Major Differences between Adversarial and Inquisitorial Systems - Research Paper Example

Adversarial and Inquisitorial Systems Table of Contents Table of Contents 2 Major Differences between Adversarial and Inquisitorial Systems 3 Comparing the legal systems in the Sultan of Oman and Australia 6 Australia’s inquisitorial system 9 Conclusion 11 Bibliography 12 Major Differences between Adversarial and Inquisitorial Systems There are a number of differences between adversarial and inquisitorial systems used to establish the truth in criminal proceedings. This is true when one compares the investigative methods and the forensics processes used. Investigation of processes and the presentation of forensic evidence in an adversarial system is carried out by independent and partisan parties. They later present the same to a “passive and neutral trial judge or jury”1. In contrast, the mandate of uncovering the truth is vested on an official entity in an inquisitorial system. The entity is further empowered through judicial authority. The role of the official entity is to gather collective unbiased evidence for or against the accused person2. In spite of the differences, the two systems also share some similarities. For example, in both cases, the state determines how to act towards a criminal offence and how to sentence offenders3. Both systems however have structural shortcomings, which hinder them from the provision of acceptable standards especially in regard to the prosecution processes. At a time when the public is becoming more vocal regarding victimization and how suspected criminals are handled by the legal systems, these shortcomings only make the criminal procedures more complicated. Traditionally, the jury played a vital role in adversarial systems4. Nowadays however, judges have taken up a more active role in trials, thus relegating juries to take up passive roles. The prosecution and the defence on the other hand continue playing out the facts and counter-facts in front of the jury and the judge. This means that the adversarial system relies on the assumption that the facts and truths eventually emerge from the presentations made by the two parties. In this system therefore, the arbiter of truth reaches his or her conclusion based on the selective evidence presented in a court of law by the prosecution and defence sides. The use of jury trials in criminal procedures is meant to enhance democratic accountability of the legal system to the society5. This is because judges, however influential they may be, have no authority to direct members of a jury on how to convict. To the society, such jury trials are viewed as trustworthy and fair. In inquisitorial systems however, jury trials are only reserved for grave offences. This means that except in some few cases, the judge hears and rules on what action is to be taken against an offender single-handedly. In a commentary that seems to give an answer about which system between adversarial and inquisitorial is more successful in bringing out the truth, the former system seems to be more emphatic to punishing the guilty 6 . In contrast, the latter seems more intent on discovering the facts regardless of what the costs of such a pursuit may have on individual citizen rights. This observation therefore suggests that the inquisitorial system is more effective in unearthing the truth about an offence. Inquisitorial trials are more efficient in unearthing the truth while rule doctrine as used in adversarial systems is unreliable7. This is because the courts under such a system accept statement made outside the court without any oaths being taken by the witness. Further, the credibility of the witness is not assessed since the witness is not cross-examined. This means that the jury listening to a case can base their judgment on possibly unreliable evidence. The adversarial system has also been accused of pursuing partisan ends. This seems to be the case even when the lawyers or advocates doing so realize that such a course amounts to being morally non-accountable. The law permits advocates to pursue the interests of their clients as long as legal procedures are followed8. Since no moral grounds are set, advocates are free to pursue even what they would otherwise consider infamous and wicked if the interests of their clients demand so. This means that the advocate can tell overt lies even if it affects his or her client positively. It is for this reason that Kotz observes that the “adversarial system deviates substantially from everyday morality [hence] making no difference between a denial of guilt and a claim of innocence…”9. Based on the arguments presented above, it is clear that the inquisitorial system is better suited to unearth the truth about criminal offences. This is a characteristic that usually lacks in the adversarial system used in Australia. Comparing the legal systems in the Sultan of Oman and Australia The Sultanate of Oman (my country of origin) uses an inquisitorial system based on civil laws and modelled after the French legal system. This means that the country has a set code of laws which are followed, which are unlike the common laws used in most commonwealth nations. Common law “is based on an underlying body of law which reveals itself case by case as the need arises”10. In common law, judges are not only enactors of the law, but can also be lawmakers. This however depends on judicial precedent which allows them to interpret the different statutes and principles when presiding over a case. The inquisitorial system used in Sultanate of Oman is based on Islamic Sharia laws. This means that courts have jurisdiction over family and personal matters. As the country developed in the last 35 years however, more legislation borrowing from the Egyptian and French systems have been drawn. This was in response to increased governance challenges brought about by commercial activities and disputes11. This therefore means that the Sharia courts now have a limited jurisdiction. The commercial courts and tribunals have on the other hand acquired more mandates. This enables them judge and enforce laws that have been promulgated through a royal decree from the Sultan. In Sultanate of Oman monarchy, a plaintiff is free to lodge a claim supported by documentary evidence to the ‘Authority for Settlement of Commercial Disputes’, simply referred to as ‘the authority’. Claims can also be lodged in the penal court, the municipality court, the taxation committee or the labour court depending on the nature of the dispute12. Once this is done, parties to a court case sign the power of attorney authorising legal counsel to represent them in court. This aspect is borrowed from the adversarial system, and hence one can argue that the monarchy’s inquisitorial system is not a pure system. The judge presiding over a court case can issue a judgement in the absence of either party if they had been served with a notification to appear in court and disregarded the same. In similar characteristic to the inquisitorial systems practiced in countries like France, the judges in the monarchy’s courts place more significance on documentary evidence filed in the courts, rather than oral evidence. In fact, oral testimonies are rarely given in the Sultanate courts13. In what appears to be a mix-up between the adversarial and inquisitorial systems, the sultanate appoints independent