Global Criminology: Similarities and Differences Between Adversarial and Inquisitorial Justice Systems Similarities and Differences between Adversarial and Inquisitorial Justice Systems: Global Criminology

Every country uses fundamental rules and procedures to ensure fairness and justice in its legal system. The effectiveness of any legal system is assessed based on how well it facilitates truth-finding, efficiency, and fairness. This text assesses the effectiveness of adversarial and inquisitorial justice systems to determine which one would be more effective in fighting global crime.

Similarities and Differences between Adversarial and Inquisitorial justice systems

Every country uses fundamental rules and procedures to ensure fairness and justice in its legal system. Based on these rules, a country can be termed as either adversarial or inquisitorial. Experts have given diverse views on the effectiveness of either system in achieving the aims of a country's legal traditions. This insight is crucial for the interpretation of the Constitution, as well as for purposes of law reform. This proposal complements existing studies by analyzing the differences and similarities between adversarial and inquisitorial justice systems. It examines the legal procedures in three adversarial countries vis-a-vis three inquisitorial countries with the aim of determining how either system facilitates or impedes on the realization of legal traditions. The researcher believes that a careful look and research into the differences and similarities of the two justice systems will help identify the pros and cons of either system, and will provide some crucial exposure on how the issue of global crime could be addressed.

Before embarking on the main discussion, it would be prudent to provide brief definitions of inquisitorial and adversarial justice systems.

The inquisitorial system: this is a procedure of legal practice, where the judge endeavors to discover facts and at the same time represent the state's interest in a trial (Ambos, 2003). The judge is not just a passive recipient of information. He plays an active role in the interrogation of witnesses, and in the evidence-gathering process (Ambos, 2003). This system is prominent in common law countries, including Germany, Peru, Chile, France, Belgium, and Russia.

The adversarial system: a method of legal practice, where parties to a controversy gather and submit evidence, call and question witnesses, and present their arguments before an impartial fact finder, usually a judge or jury, who remains passive and neutral throughout the proceedings (Ambos, 2003). The judge's only role is to weigh facts and give the verdict. He is not directly involved in the questioning of witnesses and presentation of evidence; and the entire process is framed by strict rules designed to ensure equality and fairness (Ambos, 2003). This system is prevalent in civil law countries, including the U.S., Canada, New Zealand, Australia, and the UK.

Similarities between the Adversarial and Inquisitorial Systems

A similar feature shared by both the inquisitorial and adversarial systems is that both methods rely on an impartial fact-finder to preside over the case and give a verdict. The judge is not allowed to show bias or prejudice towards any party; they are supposed to remain independent and impartial (Dammer, Fairchild & Albanese, 2006). This is meant to protect the defendant from self-incrimination, and ensure that they receive a fair trial.

Another feature shared by both systems is the rules of evidence admission (McKillop, 2003). In the adversarial regime, certain evidence such as privileged information, prior convictions, hearsay, and evidence obtained by way of illegal search warrants, is deemed inadmissible (McKillop, 2003; Ambos, 2003). Similar restrictions apply in the inquisitorial regime, though not as harshly (Ambos, 2003). For instance, prior convictions are allowed though evidence obtained through illegal means is still inadmissible (Dammer et al., 2006). This implies that in both systems, activities of obtaining evidence should not override individuals' fundamental rights, such as the right to privacy.

Differences between the Adversarial and Inquisitorial Systems

Despite the similarities outlined in the preceding section, the inquisitorial and adversary systems of justice are essentially different. The first difference between the two systems lies in their use of case law and judicial precedent. In inquisitorial systems, there is little use of case law (judicial precedent), which means that judges have the liberty to decide cases independently of previous decisions. Judges, therefore, tend to rely more on codes of law or statutes than on case law. In adversarial systems, on the other hand, decisions made previously by higher courts are binding on lower courts (New Zealand Ministry of Justice, 2016).

The two systems also differ in terms of the parties...

