Adversarial System vs Inquisitorial System - Essay Example

Adversarial System vs Inquisitorial System There is an ongoing debate concerning which judicial system is better, whether it is adversarial or inquisitorial. Those who support adversarial trials state that it creates an atmosphere that is motivated by the accurate finding of facts as well as providing an advanced quality of legal proceedings. They state that after one side of the proceedings wins the case, there is always a sense of closure for those who have been involved in the case. Moreover, it is always rare to find anyone who has any grievance concerning how the proceedings took place, because they believe that justice has been done. On the other hand, the proponents of the inquisitorial judicial system often state that this system is more suitable because it caters for social change as well as ensuring the creation of an efficient policy for court proceedings. This creates an environment where cases are dealt with swiftly and efficiently, and because the court has a hand in the investigations, it is a rare thing for false evidence to be presented. Moreover, the inquisitorial proceedings help ensure that the cost of legal proceedings remains low, because the court caters for the expenditure of the investigations being carried out (Ringnalda 120). When one closely considers these systems, one would say that the inquisitorial system is more efficient in dealing with cases than adversarial system. In this paper, we shall analyze both of these systems and their application in various situations, assessing their strengths and weaknesses. The adversarial system is a judicial system that involves two opposing parties being represented by advocates, who defend the position of these parties before a group of people who are considered objective. In most of the cases handled under an adversarial system, the divergent parties present their cases before a judge for arbitration. This system is quite different from the inquisitorial system, where a judge, or a group of them, has a direct hand in the investigation of the cases, which have been brought before them. This is an advantage over the inquisitorial system because in such a system, there is always likelihood that the judge may be impartial in making decisions concerning the case. Consequently, the judge may end up making a decision in favor of the party to which he or she is partial. This is not the case in an adversarial system because the purpose of the judge is to listen to the proceedings and make a balanced decision based on the evidence presented by the parties involved. In this system, it does not matter which side is correct as long as the evidence presented gives an advantage to one party. The adversarial system is used in almost every country that practices common law, although there are exceptions in some instances, especially where the common law cannot be applied. This system has a structure of two sides, one dedicated to the defense, while the other is dedicated to the prosecution. The structure operates in a way that puts the defense against the prosecution, and the side that is able to make the more convincing argument ends up winning the case. This structure is set up in a way that justice is only achieved when the side with the best argument wins, despite the fact that the side that wins may be in the wrong. Therefore, it is the task either of both the defense and the prosecution to convince a judge or in some cases a jury, that they are right. It is for the jury to decide which side has given a more convincing argument, and come up with a verdict (“Adversarial and Inquisitorial Legal Systems”). This is not the case in an inquisitorial system, because the parties involved might feel that they are at the mercy of the judge presiding over the case. Such a situation would make these parties not to be confident in the legal proceedings. They might feel that the judge might not have their best interests at heart when making decisions. Another advantage which the adversarial system has is that it allows both the prosecution and the defense to bring in own experts to give testimony in court. The people who are relied on to provide expert advice on various cases is usually those that have been selected by the court. The adversarial procedure relies largely on the oral evidence given by witnesses from both sides. Both the prosecution and the defense have the right to interview each other’s witnesses in an attempt to ascertain the truth. This is not usually the case in an inquisitorial procedure because a majority of the evidence used is based on the written statements of witnesses. The lack of oral evidence in some cases may be viewed with suspicion because it is not known under what conditions the statements were acquired. Some would suspect that the witnesses were coerced into giving the written statements so that the evidence would be against one party in the proceedings. While in an adversarial system, the judge is not entitled to receive the criminal and other records of the witnesses, this is not the case in an inquisitorial procedure; moreover, in the latter procedure, the judge has access to all the records and character reports of the witnesses. The access to such sensitive information could lead the judge to make a biased decision, based perhaps on the assumption