in detail and can allow defence and prosecution to ask follow up queries. Thus, the judge acts as both, the judge and the prosecutor. Since there is no concept of jury in an inquisitorial system, so the judge is the sole authority who determines the innocence or guilt of the defendant. From the aforementioned, it can be deduced that the defendant is under intense pressure and does not expect neutrality from the judge. (Powell, Fisher, & Wright, 2005) The adversarial system of justice assumes the existence of some objective truth; consequently, the process of litigation is aimed at recreating that reality within the courtroom to direct litigants towards the correct outcome so that the results coincide with the actual occurrence in the past. This system is preferred over inquisitorial system for its truth-finding ability (Goldstein, 2003). Under an adversarial system, the function of the jury is to find the truth and decide the facts; however, not to decide the laws applicable to the facts in the case. Empirical research has demonstrated that jurors tend to favour lawyers and witnesses who use powerful speech as practiced in an adversarial court (Pakes & Pakes, 2009). In light of the varying roles played by the attorney under the two justice systems, the adversarial model appears to be more susceptible to attorney misconduct that leads to distortion of truth. The attorney maintains greater control in adversarial courts in contrast to inquisitorial courts. Lawyers under the adversary system have great discretionary power over the amount, nature of evidence, legal arguments to make, lists and timing of hearing of witnesses. Consequently, the partisan attorneys only present as much evidence as supports their case, regardless of ethics or morality (Brown, 2005). The attorney’s prime allegiance is to the client and his professional standing, and not to the truth. They tactfully employ various psychological tactics to control verbal subject of the evidence and courtroom debate, jurors’ attitudes about crime, present the criminal defendants as attractive etc. Public speaking skills and knowledge about the impact of visual and aural cues can greatly enhance the attorneys overall performance in a trial by winning over the jury (Anderson & Otto, 2003). In contrast to inquisitorial system, the judge in an adversarial system acts as an umpire and arbitrator for the clarification of law. He cannot intervene unless any side jeopardizes the procedural fairness. The evidence and witnesses are left at the disposal of the two contending parties, he defence, and prosecution. The judge is the referee and arbitrator on issues related to clarifying what the law is. The judge is powerless and cannot compel either side to present evidence or witnesses to clarify the situation. As a result, the two opposing parties are left in charge of the trial and the subsequent direction it takes. The judge is powerless and cannot compel either side to present evidence or witnesses to dig the truth. 2. As far as the inquisitorial justice system is concerned, the defendant should be granted more protection and the judge should act as an arbitrator rather than a prosecutor. Moreover, to ensure impartiality, a panel of judges or a neutral jury should preside over the case. Fundamentally, there are four participants in any trial, namely, the defendant, judge, jury, and attorney. These in turn are the possible conduits for reforming justice systems. The judge and the jury are the only two possible means of controlling psychological tactics but share the same flaw, that is, power is transferred from the attorneys to the jurors and judges. This in turn again creates an imbalance of power amongst the trial participants in the adversarial justice system. The introduction of more stringent laws and punitive measures for such contemptible tactics in court is likely to bear fruit. Moreover, judges can exclude evidence tainted by such manipulative techniques. Moving on, jurors should be educated about such psychological tricks and permitted to question witnesses with clear instructions that caution them against the use of psychological tactics. Likewise, the composition of the jury should be regularly altered. However, awarding substantial power to the judiciary and jury in order to curb psychological tactics will eventually deprive the attorneys of power completely. Consequently, assigning attorneys with the duty to identify and punish the use of improper tactics is more productive than other methods. It is crucial to segregate powers and duties amongst the chief participants and stages of the process in order to encourage contributions from a variety of sources with differing motives and identities. References Anderson, R. A., & Otto, A. L. (2003). Preceptions of Fairness in the Justice System: A Cross Cultural Comparison. Social Behaviour and Personality , 557-563. Bohlander, M. (2007). International Criminal Justice: A Critical Analysis of Institutions and Procedures. London: Cameron May. Brown, D. K. (2005). The decline of defense counsel and the rise of accuracy in criminal adjudication. California Law Review , 1,585–1,645. Goldstein, A. M. (2003). Handbook of Psychology, Forensic Psychology. Hoboken: John Wiley & Sons. Koppen, P. J. (2003). Adversarial Versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems. London: Springer . Pakes, F., & Pakes, S. (2009). Psychology and investigative interviewing. In F. Pakes, & S. Pakes, Criminal Psychology (pp. 75-84). Cullompton: William Publishing. Powell, M. B., Fisher, R. P., & Wright, R. (2005). Investigative interviewing. In N. Brewer, & K. D. Williams, Psychology and law: An empirical perspective (pp. 11-42). New York: The Guilford Press. Redfern, A. (2004). Adversarial and Inquisitorial Processes. In A. Redfern, Law and Practice of International Commercial Arbitration 4th edition (pp. 269-280). London: Sweet & Maxwell Limited. Read More