In situations where outcome or decision control is ceded to a legitimate decision-maker, the available legal procedure may be judged according to whether it provides adequate 'voice' for the aggrieved, adequate process control, and/or the satisfaction of being respected and afforded an appropriate level of procedural justice as a litigant, defendant or citizen.
In any event, continued dialogue between lawyers and psychologists from both types of system is encouraging. To this end, van Koppen and Penrod (2003) have collected legal psychological analyses of American and European criminal justice procedure together in a recent volume allowing comparisons between adversarial and inquisitorial mentalities.(n10) If this type of work continues, we may better understand when each type of process works best and when people, be they socialised in Australia, America, England or continental Europe, react best to adversarial or inquisitorial systems of legal decision-making in particular contexts.
In many jurisdictions, the approaches of each system are often formal differences in the way cases are reviewed. It is questionable that the results would be different if cases were conducted under the differing approaches; in fact no statistics exist that can show that these systems do not come to the same result. However, these approaches are often a matter of national pride and there are opinions amongst jurists about the merits of the differing approaches and their drawbacks as well.
Proponents of the adversarial system often argue that the system is fairer and less prone to abuse than the inquisitional approach, because it allows less room for the state to be biased against the defendant. It also allows most private litigants to settle their disputes in an amicable manner through discovery and pre-trial settlements in which non-contested facts are agreed upon and not dealt with during the trial process.
In addition, adversarial procedure defenders argue that the inquisitorial court systems are overly institutionalized and removed from the average citizen. The common law trial lawyer has many opportunities to uncover the truth in a laboratory called the courtroom. Most cases that go to trial are carefully prepared through a discovery process that aids in the review of evidence and testimony before it is presented to judge or jury. The lawyers involved have a very good idea of the scope of agreement and disagreement of the issues to present at trial, which develops much in the same way as the role of investigative judges. It has also been argued that a trial by a jury of one's peers may be more impartial than any government paid inquisitor and a panel of his peers. In the United States, the right to a trial by a jury of one's peers who are common citizens is guaranteed by the United States Constitution.
Proponents of inquisitorial justice dispute these points. They point out that most cases in adversarial systems are actually resolved by plea bargain and settlement. Most legal cases in these systems do not go to trial; this can lead to great injustice when the defendant has an unskilled or overworked attorney, which is likely to be the case when the defendant is poor. In addition, proponents of inquisitorial systems argue that the plea bargain system causes the participants within the system to act in perverse ways, in that it encourages the prosecution to bring charges far in excess of what is warranted and the defense to plead guilty even when they believe that they are not. Furthermore, proponents of inquisitorial systems also argue that the power of the judge is limited by the use of lay assessors and that a panel of judges may not necessarily be more biased than a jury.
Furthermore, some countries with an inquisitorial system do use jury trials for some categories of crime. Interestingly, some countries such as Japan, which have a right to jury trial, rarely use them, as there is a popular belief that any defendant who requests a jury trial has a case that is so weak that they are willing to risk pleading their case before strangers rather than professional judges. Hence, jurors in those countries are very unsympathetic toward defendants.
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Bronitt, Simon; Mares, Henry. 2004. The history and theory of the Adversarial and Inquisitorial systems of law. (cover story). Legaldate (3): 1-3.
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Nolan, Mark. 2004. The Adversarial mentality vs. The Inquisitorial mentality. Legaldate 16 (3): 7.
Thibaut, J. And L. Walker. 1997. Procedural Justice: A Psychological Analysis. Hillsdale: Lawrence Erlbaum,
Van Koppen, P.J. And S.D. Penrod (eds). 2003. Adversarial vs. Inquisitorial…