that one of the witnesses is lying because of having a record stating that he did so in the past. On the other hand, the inquisitorial system is a judicial system in which the court is directly responsible for the investigation of cases that have been brought before it, contrary to the adversarial system. The inquisitorial one is partial in the case, and, in fact, the court may decide to take the side of one group as opposed to the other; moreover, the judge who is also the arbitrator, has plays an active role in the proceedings. Unlike in the adversarial system, the judge is not neutral, and in fact has a direct interest in the case proceedings; therefore, the interest that the judge has in the proceedings ensures that both sides involved in the case behave in a manner that is appropriate in court. It ensures that there is no wastage of time, as the opposing sides of the case do not get the opportunity to take advantage of the situation to outmaneuver one another. Since the judge has a direct hand in the proceedings, he or she is in a better position to determine who is in the right and makes a decision based on this. This system is used in countries, which have civil judicial systems, and is rarely used in those with common law. In the latter case, this system is used in summary hearings, where individuals have committed crimes that are deemed minor, such as breaking traffic rules. The application of some aspects of inquisitorial procedure in adversarial cases shows how much more effective the inquisitorial system is. This system is applied where there are questions on criminal procedure and not on the laws that has been put in place to deal with cases. The inquisitorial system determines how the investigation of crimes and trials should be carried out; moreover, it does not have a say in the crimes that are to be referred for prosecution or the sentences, which these crimes carry once a verdict has been reached. There are some cases in the system where a judge may have a direct hand in the investigation; they participate in the process of finding the facts concerning the cases they are handling, and in others, he may question the witnesses. This may happen even in adversarial proceedings, where a judge may see decide to apply the inquisitorial manner so that more facts can be brought to light. The application of the inquisitorial system in adversarial proceedings ensures that a balanced verdict is given; in addition, unlike in the adversarial system, the judge has a direct hand in calling in the witnesses in the case, and getting to interview them to find out the details, which have not been covered by either the prosecution or the defense. This ensures that none of the opposing sides in the case has an unfair advantage over the other, as is sometimes the case in adversarial proceedings. An advantage of the judge getting directly involved in interviewing the witnesses is that it reduces the need for either party, especially the defense, for legal representation. The use of legal representation is always an extremely expensive affair for most defendants, and at times, they are barely able to afford it. The active involvement of the judge in the proceedings assures such people that justice will be carried out fairly, and that there will be no bias towards one side. The procedure followed in an inquisitorial system ensures that the judge controls all the evidence that it brought to court by either party. Consequently, neither party can bring in evidence that has not been approved by the judge, hence reducing the likelihood that false evidence will be presented in court in order to win the case. This is because in this system the court carries out the investigation of cases brought before it, it is the state, and not the parties involved, which bears the cost of investigation. This helps those people, who cannot afford to hire investigators, to confidently come to court because the needed evidence will be available for them to use. As this system tends to rely more on written than oral statements, it can be said to reduce the costs of legal proceedings as well as ensuring that the statements cannot be refuted by the witnesses who made them. This ensures that the statements are not compromised and that a clear picture of what happened is presented in court. Based on the arguments for inquisitional procedure, one would surmise that it is a system, which can be applicable to a wide range of court proceedings that need a swift and efficient end. It gives this system an advantage over the adversarial system because of the fact that in the latter, there tends to be long trials because enough evidence has to be provided to convince the jury. Such situations result in the postponement of cases and this leads to a loss of focus because as time passes, witnesses end up having problems remembering every aspect of the events, which happened to them. It is, therefore, very easy for a judge, or jury, to make the wrong decision due to the reliance on oral testimony. The prolonged procedure of the trial would make it extremely expensive, in legal, for the parties involved and this is despite there being a guarantee that a party might win. Alternatives to going through the court system on either the inquisitor or the adversarial processes include mediation. This is because not all cases get to go through the