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1.2 Adversarial and Inquisitorial

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37 views17 pages

1.2 Adversarial and Inquisitorial

Uploaded by

Miranda Russell
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Adversarial and Inquisitorial

systems
Adversarial System Introduction

 The adversarial system is used in countries with common law jurisdictions. In court,
advocates for both sides represent their parties’ case or interest. Each party builds a case
by producing evidence and witnesses and attempts to discredit the opposition.
 The adversarial system or adversary system is a legal system represented by two lawyers in the Common
law. In front of a fair group or group Who has no right to decide the truth; Usually a judge or jury Decide
accordingly.

 The criminal justice system is considered a state. They use its investigative agencies and government
consultants to investigate and provide the evidence to be presented in court.
Features of Adversary
System

• Role of the Victim


• Role of the Judge
• Role of Parties
• The need for Legal Representation
Role of the Victim

 Victims are not a party to proceedings. Prosecutors act on behalf of the State
and do not represent the victim.
Role of Judge

• Judges must ensure compliance with court procedures and Strict rules of evidence and procedures
• Ensure that each section is treated fairly
• Act as an impartial judge
Their responsibilities are:
 Compliance with Evidence and Procedures: It is responsible for determining the acceptance of
evidence and ensuring proper procedures to file their case
 Judging legal questions and determining the relevant laws
 Problem Solving - Asking questions. A witness may be called back to cleared up, or a new
witness may be called with the consent of both parties. The main objection is to clear up any
misunderstandings.
 Directing the Jury-In case of a case, the jury is instructed: any issues that may arise during the trial; Pre-
trial admissions or other matters relating to jurors may be addressed to jurors in connection with or
related to the capacity of directors. Understanding of its functions and the experimental process.

 Deciding questions of fact when there is no jury- Decide whether judgments and evidence are believed
to be accurate in the absence of a jury.

 Determining cleanliness or treatment- If the accused is found guilty, the judge determines his innocence.
If the judge opens their case, the judge will decide the case without a jury
Role of Parties

 Instigating proceedings – In a civil case, the plaintiff bring the case to court and in
criminal cases the state brings the case in the court.

 Investigating the facts – parties choose the methods they will use to investigate the facts
and submitted the facts in the court.

 Deciding which facts should be brought before the court –Everyone decides which kind of
evidence is best for their situation. The theory does not provide all the evidence for both
parties, but the truth should be obtained through cross-checking.
Need for Legal Presentation

 The role of preparing and handling a case is usually carried out by legal representative
 Legal representatives are familiar with the rules and regulations to be followed by
adversary system
 Help the pieces present their best potential and achieve a fair result.
Relevance to Adversary System

 Impartiality of judges/magistrates is really important to make it fair.


 Can only make decisions based on facts brought before the court.
 They have no previous knowledge.
Inquisitorial System Introduction

 The inquisitorial system often applies in countries with a codified system of law. An
initial investigation is often led by an examining magistrate, whose report is presented to
a trial court.
 Judges are free to decide each case independently of previous decisions, by applying the
relevant statutes. There is therefore heavier reliance on comprehensive statutes/codes of
law.
Role of Judge

• The judge acts as a fact finder, and the officers of court


• The judge takes a more active role and questions witnesses.

Their responsibilities are:


 Judges are required to direct the courtroom debate and to come to a final decision
 The Judge assumes the role of principal interrogator of witnesses and the defendant, and is under an obligation
to take evidence until he or she ascertains the truth.
 It is the Judge that carries out most of the examination of witnesses, arising from their obligation to inquire into
the charges and to evaluate all relevant evidence in reaching their decision.
Investigation

The typical criminal proceeding is divided into 3 phases:


• the investigate phase
• the examining phase
• the trail
 In the investigative phase, a government official (generally the public prosecutor) collects evidence and decides
whether to press charges.
 Prosecutors carry out investigations themselves or request Police to do so.
 In some inquisitorial systems, a Judge may carry out or oversee the investigative phase.
Examining Phase

 The examining phase is usually conducted in writing. An examining Judge completes and reviews the
written record and decides whether the case should proceed to trial.

 The examining Judge plays an active role in the collection of evidence and interrogation of witnesses.
Role of the Victim

 The victim generally has a more recognized role – they usually have the status of a party to proceedings.

 In some jurisdictions, victims have a formal role in the pre-trial investigative stage, including a recognized
right to request particular lines of inquiry or to participate in interviews by the investigating authority.

 At the trial, they generally have independent standing and some allow victims to be represented by their
own lawyer.
Rights of the defendant

 Rights of the defendant In both systems the accused is protected from self-incrimination and guaranteed
the right to a fair trial.
Rules of Evidence

 The rules around admissibility of evidence are significantly more lenient. The absence of juries in many
cases alleviates the need for many formal rules of evidence.

 More evidence is likely to be admitted, regardless of its reliability or prejudicial effect.

 Evidence is admitted if the Judge decides it is relevant.

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