Inquisitorial vs. Adversarial Legal Systems: A Comprehensive Analysis

An inquisitorial system is defined as a legal system where the court or a part of the court is pro-actively involved in ascertaining the facts of the case. The inquisitorial system mainly applies to questions of criminal procedure as opposed to questions of substantive law; that is, it measures how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is already used in many, but not all civil legal systems.

Some Jurists do not accept this division and advocate the theory that the procedue and substantive law are interrelated as a part of the theory of justice, which might varily apply according to various legal cultures. The most important nature of this method lies in the fact that the adjudication body has control over the way in which evidence is gathered and presented. The inquisitorial process is characterized by a continuing investigation conducted initially by police and then more extensively by an impartial examining magistrate.

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This system assumes that an accurate verdict is most likely to arise from a careful and exhaustive investigation. The examining magistrate serves as the lead investigator or inquisitor who directs the fact-gathering process by questioning witnesses, interrogating the suspect, and collecting other evidence. The attorneys for the prosecution (the accuser) and defense (the accused) play a limited role in offering legal arguments and interpretations that they believe the court should give to the facts that are discovered.

All parties, including the accused, are expected (but not required) to cooperate in the investigation by answering the magistrate's questions and supplying relevant evidence.

Even in civil litigation inquisitorial method is much appreciated as well, in many cases the ordinary court and the tribunals have stressed that the principles of the natural cannot apply in the same way to inquisitorial proceeding as they do to adversarial proceedings of the civil litigation. The principle of Natural justice was set aside in the case of Ex p. Moore5.

In this case the Court of appeal dismissed the plea by appellant that the tribunal acted against the principle of the natural justice, which require a fair hearing, Lord Justice drew the attention to the inevitable inquisitorial nature of the tribunal. In civil matters there is legal Maxim Res Tpsa Loquitur which mean "Matter speaks for it self" in that kind of case the adversary nature of a trial system would diminish and the inquisitorial system would prevail, e. g. if the steering wheel of your brand new car comes off in your lap it signifies that the manufacturer was negligent and the presumption will5R. v. Deputy industrial Injury Commision Ex Parte Moore[1965] Q. B. 456 that being a man of ordinary prudence you don't know about manufacturing process as well as it is hard to prove for one party the negligence of other party where as the matter it self has revealed the facts so the court adopting the inquisitorial approach can decide the case . Critical Comparison: The trial method in common law is described as 'adversary' or 'accusatorial' system as opposite to the trial system being followed in the continent know as inquisitorial legal system.

The most important extract of the difference and distinction between these two different kinds of trial systems is based upon the extent of involvement of courts, legal representatives and parties to a particular case. If one can easily understand this element of division which is providing the clear cut line of demarcation, (although very thin) in two trial systems then it is very easy to comprehend the essence of adversarial and inquisitorial trial systems.

In continental inquisitorial system the predominant part is played by a court, where as in adversarial system, it is performed by parties. In adversarial trial system the judge plays character of a referee who silently observes the situation as it unfold before him, he is supposed to listen both parties with out any bias to any party, it is up to parties to decide what witnesses to call and what will be the order, the parties examine and cross examine the witnesses.

If at any point both the parties agree not to call a witness who has potentially relevant evidence, the court will not do any thing in this respect because parties did this with their mutual consent. In adversary system the onus of preparing and presenting the case lies on parties, which mean that a party with out adequate legal representation has already certain detriments attached to it, which is not the case in inquisitorial system because there is some one sitting in the court (judge) that is controlling and carefully examining the fair play.

The judge will call the witnesses and examines them while the advocates merely play an auxiliary and subsidiary role. There is a myth about the inquisitorial system that they have no parallels of the common law presumption of innocence in a criminal cases, which is not the case, the presumption of innocence is taken very seriously in inquisitorial system and it does allow the accused to plead guilty regardless of his own disposition and even if he signed a document of confession, the case must be decided on grounds of merit and proved by evidence.