entire court process, as they are less expensive, informal and are faster than the court process. The alternative dispute resolution does not need the services of a lawyer making it the cheapest option in comparison to the legal process (Cohen 2). Due to the lack of lawyers, the dispute resolution process becomes cheaper, and a mediator takes the place of a judge and lawyers in the legal system. As such, the mediator is an independent or neutral third party who does not have any form of interest in the proceedings, except then resolution of the dispute or conflict at hand. The mediator in resolving the dispute only suggests an amicable solution that is agreeable to all parties involved creating the need for independence. Another form of alternative dispute resolution is the arbitration of disputes, where the parties involved hire an arbitrator, where the said arbitrator is independent and impartial, and listens to the information given by parties and finally makes the decision on the dispute. The final means of alternative dispute resolution is the use of administrative tribunals, which run parallel to the court system. In spite of being parallel to the court system, they are not part of the court system and specialize in hearing disputes about rules and regulations. These are created by statutes focusing on precise areas of the law and are presided over by adjudicators, making the process less formal than a legal court. The downside of applying ADR is that there are cases of deputes between mediators and arbitrators due to shortages of cases that have been annexed from the legal system. As such, there are turf wars between legal representatives or lawyers and professional non-attorney conflict resolvers. Canadian law is turning towards the ADR as seen by the use of tribunals, which run parallel to the legal system. This is thanks to the statutes that allow the presence of specialized tribunals in order to handle matters that can be handled amicably, without the need to engage the legal system. In addition, due to the high cost of the legal system, government institutions are also turning towards the ADR. This allows the legal system to run smoothly and works hand in hand with the administrative tribunals in that decisions by tribunals can be overturned through judicial review. As such, administrative tribunals, a form of ADR, are used in issues of Canadian human rights, labor and employment standards. Turning to this method, speed of dispute resolution is improved as the parties in conflict move only as fast as they want the dispute to be resolved. The control is also in the hands of the parties that are caught in the dispute in question meaning that the parties control even the length of the resolution. In addition, the confidentiality of the cases in question is assured as the legal system can ask for privacy of the case only under exceptional circumstances. Finally, another alternative is the restorative justice, which is a form of justice that views offence as any form of harm or injustice perpetrated against another individual, but not as an issue of an individual violating the law. This form of justice seeks to determine appropriate responses to criminal behavior and offer reparation for the damage done by one’s actions (Howard). As such, those that do wrong play an active role in the resolution of disputes and crimes between the offender and the harmed. In Canada, restorative justice is changing the legal system by creating comprehensive restorative programs in an attempt to create an opportunity to given offenders in order for them to receive trust and acceptance with the people they have harmed in society. Restorative justice is tailored to meet the needs of those that harm others in an attempt to bring reconciliation with the society. Offenders are recommended by those in authority such as lawyers, judges, community corrections officers and others, who select offenders that are most likely to be reformed by the process of restorative justice (“What is Restorative Justice?”). The justice system is changing towards the restorative justice by creating programs as stated above to cater for all the needs of those who have been offended and those that have offended. The programs save cost as opposed to retributive justice that only punishes the individual and does not allow for reconciliation with the society. However, there are challenges to the implementation of restorative justice as there is opposition calling for the traditional retributive justice. This is due to the unguaranteed intention in the use of restorative justice because of its cheap nature. Restorative justice, however, has mass support from influential people such as judges and politicians as it rehabilitates and reintegrates offenders, as well as inculcates restorative ideals within the offenders. Works Cited Ringnalda, Allard. Inquisitorial or adversarial? The role of the Scottish prosecutor and special defences. Utrecht Law Review. 2010. Web. 30 November 2012. “Adversarial and Inquisitorial Legal Systems”. The Court Folder. 1995. Web. 30 November 2012. Cohen, Michael. Alternative Dispute Resolution. EuroExpert Symposium. 2003. Web. Web. 30 November 2012. “What is Restorative Justice?”. Prison Fellowship International. 2008. Web. 30 November 2012. Howard, John. Restorative Justice. 1997. Web. 30 November 2012. Read More