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Adversarial and inquisitorial system

The adversarial system is based on the opposing sides acting as adversaries who
compete to convince the judge and jury that their version of the facts is the most
convincing. The lawyers are given free choice in terms of which issues are presented,
what evidence to adduce in support of their submissions and what witnesses to call. The
judge presides over the trial and rules on disputed issues of procedure and evidence,
asking questions of the witness only to clarify evidence, and concludes the trial by
summing-up the facts for the jury and advising them of the relevant law. It is not open
to the judge in an adversarial system to enquire beyond the facts and evidence that are
presented by the opposing lawyers; his role is largely passive; he is an impartial referee
who advises the jury on matters of law.

This differs dramatically to the role of the judge in an inquisitorial system which is based,
as the name suggests, on an inquiry into the case thus the judge is not limited to
hearing the submissions of the parties but can direct the lawyers to address specific
points or to call particular witnesses. The title of the presiding judge as ‘juge
d’instruction’ which translates as ‘investigating magistrate’ in the French criminal justice
system gives in indication of the role of the judge in directing proceedings. Unlike the
adversarial system, the role of the inquisitorial system is not to determine guilt or
innocence of one particular person but to find the truth. As such, the judge, as
investigating magistrate, conducts an inquiry that involves the questioning of witnesses
and suspects, the issue of search warrants and an examination of the evidence with the
aim of discovering both incriminating and exculpatory evidence. The prosecution and
defence lawyers will keep a close eye on the judge’s investigation and can request that
he considers specific evidence or takes a particular course of action but the ultimate
responsibility for the line of inquiry remains that of the judge. If, at the conclusion of the
investigation, the judge decides that there is a case against a particular suspect, the
matter will proceed to trial which will take an adversarial format.

An inquisitorial system involves a preliminary investigation conducted by an

investigating magistrate as a means of seeking the truth. It is accepted that the
adversarial system does not do this:

A trial does not involve the pursuit of truth by any means… the judge’s role in that
system is to hold the balance between the contending parties without himself taking
part in their disputations. It is not an inquisitorial role in which he seeks himself to
remedy the deficiencies of the case on either side (R v Whithorn (1983) 152 CLR
657 per Dawson J at 682).
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As the respective lawyers for the Crown and the defendant in an adversarial system have
the freedom to choose what evidence to present to the court, there is a possibility that
the truth in its entirety will not emerge at all. Although the adversarial system does
operate within a system of rules of disclosure, this does not compel both sides to be
entirely open with regards the evidence that they possess; it merely requires that they
disclose any information that is specifically requested by their opponent. Of course, this
operates to restrict the emergence of evidence; if it is not known to exist, it will not be
requested. Therefore, in an adversarial system, if the defence is in possession of negative
evidence, they can merely ignore it and hope that it is not requested by the prosecution
(and vice versa).This would not occur in an inquisitorial system as the investigating
magistrate is in charge of an examination of all of the evidence, although he can be
directed towards evidence by the lawyers on both sides but they do not have the ability
to withhold or obscure evidence from him. This approach, then, seems to be a more
effective way of finding the truth in a particular case as there are no restrictions on the
emergence of key evidence thus all the facts and evidence are available for scrutiny.

This means that a thorough review of the facts has occurred prior to the
commencement of a trial thus it is thought to be a cost-effective means of dispensing
justice as the pre-trial investigation will reduce the number of contested trials. This can
be subject to trenchant criticism for its erosion of a fundamental principle of criminal
justice; the presumption of innocence. A defendant in an inquisitorial system is only on
trial as the investigating magistrate believes that the evidence suggests that he is guilty.
As such, how is it that his subsequent trial can be said to take place within the context of
a presumption of innocence when all those involved in the process, including the jury,
know that the defendant is only there because the investigating magistrate is convinced
of his guilt?

