Term Paper on "Adversarial vs. Inquisitorial Legal Systems"

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The Adversarial vs. Inquisitional Systems

The adversarial system of law

The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates representing their party's positions and not on some neutral party, usually the judge, trying to ascertain the truth of the case. The inquisitorial system that is usually found on the continent of Europe among civil law systems (that is, those deriving from the Roman or Napoleonic Codes) has a judge or a group of judges who work together whose task is to investigate the case before them. Judges in an adversarial system tend to be more interested in ensuring the fair play of due process, or fundamental justice. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision rendering obsolete the judicial process in question - rule of law being illicitly subordinated by rule of man/woman under such discriminating circumstances. The rules of evidence are also developed based upon the system of objections of adversaries and on what basis it may tend to prejudice the trier of fact, which may be the judge or the jury. In a way, the rules of evidence can function to give a judge limited inquisitorial powers as the judge may exclude evidence she believes is not trustworthy or irrelevant to the legal issue at hand. Peter Murphy in his Practical Guide to Evidence recounts an instructive example. A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' 'No, my lord, merely the evidence', replied counsel. The name adversary system may be misleading in that it implies it is only within this type of system in which there are opposing prosecution and defense. This is not the case, and both modern adversary and inquisitorial systems have the powers of the state separated between a prosecutor and the judge and allow the defendant the right to counsel. Indeed, the European Convention on Human Rights and Fundamental Freedoms in Article 6 requires these features in the legal systems of its signatory states.

The right to counsel in criminal trials was initially not accepted in some adversary systems. It was believed that the facts should speak for themselves, and that lawyers would just blur the matters. As a consequence, it was only in 1836 that England allowed suspects of felonies to have legal counsel (the Prisoners' Counsel Act); and it is only in 1963 that the U.S. Supreme Court imposed that legal counsel should be granted to felony defendants in state courts. One of the most significant differences between the adversary system and the inquisitional system occurs when a criminal defendant admits to the crime. In an adversary system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution of her or his crime, a false confession will not be accepted even in common law courts. By contrast, in an inquisitional system, the fact that the defendant has confessed is merely one more fact that is entered into evidence, and a confession by the defendant does not remove the requirement that the prosecution present a full case. This allows for plea bargaining in adversary systems in a way that is difficult or impossible in inquisitional system, and many felony cases in the United States are handled without trial through such plea bargains. Another difference is in the rules of evidence. Because the adversarial system assumes that the evidence is to be presented to nonprofessionals rather than to jurists, the rules of evidence are considerably stricter. Rules on hearsay are much stricter in most adversarial systems than in inquisitorial systems; though often lower tribunals are allowed some flexibility in applying the strict rules of common law evidence such as in domestic relations courts or in small claims proceedings where the parties are often unrepresented by lawyers and the judge functions as more of an inquisitor to protect the interests of children than a neutral arbiter of justice.

The Australian system

Australia is not a pure adversarial system. For example, coronial inquests -- proceedings held to determine the cause of death -- are much more inquisitorial than other forms of criminal proceeding, and the procedures and rules of evidence of such proceedings reflect this. Similarly, there are a range of tribunal systems other than the Australian criminal and civil courts that use more of an inquisitorial than an adversarial approach.

Decisions about the fitness of people to plead in criminal trials or to be involuntarily detained in a psychiatric institution may be made by an interdisciplinary team of decision-makers sitting on a mental health review tribunal. A further example would be the work of parole boards which also typically conduct inquiries into the suitability of releasing prisoners from gaol on completion of their non-parole periods.(Bell & Watson, 1984) Perhaps the more inquisitorial approach by these tribunals is due to the fact that they must consider not only the relationship between parties, but the relationship between parties and members of society as a whole.

However, some have argued that Australian tribunals cannot and do not operate as clear examples of inquisitorial procedure. This is simply because Australian tribunals are not funded and resourced to conduct true, European-style inquisitions) Balmford laments that Australian tribunals, despite early vision to the contrary outlined in the Bland Report that recommended a design for the Australian tribunal system, should only be described as 'interventionist'. Rather than inquisitorial bodies, these tribunals are still forced to ask and rely on the parties to conduct requisite investigations to bring new evidence to a hearing; making the process a hybrid of inquisitorial and adversarial justice.(Balmford, 1984)

Because the Australian system has both aspects of adversarial justice as well as inquisitorial justice, it is useful to examine the empirical legal psychological research to understand when we may prefer one form of procedure to another

In a classic empirical study, Thibaut and Walker (1975) sought to investigate the choice of alternative dispute resolution over going to court, but also whether adversarial procedures are generally considered fairer and more satisfactory than inquisitorial procedures In this study of American participants), results showed that adversarial procedures were judged as more satisfactory irrespective of trial outcome. Data analyses also showed that when the trial outcome is taken into account, criminal trials producing the wrong result (guilty when innocent; or innocent when guilty) via inquisitorial procedure were judged to be significantly less satisfactory than adversarial trials that produced the same decision errors. Therefore, the sample of Americans studied appeared more tolerant of legal error caused by the adversarial process than by legal errors caused by inquisitorial procedures.

Lind, Erikson, Friedland and Dickenberger (1978) extended the study of the American adversarial mentality by comparing it, and the similar English preference for adversarialism, to the preferences of French and German participants. The study suggested that even the Europeans rated adversarial procedure as fairer than inquisitorial procedure. This led researchers to speculate that a basic psychological preference for adversarial justice existed and this preference may be more powerful than civic, legal and cultural socialisation processes.

Many researchers have described this basic psychological preference for adversarialism as an expression of the desire for process control or procedural fairness by those who otherwise cede decision control or outcome control to the court as a legitimate decision-maker. In other words, the ability to control how your legal dispute is described, how it is presented to an adjudicator, and the degree of opportunity (called 'voice') you have to present and control the narrative of your legal controversy, are highly important aspects of the popularity of adversarial justice. This process control and voice extends a form of respect to litigants and defendants that may not be as readily extended to those who are investigated by purely inquisitorial tribunals or courts.

As important as this research is for highlighting the role of perceptions of procedural justice in evaluations of legal procedure, it falls short of explaining when inquisitorial processes may sometimes be tolerated within predominately-adversarial systems such as Australia. Further research must be conducted on why Australians may consider inquisitions, even with their limited or non-existent process control, to be legitimate some of the time. The key to unravelling the apparent mystery of the inquisitorial mentality, and better judging the context-dependence of the procedural preferences, may lie in research that focuses on perceptions held by real litigants and defendants; especially those who are repeatedly involved in legal proceedings.… READ MORE

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