Global Criminology: Similarities and Differences Between Adversarial and Inquisitorial Justice Systems
Similarities and Differences between Adversarial and Inquisitorial Justice Systems: Global Criminology
Every country uses fundamental rules and procedures to ensure fairness and justice in its legal system. The effectiveness of any legal system is assessed based on how well it facilitates truth-finding, efficiency, and fairness. This text assesses the effectiveness of adversarial and inquisitorial justice systems to determine which one would be more effective in fighting global crime.
Similarities and Differences between Adversarial and Inquisitorial justice systems
Every country uses fundamental rules and procedures to ensure fairness and justice in its legal system. Based on these rules, a country can be termed as either adversarial or inquisitorial. Experts have given diverse views on the effectiveness of either system in achieving the aims of a country’s legal traditions. This insight is crucial for the interpretation of the Constitution, as well as for purposes of law reform. This proposal complements existing studies by analyzing the differences and similarities between adversarial and inquisitorial justice systems. It examines the legal procedures in three adversarial countries vis-a-vis three inquisitorial countries with the aim of determining how either system facilitates or impedes on the realization of legal traditions. The researcher believes that a careful look and research into the differences and similarities of the two justice systems will help identify the pros and cons of either system, and will provide some crucial exposure on how the issue of global crime could be addressed.
Before embarking on the main discussion, it would be prudent to provide brief definitions of inquisitorial and adversarial justice systems.
The inquisitorial system: this is a procedure of legal practice, where the judge endeavors to discover facts and at the same time represent the state’s interest in a trial (Ambos, 2003). The judge is not just a passive recipient of information. He plays an active role in the interrogation of witnesses, and in the evidence-gathering process (Ambos, 2003). This system is prominent in common law countries, including Germany, Peru, Chile, France, Belgium, and Russia.
The adversarial system: a method of legal practice, where parties to a controversy gather and submit evidence, call and question witnesses, and present their arguments before an impartial fact finder, usually a judge or jury, who remains passive and neutral throughout the proceedings (Ambos, 2003). The judge’s only role is to weigh facts and give the verdict. He is not directly involved in the questioning of witnesses and presentation of evidence; and the entire process is framed by strict rules designed to ensure equality and fairness (Ambos, 2003). This system is prevalent in civil law countries, including the U.S., Canada, New Zealand, Australia, and the UK.
Similarities between the Adversarial and Inquisitorial Systems
A similar feature shared by both the inquisitorial and adversarial systems is that both methods rely on an impartial fact-finder to preside over the case and give a verdict. The judge is not allowed to show bias or prejudice towards any party; they are supposed to remain independent and impartial (Dammer, Fairchild & Albanese, 2006). This is meant to protect the defendant from self-incrimination, and ensure that they receive a fair trial.
Another feature shared by both systems is the rules of evidence admission (McKillop, 2003). In the adversarial regime, certain evidence such as privileged information, prior convictions, hearsay, and evidence obtained by way of illegal search warrants, is deemed inadmissible (McKillop, 2003; Ambos, 2003). Similar restrictions apply in the inquisitorial regime, though not as harshly (Ambos, 2003). For instance, prior convictions are allowed though evidence obtained through illegal means is still inadmissible (Dammer et al., 2006). This implies that in both systems, activities of obtaining evidence should not override individuals’ fundamental rights, such as the right to privacy.
Differences between the Adversarial and Inquisitorial Systems
Despite the similarities outlined in the preceding section, the inquisitorial and adversary systems of justice are essentially different. The first difference between the two systems lies in their use of case law and judicial precedent. In inquisitorial systems, there is little use of case law (judicial precedent), which means that judges have the liberty to decide cases independently of previous decisions. Judges, therefore, tend to rely more on codes of law or statutes than on case law. In adversarial systems, on the other hand, decisions made previously by higher courts are binding on lower courts (New Zealand Ministry of Justice, 2016).
The two systems also differ in terms of the parties involved in investigation and evidence-gathering. In the inquisitorial regime, criminal proceedings are divided into three phases: the investigative, examining and trial phases. Evidence is collected by the presiding judge. In some cases, the judge oversees the investigative phase of the proceedings. They give instructions on how priorities are to be set, and how cases are to be handled (New Zealand Ministry of Justice, 2016). This is significantly different from the adversarial system, where investigations are conducted, and evidence collected by the parties in contest, that is the police and the defense (New Zealand Ministry of Justice, 2016).