The inquisitorial system appears to be more adept at identifying and investigating the
relevant facts and ensuring that this is all taken into account when deciding to proceed
with a trial. As such, it seems to be a more cost-effective method of conducting a
criminal trial. The central question, however, is whether it dispenses justice. An
investigating magistrate may reach an erroneous conclusion that leads to the wrong
individual being tried in circumstances where his presumption of innocence is eroded.
An adversarial system protects against wrongful convictions by ensuring that the
process is slanted in favour of the defendant in the belief that it is better for ten guilty
men to walk free than for one innocent man to be imprisoned.
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Adversarial method
According to Black’s law dictionary, “Adversarial system is a legal structure
where a judge rules on a lawsuit initiated by a lawyer who sues the complainant
and the defence counsel who protects the complainant. The jury is often
required to assess these proceedings.” 

There is a head-to-head battle between two skilled advocates in this system.

They are practising to compel the judge through plausible arguments. When the
prosecutor is more eligible to push the lawsuit, there is no justification for that.
The predominant expectation of the network of adversaries is that the fight
between the attorneys would expose the facts without any direct intervention by
the court.

Inquisitorial method
According to Black’s law dictionary, the inquisitorial procedure is “Evidence of
the application of criminal law under which the judge performs specific functions
in the court like, deciding what questions to pose and establishing the purpose
and nature of the inquiry.

Judges review and answer concerns in this framework. Throughout France, the
judge and chief prosecutor are being investigated. The success of the review
relies on the willingness of each judge to be rigorous and honest.

Comparing inquisitorial and adversarial

systems
The life of the accused party is at stake in the adversarial system regardless of
the strength and persuasiveness of the committees. Proponents are viewed as
facts so that they may conceal negative details, which is deceptive. This can
contribute to the arrest of the innocent, more focus is put on the rights of the
complainant, and less importance is put on the rights of the complainant. The
Inquisitorial process is designed to concentrate on the quest for facts without
danger.

1. In the adversarial framework, previous rulings by higher courts are

known to have a cumulative impact, whereas, in the inquisitorial
method, precedents are not granted as much importance. Judges or
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juries use the applicable laws separately and give priority to the code
of law.
2. In the adversarial method, the actors, e.g. the police and the
prosecution, have to supply information, whereas, in the inquisitorial
framework, the government authorities (PPs) gather proof, can
perform an inquiry themselves or may order the police to do so. The
PPs will tell the police of the goals. A judge can perform an
investigation in some inquisitorial structures. Conversely, judges of the
adversarial framework may not play a part in the inquiry.
3. This is nothing but an impartial review in the leader of the adversarial
process, so cross-examination is just part of the court. The questioning
of testimony and the gathering of evidence shall be carried out by the
investigating judge of inquisitorial regimes.
4. In an adversarial method, a counsel for the prosecution and another
working on behalf of the defendant is expected to testify before the
adjudicator. And the proof, in particular, shall be removed and the
witnesses shall be cross-examined or re-examined. Whereas, the
archive of testimony in the inquisitorial method is now in the
investigation process, as there is no cross-examination and re-
examination of the witnesses, however, the witnesses are examined
and confronted.
5. The judge must ensure that the due process of law is observed in the
trial and that the verdict is made. The prosecutor shall present proof
and challenge witnesses in the adversarial method. Whereas, under the
inquisitorial system, the judge (or jury) guides the trial, the trials and
the questioning of the suspects, as well as the examination of the facts
under order to make a verdict.
6. There is a clear categorization between admissible and inadmissible
facts in the adversarial method, so hearing testimony becomes more
readily accessible because it is accurate. The regulations on
admissibility are more lenient under the inquisitorial method. If the
judge determines the specific proof is appropriate, it is agreed. There is
no such law in other inquisitorial structures.
7. The criminal retains the right to a free hearing and self-incrimination
under both the systems.
8. Under the adversarial method, the victim is not a witness to the court
in which the prosecution is made against the criminal on behalf of the
Court. Under the inquisitorial system, the accused is a witness to the
court.
9. The adversarial method is usually practised in common law countries,
judges have broad authority to adjudicate and, the inquisitorial
framework is pursued in civil law countries, there are separate judges
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concerned with statutory law, criminal law, regulatory law, corporate

law and personal or private law.