In the inquisitorial regime, criminal proceedings are divided into three phases: the investigative, examining and trial phases. Evidence is collected by the presiding judge. In some cases, the judge oversees the investigative phase of the proceedings. They give instructions on how priorities are to be set, and how cases are to be handled (New Zealand Ministry of Justice, 2016). This is significantly different from the adversarial system, where investigations are conducted, and evidence collected by the parties in contest, that is the police and the defense (New Zealand Ministry of Justice, 2016).
A third area of difference between the two systems is the manner in which trials are conducted. In inquisitorial systems, the trial judge plays an active role in the interrogation of witnesses (New Zealand Ministry of Justice, 2016). He directs debate in the courtroom and makes a final decision. The defense counsel plays a secondary role, only adding crucial details to information presented by the trial judge. This is different from the adversarial system, where the trial judge acts more like a referee during proceedings. He is a passive recipient of information. In this case, the defense counsel is responsible for examining and cross-examining witnesses, as well as introducing evidence (New Zealand Ministry of Justice, 2016). The decision made, therefore, depends largely on the competence and skill of the defense counsel.

The two systems also differ in the rules governing evidence admissibility. In inquisitorial systems, rules of evidence are generally more lenient. Since juries are not used often, formal rules of evidence are not very stringent; the admissibility of evidence relies on whether or not the judge deems such evidence relevant (New Zealand Ministry of Justice, 2016). In Germany, Belgium, and France, the hearsay rule does not apply; the judge determines the value of such testimony (New Zealand Ministry of Justice, 2016). In adversarial systems, however, evidence which is of little probative value, or which is prejudicial is more likely to be withheld from juries. Hearsay evidence can, however, be allowed if it is deemed reliable (New Zealand Ministry of Justice, 2016).

Criteria for Assessing the Effectiveness of Justice Systems

There are different ways of assessing the effectiveness of a justice system. This proposal assesses the effectiveness of adversarial and inquisitorial systems based on how well they align with legal traditions. In his article titled, 'the Criminal Justice System in Jeopardy', K van Dijkhorst (1998) outlines the three fundamental aims of any legal system: i) to perform truth-finding, with the outcome being the acquittal of the innocent and conviction of the guilty; ii) to perform truth-finding in a manner that is fair and protective of the rights of both the accused and the society; and iii) to accomplish the two preceding objectives in an effective and efficient manner. In the author's words, the legal system's aim is "to arrive at the truth expeditiously and fairly" (Dijkhorst, 1998, p. 138). The subsequent sections use this criteria to assess the effectiveness of the two systems of justice above.

The Adversarial Justice System

The countries selected for analysis in this case are Australia, South Africa, and New Zealand.

Truth-finding: the logic of the adversary process is that fairness and justice are achieved if parties are allowed an opportunity to be defended in the courtroom by counsel knowledgeable in matters of law (Ambos, 2003). For this reason, defendants are accorded the right to counsel, and the defense attorney is given an opportunity to develop a case, and examine and cross-examine witnesses to prove the defendant's innocence. Judges and jurors are required to make their decision and establish the truth based on the facts raised by counsel. This is the objective of truth-finding. However, this truth-finding may be defeated if the parties to the controversy are not equal (South African Law Commission, 2002). When an accused is unable to engage adequately in the process because they are not properly-represented, the truth may not emerge (South African Law Commission, 2002). This could occur if counsel is inexperienced or poor (South African Law Commission, 2002). The partisan approach to evidence-production beats the truth-finding objective. The case of S vs. Siebert in South Africa offers a perfect example -- owing to his inexperience, incompetence, and lack of experience, the defense attorney failed to adequately inform the trial court of the accused circumstances for the purposes of sentencing (South African Law Commission, 2002). Giving his verdict, the judge mentioned that the defense counsel appeared not to be fully knowledgeable about the correctional supervision sentence (South African Law Commission, 2002).

Fairness: an accused right to a fair trial is often embedded in the Bill of Rights. The justice system is required to…