A third area of difference between the two systems is the manner in which trials are conducted. In inquisitorial systems, the trial judge plays an active role in the interrogation of witnesses (New Zealand Ministry of Justice, 2016). He directs debate in the courtroom and makes a final decision. The defense counsel plays a secondary role, only adding crucial details to information presented by the trial judge. This is different from the adversarial system, where the trial judge acts more like a referee during proceedings. He is a passive recipient of information. In this case, the defense counsel is responsible for examining and cross-examining witnesses, as well as introducing evidence (New Zealand Ministry of Justice, 2016). The decision made, therefore, depends largely on the competence and skill of the defense counsel.
The two systems also differ in the rules governing evidence admissibility. In inquisitorial systems, rules of evidence are generally more lenient. Since juries are not used often, formal rules of evidence are not very stringent; the admissibility of evidence relies on whether or not the judge deems such evidence relevant (New Zealand Ministry of Justice, 2016). In Germany, Belgium, and France, the hearsay rule does not apply; the judge determines the value of such testimony (New Zealand Ministry of Justice, 2016). In adversarial systems, however, evidence which is of little probative value, or which is prejudicial is more likely to be withheld from juries. Hearsay evidence can, however, be allowed if it is deemed reliable (New Zealand Ministry of Justice, 2016).
Criteria for Assessing the Effectiveness of Justice Systems
There are different ways of assessing the effectiveness of a justice system. This proposal assesses the effectiveness of adversarial and inquisitorial systems based on how well they align with legal traditions. In his article titled, ‘the Criminal Justice System in Jeopardy’, K van Dijkhorst (1998) outlines the three fundamental aims of any legal system: i) to perform truth-finding, with the outcome being the acquittal of the innocent and conviction of the guilty; ii) to perform truth-finding in a manner that is fair and protective of the rights of both the accused and the society; and iii) to accomplish the two preceding objectives in an effective and efficient manner. In the author’s words, the legal system’s aim is “to arrive at the truth expeditiously and fairly” (Dijkhorst, 1998, p. 138). The subsequent sections use this criteria to assess the effectiveness of the two systems of justice above.
The Adversarial Justice System
The countries selected for analysis in this case are Australia, South Africa, and New Zealand.
Truth-finding: the logic of the adversary process is that fairness and justice are achieved if parties are allowed an opportunity to be defended in the courtroom by counsel knowledgeable in matters of law (Ambos, 2003). For this reason, defendants are accorded the right to counsel, and the defense attorney is given an opportunity to develop a case, and examine and cross-examine witnesses to prove the defendant’s innocence. Judges and jurors are required to make their decision and establish the truth based on the facts raised by counsel. This is the objective of truth-finding. However, this truth-finding may be defeated if the parties to the controversy are not equal (South African Law Commission, 2002). When an accused is unable to engage adequately in the process because they are not properly-represented, the truth may not emerge (South African Law Commission, 2002). This could occur if counsel is inexperienced or poor (South African Law Commission, 2002). The partisan approach to evidence-production beats the truth-finding objective. The case of S vs. Siebert in South Africa offers a perfect example — owing to his inexperience, incompetence, and lack of experience, the defense attorney failed to adequately inform the trial court of the accused circumstances for the purposes of sentencing (South African Law Commission, 2002). Giving his verdict, the judge mentioned that the defense counsel appeared not to be fully knowledgeable about the correctional supervision sentence (South African Law Commission, 2002).
Fairness: an accused right to a fair trial is often embedded in the Bill of Rights. The justice system is required to ensure fairness in the distribution of justice. The adversarial system places the burden of proving guilt/innocence in the hands of the litigants, which basically means that again, whether or not one is treated fairly depends on the experience and competence of counsel (South African Law Commission, 2002). The assumption of fair trial is defeated if a case is characterized by lawyers with varying degrees of resources, competent, and commitment (South African Law Commission, 2002). In New Zealand, for instance, section 25(f) of the Bill of Rights gives an accused a right to question and challenge witnesses brought against them by the prosecution. However, depending on the nature of the case, the court may choose to withdraw this right — it is then up to the defense attorney to develop a case for why the court ought to reinstate the same. Lack of competence and prior experience on the attorney’s part could deny the accused this right, as was the case in the rape case of R vs. Haig (1996).
