Adversarial versus Inquisitorial legal systems.

[lionking]

This is a spin-off from the Amanda Knox thread and some of the comments about the differences between the system used in the US (adversarial) and that used by many European countries, like Italy (inquisitorial).

A simple definition:

Inquisitorial system= when judge plays an aggressive role, he is almost like a prosecutor, a party

Adversarial system= its all about fight (two opposite sides), when judge tries to determine the truth of the case.

I know that in some jurisdictions the two systems can intermix. There are also Directors of Public Prosecution in Australia and elsewhere who play an inquisitorial role and decide whether the evidence is strong enough to mount a case. But the systems still have basic differences. For example, the skill of the lawyer would seem to be a more important factor in an adversarial system.
So I am interested in opinions about the two systems. Which, on balance, is superior and why?

 

[gumboot]

This is a spin-off from the Amanda Knox thread and some of the comments about the differences between the system used in the US (adversarial) and that used by many European countries, like Italy (inquisitorial).

A simple definition:


I know that in some jurisdictions the two systems can intermix. There are also Directors of Public Prosecution in Australia and elsewhere who play an inquisitorial role and decide whether the evidence is strong enough to mount a case. But the systems still have basic differences. For example, the skill of the lawyer would seem to be a more important factor in an adversarial system.
So I am interested in opinions about the two systems. Which, on balance, is superior and why?

The adversarial is superior, because that's what we use.

 

[drkitten]

I know that in some jurisdictions the two systems can intermix. There are also Directors of Public Prosecution in Australia and elsewhere who play an inquisitorial role and decide whether the evidence is strong enough to mount a case. But the systems still have basic differences. For example, the skill of the lawyer would seem to be a more important factor in an adversarial system.
So I am interested in opinions about the two systems. Which, on balance, is superior and why?

I think the inquisitorial system is superior in theory, the adversarial system in practice. Basically, if all of your judges are intelligent, objective, and fair, then the inquisitor can quickly and cheaply arrive at The Truth or at least a reasonable decision. Neither side has an incentive to play stupid legal games like changes of venue or delaying tactics or quibbles about whether or not this particular document is admissible evidence or not.

Of course, no country has the luxury of that type of judge. Which means that you can't count on a fair judge, so you need to find a way to incentivize "fairness" if it won't be delivered for free.

The problem with this is that these incentives get very expensive and time-consuming. One aspect of the American adversarial system that I really hate (although it can be quite lucrative) is the duelling-experts, for instance. Even in most adversarial systems (e.g. the UK, Canada, &c.), most "experts" are hired by the court and expected to be impartial (and can be punished for perjury if they're not). So if this particular medical malpractice case hinges on whether unobtainizol is a standard treatment for athlete's foot, rather than getting six shills doctors on each side, you just get the podiatrist from the local hospital to tell you what he uses, cutting your costs tenfold and reducing the likelihood that someone will be able to snow the jury with technobabble.

 

[Fiona]

I do not think the OP has got the difference quite right. I am not a lawyer nor an expert of any other kind and so my view may well not be right: there are such people here and they will no doubt correct me. It is all good if we learn. With that caveat this is my understanding:

In an adversarial system the first thing you have to grasp is that the aim is not to find the truth. At all. The aim is to test the evidence, and to arrive at a verdict through hearing the best argument which can be presented by each side to explain the facts and the evidence which is deemed admissable.

In this system it is presumed that one has two equal adversaries and that they will each present the best case they can. There are rules about what counts as evidence and much is excluded. Someone has to decide what is excluded and there are rules about this: for example hearsay is not allowed.

The role of the judge is to "hold the ring". To ensure that the rules are followed, that is. The jury's role is to listen to these two carefully constructed versions of events and to come to a fair and impartial decision. But it is not a decision about the truth: it is a decision about who won. No information, no matter how relevant, which is not presented as part of a case should be considered in making that decison

Once the case has been decided it is presumed that the best case has been presented for each side (because that is the assumption on which the system rests): it follows that an appeal can only be made on the basis that the trial in some way breached the procedural rules which are in place to ensure that the process is fair: or because new evidence has come to light which could not have been presented at the original trial: or because the verdict was "perverse": that is could not have been reached by reasonable people who heard the evidence presented. There may be other grounds for appeal but those are basic ones I think.

An inquisitorial system differs fundamentally because it is founded on the idea of getting to the truth. One consequence of that is that some kinds of evidence which are excluded from an adversarial hearing are admitted here. The inquisitorial entity (be it judge or prosecutor) investigates what he believes to be relevant and he can ask the police or anyone else to look into anything which he thinks has a bearing. In most such cases gaps or confusions can be explored in the court (judge's in adversarial systems can ask for clarifications and so can juries when they are deliberating: but they cannot ask for anything new, I think) not just for clarification about that which is unclear in the argument, but about omissions etc. For this reason such trials can look a little less formal (or even chaotic) compared to an adversarial system. But the reason lies in the fundamental aim: they overtly seek truth and the adversarial system does not.

