Adversarial vs Inquisitorial Systems of Justice
People living in the US, Great Britain, New Zealand, or Australia are familiar with their legal systems. These legal systems all are known as adversarial legal systems which are based on the Common Law system. However, if you're from France, Italy, or Germany, you know that the legal system in those countries work differently. These places fall under an inquisitorial legal system which originates from civil or Roman codes. Here we'll look at some of the differences, advantages, and disadvantages of both systems.
What is an Adversarial Legal System?
In the adversarial system the prosecution and defense attorneys compete against each other to win their cases before an impartial group of people or in front of a judge who must determine the truth in the matter brought to their attention. Therefore, the court acts as an impartial observer, decision-maker, or referee who listens to both prosecutors and defense lawyers while ensuring everybody follows the legal procedures and rules and the defendant(s) benefit from a fair trial.
Overall, the adversarial system considers that the best way to learn the truth of a matter is by fostering a competitive process to determine facts and oversee the accurate application of the law.
What is the Inquisitorial Legal System?
The biggest difference between the adversarial legal system and the inquisitorial one is that the latter emphasizes extensive pre-trial investigation and interrogations conducted directly by the court. In this system, the judge plays an active investigative role in the matter.
This system wants to make sure that no wrongful convictions plague society as a whole or undermine justice in general. For this reason, it grants plenty of power to the judge, who performs investigations, adduces evidence, talks to the witnesses, and consults with the police and the prosecution if necessary.
After the investigation is over, the judge will call for a trial if they consider enough evidence to establish guilt and indictment. The active role of the judge continues during the trial as well, as judges can ask questions and interrogate witnesses while comparing evidence.
Adversarial vs Inquisitorial Systems
As anyone can easily imagine, each country adapts these legal systems to serve society’s interests. Nevertheless, some argue that the inquisitorial system has some advantages over the adversarial one. Let’s see a few of them:
The quality of the outcome does not depend on the experience of the defense lawyers or their reputation. As you have seen in the movies – and many argue it is a fact – the more expensive and seasoned lawyers one gets, the higher the chances to obtain a positive outcome. In the inquisitorial system, the judge runs operations, so it matters less if the defendant has a high-class attorney or a public defender.
There is less emotional bias to determine an outcome. For example, you have seen it many times on TV: the ones who can spark the strongest emotions in a jury are the ones most likely to win a case. Sometimes, trials are won from the voir dire stage (the process of jury selection), especially if some members of the jury are sensitive to ethnic, religious, sexual, or behavioral issues pertaining to the matter. Other times, the moral outrage of some jurors (or the public) can change a verdict completely. In inquisitorial systems, the judge determines the facts of a case, basing their decisions on evidence and logic rather than emotions.
The inquisitorial system limits or eliminates all possible evidence distortions. In adversarial trials, lawyers and prosecutors can develop “creative arguments” and present some evidence in a distorted manner to make their cases. There is little room for misrepresentations, exaggerations, or other forms of evidentiary distortion in inquisitorial systems because the judge and other investigatory groups manage the evidence. The judge can dismiss any questionable practice or evidence, allowing everyone involved to examine the facts.
Some might think that an inquisitorial legal system aims to offer everybody a fair trial and judgment. No more high-end lawyers with enough money and resources to win un-winnable cases. No more last-minute facts introduced as evidence, no more shady practices. In inquisitorial systems, everybody plays with their cards very well visible on the table.
However, as many argued before, the inquisitorial system is vulnerable to two major issues: the judge’s bias and corruption. A judge can show bias against a culture, ethnicity, behavior, etc. Moreover, if the judge already made up their mind regarding the defendant’s guilt, you can say the truth was decided before the trial began. After all, the final judgment is in the hands of only one person: the judge.
Here is where the door opens to corruption. If the government/state, influential groups, or individuals want specific actions to be taken against a defendant, the fairness of a trial could come into question. In this system, it is not unheard of to secure a conviction in a few days (instead of months or years), especially if the investigators and the judge go into the case with a predetermined outcome, pressured by other interested groups.
Both systems have their strong points and flaws, and none of them is perfect. However, it is best to understand how each of the two functions. If not to get a fair trial in case you are part of one, at least to understand better what lawyers, prosecutors, and judges have to deal with every day on the job.