Efficiency in the Administration of Justice: the adversarial system places the conduct of a trial in the hands of the litigants, and this could result in prolonged trials (South African Law Commission, 2002). The prosecution could cause delays as it attempts to marshal sufficient evidence. The defense, on the other hand, could employ delaying tactics to prevent the prosecution from taking place (South African Law Commission, 2002). These delays could ultimately defeat the very objectives of the trial. Australia offers a perfect demonstration of this. According to the Australian Institute of Criminology, two in every three listed trials fail to proceed on the designated day (Payne, 2007). Moreover, over half of these cases result from adjournment requests from the defense, the prosecution, or both (Payne, 2007). There are multiple cases where accused persons have been acquitted without being subjected to trial owing to delays (R vs. Robins (1844), Cooks vs. Purcell 1988 NSW, and Watson vs. Attorney General NSW 1987).
The Inquisitorial Justice System
Truth-finding: experts regard the inquisitorial system as being more focused on truth-finding than the adversarial system (Doak et al., 2015). This is partly true because the judge comes in as a professional third party, officially interested in determining the truth. This eliminates the party-motivation problem inherent in the adversarial system (Doak et al., 2015). The judge is not interested in winning as is the case with the litigants in the adversarial system; rather, he is interested in establishing the truth based on the actual facts of the case (Doak et al., 2015). This truth-finding perspective may, however, be defeated if state officials fail to act with integrity and adhere to norms of neutrality (Doak et al., 2015). Moreover, the system has a major flaw, in that it is impossible to reliably extract truth from a person unwilling to give information. The adversarial system is more effective in this regard because the litigants in the trial have more power to collect and procure relevant pieces of evidence; they are positive and target-oriented since they are the subjects of the process. The truth-finding objective would thus be achieved more effectively if elements from the two systems were combined
Fairness: the active role of the presiding judge in the inquisitorial system is to put together a case by gathering evidence, reading witness testimonies, determining legal arguments, and identifying issues to be addressed. This active role and direct involvement in the case could make it difficult for a judge to maintain impartiality, especially when the accused is an influential figure in the society. This risk could be minimized if all the players (judges, defense, police) share the burden of being vigilant in ensuring fairness and preventing violations to individuals’ constitutional rights as is the case in the adversarial system.
Efficiency: experts believe that justice is delivered more expeditiously in the case of an inquisitorial system than an adversarial one. Delays are less common as none of the parties gains from employing delaying tactics. Moreover, the presiding judge strengthens their own reputation by gathering evidence and speeding up the trial process. In terms of efficiency, therefore, the inquisitorial regime can be termed more appropriate than the adversarial system. This is evident from the high rates of efficiency (measured in terms of case clearance) in countries with the inquisitorial system compared to their adversarial counterparts. A study by (Dakolias, 2014), for instance, found Germany, Chile and Peru to have significantly high case clearance rates of 98%, 93%, and 104% respectively.
Conclusion
Every country uses fundamental rules and procedures to ensure fairness and justice in its legal system. The effectiveness of any legal system is determined by how well it facilitates truth-finding, fairness, and efficiency in the administration of justice. Studies have demonstrated that neither of the two primary systems of justice — inquisitorial and adversarial — can be termed as being totally efficient in relation to the three areas above. A more effective system is one that combines elements of both systems to give rise to a mixed justice system. Such a system would be more effective at reducing global crime than either system working independently.
Class Presentation
Selected Topic: Assessing the Effectiveness of Inquisitorial and Adversarial Justice Systems
My research paper sought to examine which one, between the adversarial justice system and the inquisitorial justice system, was more effective in achieving the fundamental aims of the legal system. I assessed the effectiveness of each system based on how well it: i) facilitated truth-finding; ii) achieved fairness for both the accused and the society; and iii) facilitated the expeditious and efficient delivery of justice. The paper begins with a description of the key feature of both elements, and the differences and similarities between the two systems. Finally, it assesses the effectiveness of each system based on the three elements above. My main aim was to understand which one of the two systems is more effective in realizing the traditional legal objectives of a standard justice system.