That fundamental aim also naturally leads to an easier route to appeal. The appeal is heard "de novo" because there is not the same possibility of final judgement if the aim is to get to the truth as there is if the aim is to determine who won. The questions to be addressed can be far wider.

I do not agree with drkitten that there is a difference predicated on a utopian approach on the one hand and a pragmatic one on the other. Each has its ideal form: and each has its real world failings.

Both attempt to recognise their particular weaknesses and to put in systems to minimise those. I think they largely both succeed.

I do not know that either is to be preferred with this major exception: I do not think an adversarial system is able to deal well with offences against the vulnerable: such as those with mental health problems or children; or with charges against those groups.

The system assumes two equal adversaries and in those cases that is not true. The barristers and lawyers who represent them are to some extent dependent on what their client can give them: and in those cases the parties are not equally competent.

Here, if nowhere else, I think that the inquisitorial system is more flexible because it can admit all that is known: that is much harder for an adversarial system. There is some recognition of that. For example there are special "vulnerable witnesses" arrangements in this country which are in place because the problem is recognised. Perhaps they are enough: but the presumption is against their use and until recently they were very limited in application. Recently there have been major changes to these special provisions so that the status must be offered to children, for example, rather than having to be applied for. But there is still a problem for other vulnerable people who do not fall into an obvious group. And there is still also a tension because such arrangements challenge the very foundation of the system itself: they are used with reluctance.

 

[drkitten]

In an adversarial system the first thing you have to grasp is that the aim is not to find the truth. At all. The aim is to test the evidence, and to arrive at a verdict through hearing the best argument which can be presented by each side to explain the facts and the evidence which is deemed admissable.

I think that's a misstatement. The adversarial system is supposed to find the truth as well. The assumption is that the truth will out when both sides of a dispute (fairly) present their best case, and any rational person can weigh the two cases and determine which one is true.

The assumption behind the inquisitorial system, on the other hand, is that suitably chosen inquisitor given free license to inquire can determine what is true.

There's way too much at stake to treat the adversarial system as simply some sort of "game" to see "who won."

It may help to look at some of the precursors and see why the adversarial system failed. The idea of trial by ordeal, or trial by combat, for example, was also a way to "find the truth," on the assumption that God would make truth manifest. This assumption (to put it lightly) could not be established reliably.

The English, justifiably, did not trust their king or his appointed inquisitors, and the king lacked the authority to force them to accept it. Most of the Continent had stronger kings (and possibly more abusive barons) so the idea of the regal inquisitor sitting in judgment was more acceptable.

An inquisitorial system differs fundamentally because it is founded on the idea of getting to the truth. One consequence of that is that some kinds of evidence which are excluded from an adversarial hearing are admitted here.

Again, not... quite. You can show anything you like to the judge and he will make his decision about whether or not it's relevant or important; he fulfills the same role in an inquisitorial system. If you show him a dead vole or some other piece of trash, he will simply and silently disregard it, which has the same effect as ruling it inadmissible.

 

[Fiona]

I think that's a misstatement. The adversarial system is supposed to find the truth as well. The assumption is that the truth will out when both sides of a dispute (fairly) present their best case, and any rational person can weigh the two cases and determine which one is true.

Certainly. I was probably less clear than I should have been: it is an assumption that the truth will come out of that process. But it not an avowed aim: it is a premise that the truth will emerge in the course of this. If there is any reason to suppose that the process will not/has not achieved that, the truth loses out in favour of integrity of the procedure. I do not think that is open to doubt and I do not mean to imply there is anything wrong in the assumption. It is one way of approaching the problem and it certainly has its strengths.

The assumption behind the inquisitorial system, on the other hand, is that suitably chosen inquisitor given free license to inquire can determine what is true.

My turn: that is a mis-statement. The inquisitor pursues his investigation but the case is still heard by a jury and they determine what they believe happened. There are also very serious checks on the power of the inquisitor in that he must be able to convince independent judges that he has evidence on which to proceed. He has free licence only in that he can pursue lines of inquiry which seem relevant to him

There's way too much at stake to treat the adversarial system as simply some sort of "game" to see "who won."

I did not say it was a game: I said that who wins the formal argument is the essence of the verdict. Nowhere did I imply it is not a serious business and nowhere did I say it. But I do not think my characterisation is wrong.