experts to analyse and provide opinions of technical issues. However, judges also give both parties a chance to submit their opinions regarding the analysis and opinions provided by the experts. In a notable difference from the conventional adversarial system, the Sultanate of Oman lacks formalised rules which govern investigations and interrogation of parties. In a royal decree issued by the Sultan however, a court has the powers to request any party in a court case to produce documents, books or any existing records that may aid in the determination of a court case14. In cases where any of the parties feel that documentation in its possession would be valuable evidence, the courts have allowed such a party to submit the same to the court of presiding legal body. Unlike what is the norm in both conventional adversarial and inquisitorial systems, the bodies charged with determining legal cases in the monarchy do not award any costs to the successful litigants. Rather, each party in the legal case is entitled to settle their own legal costs separately, with the losing party only being compelled by the law to pay for filing costs and any costs incurred by the successful party through the employment of expert opinion. I would advocate for the adoption of the jury system in my country as used in the adversarial system, because the fact that juries are made up of ordinary people would make it easier for them to understand the circumstances facing ordinary people. Additionally, the use of jury trials in the Sultanate of Oman would pass the notion that every member of the community is responsible for enhancing and administering justice. Considering that the monarchy is laden with religious and historic undertones, a jury would also be more suited to capture the significance that religion and history has on the people. In addition, the jury, being an independent body, is more capable of ensuring that community values are upheld during a trial, and that the entire deliberations are democratic. This means that infusing the jury system into the prevailing legal system as practiced in the Sultanate of Oman would serve to safeguard and enhance the democratic rights of all parties involved in a legal dispute. Australia’s inquisitorial system Currently, Australia uses the adversarial system to determine criminal cases. However, there is no pure adversarial or inquisitorial system in this day and age15. Australia being no exception of the happenings taking place in the world can choose to borrow some of the desirable characteristics of the inquisitorial system and merge them with the prevailing adversarial system. For such a thing to happen however, the borrowed inquisitorial concepts would have to perfectly fit within the adversarial system in order to avoid creating conflict between the two systems. The criminal justice system is “a complex social institution which regulates potential, alleged and actual criminal activity within limits designed to protect people from wrongful treatment and wrongful conviction”. 16 As such, it seems as if finding the truth about any case is necessary in the criminal justice system. This means that the police, prosecutors and the courts all have an obligation to ensure that the truth prevails and that a fair trial should be held in order to determine whether one is guilty or innocent. In my opinion, courts in Australia should be allowed some extra mandate (especially when the truth is not so obvious), to summon and examine witnesses as happens in inquisitorial systems. In complicated cases, the prosecutors employed by the state together with police officers should take up the investigative roles and prepare the dossier to be used in the court proceedings. In such cases, the prosecution and defence advocates would have to take subsidiary roles. This would be in stark contrast to the adversarial system where the Judge and jury listens to evidence from the two parties in a court case, then announces a decision at the end of the case. Australia should adopt the proposed changes in its criminal justice system in order to ensure that the criminals are punished for their wrong-doing, while the innocent do not have to suffer for wrongful convictions17. Proponents of the adversarial system however argue that the truth in any case is discovered if both sides are given a freehand to make their own investigations. They should also be allowed to present their arguments to an impartial and passive adjudicator, who can either be a judge, or a jury. However, the intentions and/or knowledge of the two parties involved in a court case can be interpreted differently not only by the prosecution and the defence, but also by the judges or jurors18. There is also a different opinion voiced by people who advocate for the retention of the adversarial system in a country like Australia. In their argument, they state that by the prosecutors and the police taking up the investigative roles, there is likelihood that the examining judge or magistrate may favour a specific view in the matter. This then means that the judges or magistrates presiding over such cases may be biased towards the accused based on views formed during the investigation. However, given that the inquisitorial system is better at unearthing the truth than the adversarial system, I opine that even the prior views formed by the judge or magistrates were based on facts. As such, it does not seem that this would jeopardise chances of an accused or the complainant getting justice. Adversarial courts are not about dispensing justice - they are about winning actions19. This means that as each advocate seeks to provide evidence that would help their clients win the case while obscuring what they consider unhelpful, the truth is always hidden from the presiding judge. The fact that judges and jurors listen to opinions of the advocates rather than to proven facts makes adversarial systems even worse. To this end, the adversarial system in Australia should borrow aspects from the inquisitorial system. This is because the latter has the capacity to help unearth the truth regarding different cases presented to the courts. This is especially so because most of the shortcomings as observed in the system today are related to its inability to make the truth count. Conclusion Both the adversarial and inquisitorial systems relate to fact-finding in the criminal justice system. In the adversarial system, the main role of unearthing facts pertaining to a specific case lies with the parties involved, while in the inquisitorial system, the role lies with the court. In the adversarial system, truths, half-truths or even absolute lies can influence the judges or jury’s decisions, thus making it a less inferior system in truth finding. The inquisitorial system on the other hand requires the prosecutor, judge or magistrate to investigate a case, summon and question people he or may consider relevant to the case, and base his or her judgement on the same. This system is however accused of biasness especially considering that a single judge is less likely to pass democratic judgements. Overall, modern democracies have to balance between the two because each has it advantages and disadvantages. Besides, there is no rule that bars a country from getting a hybrid system where only the best practices from each system are adopted. 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