Methodology Used
I relied on secondary sources, particularly peer-reviewed journal articles and scholarly articles online touching on inquisitorial and adversarial justice systems. Nine articles were selected for review. The articles were selected based on relevance and simplicity. Information from the eight articles was then synchronized and presented in the form of a report. The nine articles provided crucial insight on the functioning of the two justice systems in different countries. The large number of articles is due to the fact that I was interested in determining how the justice systems in each of the six countries selected for analysis functioned. It was difficult obtaining single resources that covered all the six countries.
Findings
I made two key findings from the study:
i) Neither of the systems can be termed as being completely effective on all the three fronts, that is truth-finding, fairness, and efficiency.
The South African Law Commission report demonstrated that in adversarial systems, the truth-finding objective is defeated if counsel is incompetent or lacks commitment. When this happens, the defendant ends up being treated unfairly by the justice system. Moreover, as Payne (2007) demonstrates, the efficiency objective in such systems is hampered by delays orchestrated by either the prosecution or the defense. In Australia, for instance, two out of every three listed trials fail to proceed on the designated day as a result of adjournment requests from prosecutors and defense attorneys (Payne, 2007).
The case is no different in inquisitorial systems, where the truth-finding objective could be hampered by lack of integrity and neutrality on the part of judges and other state officials taking part in the investigation process. Moreover, the fairness objective is more difficult to achieve in such systems than in the adversarial regime. This is because the active role and direct involvement of the trial judge in the case makes it difficult for them to maintain impartiality, especially when the accused is an influential figure in the society. In terms of efficiency, however, the inquisitorial system is more adequate than the adversarial system. As Dakolias (2014) demonstrates in his study, efficiency and case clearance rates are significantly high in inquisitorial states.
ii) Higher levels of overall efficiency would be realized if elements from the two systems are combined to form a mixed justice system
The two systems, when combined, complement and make up for each other’s weaknesses.
Conclusion
I reached the conclusion that global criminology would be more adequately-addressed if international justice systems adopted a mixed approach, as opposed to primarily using either inquisitorial or adversarial regimes
References
Ambos, K. (2003). International Criminal Procedure: Adversarial, Inquisitorial or Mixed? International Criminal Law Review, 3(1), 1-37.
Dakolias, M. (2014). Court Performance around the World: A Comparative Perspective. Yale Human Rights and Development Journal, 2(1), 87-144.
Dammer, H. R., Fairchild, E. & Albanese, S. J. (2006). Comparative Criminal Justice System. Belmont, CA: Wadsworth/Thompson Learning.
Doak, J., McGourlay, C. & Thomas, M. (2015). Evidence in Context (4th ed.). Third Avenue, NY: Routledge.
Dijkhorst, K. (1998). The Criminal Justice System in Jeopardy: Is the Constitution our Bane? The Consultus, 11(2), 136-138.
McKillop, B. (2003). The Position of Accused Persons under the Common Law System in Australia (more Particularly n New South Wales) and the Civil Law System in France. University of New South Wales Law Journal, 26(2), 515-539.
Payne, J. (2007). Criminal Trial Delays in Australia: Trial Listing Outcomes. Australian Institute of Criminology (no. 74). Retrieved from http://www.aic.gov.au/media_library/publications/rpp/74/rpp074.pdf
The New Zealand Ministry of Justice. (2016). A Comparison of the Inquisitorial and Adversarial Systems. The New Zealand Ministry of Justice. Retrieved from http://www.justice.govt.nz/publications/global-publications/a/alternative-pre-trial-and-trial-processes-for-child-witnesses-in-new-zealands-criminal-justice-system/appendix-b-a-comparison-of-the-inquisitorial-and-adversarial-systems
South African Law Commission. (2002). Fifth Interim Report on Simplification of Criminal Procedure. South African Law Commission. Retrieved from http://www.justice.gov.za/salrc/reports/r_prj73_intrep5_2002aug.pdf
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