The rest of your post does not seem to me to do what you set out to do but I do not propose to try to get my head round hundreds of years of judicial history in many countries with different systems in a post. It would necessarily be simplistic and I do not really see what it would add.

I will just say that neither system failed and to suggest that they did is odd

 

[drkitten]

I will just say that neither system failed and to suggest that they did is odd

Sorry, let me be more specific. The inquisitorial system was tried in England and failed there; the inquisitors were not trusted enough, and were viewed largely as an illegitimate extension of royal power. (See Carta, Magna.)

Hence the formalization of the adversarial system.

 

[Fiona]

The Scottish system is something of a hybrid, actually. But as I say, judicial history is beyond our scope here, at least in my opinion

 

[Tsukasa Buddha]

This has always interested me since we covered it in 9th grade Social Science. I thought it sounded like a good way to take care of the wealthy being able to get the best defence and the poor being told by a court appointed lawyer that they had better just plead guilty.

But I haven't found a good book for me to research how Inquisitorial systems work compared to the American Adversarial in the real world.

 

[lionking]

This has always interested me since we covered it in 9th grade Social Science. I thought it sounded like a good way to take care of the wealthy being able to get the best defence and the poor being told by a court appointed lawyer that they had better just plead guilty.

But I haven't found a good book for me to research how Inquisitorial systems work compared to the American Adversarial in the real world.

It's interesting in that many have said that Amanda Knox would be free now under an Adversarial system.

 

[Uncayimmy]

Certainly. I was probably less clear than I should have been: it is an assumption that the truth will come out of that process. But it not an avowed aim:

In many jurisdictions prosecutors are forced to turn over exculpatory evidence to the defense. The defense also has certain rights to the evidence the state intends to use. To me that indicates an avowed aim to get at the truth of whether the defendant committed the crime or not.

The prosecutors themselves are supposed to seek the truth, which is essentially what a judge would do in an inquisitorial system, the major difference is the former is in the executive branch and the latter in the judicial branch.

An inquisitorial system differs fundamentally because it is founded on the idea of getting to the truth.

Well, you certainly didn't convince me of this assertion.

 

[luchog]

This has always interested me since we covered it in 9th grade Social Science. I thought it sounded like a good way to take care of the wealthy being able to get the best defence and the poor being told by a court appointed lawyer that they had better just plead guilty.

That really isn't a failing of the adversarial system; however. In an inquisitorial system, the wealthy and influential have at least as much, possibly more, power in the courtroom, due to class privilege. This is a large part of the reason that the inquisitorial system failed in England. It was seen as protecting those of wealth and influence, loyal to the king; at the expense of the lower classes and those outside the king's favour. Money and power have a disproportionate influence in either system, and the best that can be done is create checks that limit that influence. In an adversarial system, a defendent who does not believe that his court-appointed attorney adequately represented his case can use that as a basis for appeal; or even in extreme cases to have him replaced during the trial (depending on jurisdiction).

The US does not rely exclusively on adversarial systems. In fact, cases involving summary judgement, such as low-level misdemeanor offenses and traffic courts, typically use more of a predominantly inquisitorial format.

The biggest problem with inquisitorial systems is judicial prejudice. This is harder to correct for in a purely inquisitorial systems than it is in an adversarial system. Typically, it's mitigated by having a trial presided over by a panel rather than a single judge, or by an indepenent review by a judge not involved in the trial. However, this is less able to correct for systemic or cultural biases than a juried adversarial system; particularly as the juries are appointed by the court, and not subject to voir dire as they are in an adversarial system.

The inquisitorial system lacks the presumption of innocence inherent to the adversarial sytem; but it also lacks the adversarial system's problem of politically motivated prosecutors.

Both have their inherent flaws; and the strength of any particularly judicial system is how well it uses its strength and compensates for its weaknesses.

 

[SezMe]

The prosecutors themselves are supposed to seek the truth, which is essentially what a judge would do in an inquisitorial system, the major difference is the former is in the executive branch and the latter in the judicial branch.

I thought the prosecution is supposed to seek convictions. They will not go to trial if they do not think they can prove their case beyond a reasonable doubt. That is not the pursuit of the truth.

 

[Uncayimmy]

I thought the prosecution is supposed to seek convictions. They will not go to trial if they do not think they can prove their case beyond a reasonable doubt. That is not the pursuit of the truth.

How is that not the pursuit of truth? The investigative arm of the government still did their investigation and typically does not close the case until someone is charged. The reality is that sometimes the truth is unknowable given the restrictions of time, budget and civil rights.

I'm not very familiar with the inquisitorial approach, but from what I can gather they operate in a similar manner in that an investigative judge doesn't get involved until they believe there's a case to be made. Furthermore, it appears that the people deciding the case are not questioned for bias and only a 2/3 vote is needed to convict. How is *that* the pursuit of truth?

On the surface I see the two systems as having one huge, fundamental difference. The adversarial system will risk failure to find The Truth at the expense of letting the guilty go free while the inquisitorial system seems to be willing to find The Truth at the expense of locking up the innocent.

 

[Fiona]

Questioning of juries is not done in the UK and so far as I am aware the English system is wholly adversarial: the Scottish one is a bit of a hybrid but mostly adversarial I think it would be fair to say. So questioning of the jury is not part of the system per se: it is the american answer to potential bias and other places have different ways of dealing with that problem.

In Scotland we also have a majority verdict though it is not 2/3. I am fairly sure that is true in England too: but I could easily be wrong about that

 

[lector]

Truth & not

Originally Posted by Fiona
In an adversarial system the first thing you have to grasp is that the aim is not to find the truth. At all. The aim is to test the evidence, and to arrive at a verdict through hearing the best argument which can be presented by each side to explain the facts and the evidence which is deemed admissable.

Originally Posted by drkitten
I think that's a misstatement. The adversarial system is supposed to find the truth as well. The assumption is that the truth will out when both sides of a dispute (fairly) present their best case, and any rational person can weigh the two cases and determine which one is true.

Certainly. I was probably less clear than I should have been: it is an assumption that the truth will come out of that process. But it not an avowed aim: it is a premise that the truth will emerge in the course of this. If there is any reason to suppose that the process will not/has not achieved that, the truth loses out in favour of integrity of the procedure. I do not think that is open to doubt and I do not mean to imply there is anything wrong in the assumption. It is one way of approaching the problem and it certainly has its strengths.

I would like to qualify some of these statements, based on my one experience of serving on a criminal trial jury from start to finish. In some instances, the defense's sole argument is that there is insufficient evidence in the prosecution's case to justify a guilty verdict, and that is the sole truth that emerges. In such cases, a "not guilty" verdict establishes only that the prosecution couldn't prove its version of events beyond a reasonable doubt, even though that version might well have been the truth.

I think that Fiona's initial statement comes closest to characterizing the reality of a US criminal trial.

ETA - I guess this is just an expanded version of UncaYimmy's last paragraph above.

 

[SezMe]

How is that not the pursuit of truth? The investigative arm of the government still did their investigation and typically does not close the case until someone is charged. The reality is that sometimes the truth is unknowable given the restrictions of time, budget and civil rights.

I am not privy to criminal statistics but I do not think it is the case that an investigation is "typically" not closed until someone is charged. What evidence do you have for that statement.

I generally agree with your last statement although I wouldn't use the word "unknowable". Rather the restrictions that you rightly cite make the truth "unproveable", which I would argue is fundamentally different than unknowable.

 

[Uncayimmy]

I am not privy to criminal statistics but I do not think it is the case that an investigation is "typically" not closed until someone is charged. What evidence do you have for that statement.

I'm actually not sure what you are asking. To the best of my knowledge in the USA, unsolved cases are not closed until:

* Someone is charged and convicted
* Statute of limitations runs out.
* Is closed administratively (see below)

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/09/AR2008010902373.html
"Under General Order 304.1, D.C. police are allowed to close cases administratively under specific circumstances: a suspect is dead or commits suicide; two people kill each other; a dying suspect confesses; a suspect is already in prison or being prosecuted; or a suspect is in a country where extradition is not allowed."

This is why some departments have investigators assigned to cold cases. That is, cases that are still open but not currently active.

I generally agree with your last statement although I wouldn't use the word "unknowable". Rather the restrictions that you rightly cite make the truth "unproveable", which I would argue is fundamentally different than unknowable.

If you can't prove it, how can you know it? It becomes a matter of semantics as to whether you "know" or "can prove" someone violated a particular law. I say that if it's a matter of law, you can't "know" unless you "prove" it according to those laws. If you just wanna have a good idea of what happened, take it to civil court.

 

[INRM]

I think the adversarial system might be better off toned down a little.

For example the defense attorney's job perhaps should not be to win at any legal cost, but to simply insure the civil rights of the defendant are upheld.

With that in mind the prosecutor's position also should be changed to "win at any cost" to "uphold the law, try those who are likely guilty" and "try and find the truth within the Constitution's bounds" (In other words no unauthorized search and seizures, and such)

 

[KingMerv00]

For example the defense attorney's job perhaps should not be to win at any legal cost, but to simply insure the civil rights of the defendant are upheld.

That's what the judge is supposed to do.