In common law system a confession is sufficient to prove guilt. There are different varieties in inquisitorial systems i. e. France has juries in the trials but Dutch and German have not. The jury trial of inquisitorial system is different than in adversarial system. The selection, functions and the time span they spend during a trial differs than in adversarial system. Another important distinctive feature between these two trail systems is the previous history of the accused's medical and social conditions.

Before I can further move on and discuss the above point of antecedents of an accused taken in consideration in continental system, I would like to throw some light on how the trial commences in an inquisitorial system. As through out this comparison I have been focusing on criminal case that's why I would confine my self to only criminal case once again, same principles are applied to civil case as well. In criminal cases in continental inquisitorial system a dossier is prepared by an examining magistrate which is called le juged'instructuion (France), in Italy it is known as the giudice istruttore.

The purpose of this document (dossier) is to make the court fully conversant with fact of the case, which contains the pre-trial investigation, the dossier is ready before the trial commences formally by a presiding judge who uses it on his disposal to call and question the witnesses. The accused himself is dragged into the process of making this dossier and as result of that the accused can be held in custody for exhausting length of time.

The detention with out is not regard as the prerequisites of a trial in the inquisitorial system but the system itself assumes that it will quite handy for juged'instructuion to have suspect available whenever he needs. The examining magistrate (juged'instructuion) see the witnesses and record their statements. In France there are three tiers of criminal offences: 1: Gravity -crimes, with the punishment of five years or more. 2: delits, with the imprisonment of two months or more. 3: contraventions, with minor summary trials cases.

The juged'instructuion is operative in all gravity crimes and delits, the decision that in which cases the juged'instructuion can jump into is left with prosecutor, the behind this exercise of power is depending upon the nature of case. In certain case the prosecutor has absolute powers to investigate and involve the police with out the prior authority of the juged'instructuion. There are benefits and detriments attached with this system as there is always a case with each and every kind of legal system.

If the juged'instructuion performing his legal powers they are impressive as well as alarming. The influence and control over police investigation is one of the paramount features of this system besides this there has been cases where the abuse of power was witnessed. One of the criticisms of particular system is that details of the investigation are leaked to press by juged'instructuion which causes the pre-trial publication of details of a case which is considered as grossly prejudicial towards chances of fair trial.

Continental system has lenient views as compared to adversary system about the prejudice and bias of judicial proceedings because of press publications, the reason is that continental system don't rely on lay man's jury, on the other hand the common law selects jury through random picks from electoral list. Due to the controversial exercise of the powers and certain abuses in the system by juged'instructuion many continental states have completely got rid of that system which has been replaced by grave and radical reforms in the criminal justice system.

This big change is not only limited to one aspect of the inquisitorial system but the interesting factor is derogation and lack of confidence showed by the continental countries in their own legal system and this departure from inquisitorial method has resulted in arrival to adversary method6. Another feature of the inquisitorial system is that it is considered that accused has access to legal advice or a lawyer at all time but in many continental system this right is available only in Gravity -crimes or serious case and does not apply to earliest crucial stages of the investigation.

As result of that in some case the accused end up in custody for 48 hours. Where as the common law provides right to access to solicitor from the very beginning of accused's detention. In order to complete this jigsaw puzzle I will go back to the above point of antecedents of the accused as this cover evidential process as well, continental inquisitorial system gives great importance to the history of the accused which also includes any criminal convictions or record in the past forming body of the dossier presented in the evidence from the outset of the trial.

This is one of the detriments of the inquisitorial system that the presiding judge is cast with a filthy picture of the accused which eventually may lead to desired out come by prosecution. The continental system has procedure where the victim can play a role at the pre trial and trial stage. The victim is allowed to join criminal proceedings as le parti civile . The adversary legal system has also adopted this principle and English system allows that a compensation award can be granted by criminal court on top of penalty in the shape of fine or other proper sentence.

Adversary system does not give any recognized status to victim, he has no right of audience on subject of either guilt or of sentence. In the above discussion I had tries to engulf mostly all the aspects of both legal systems, this comparison may be, was not in proper order but still it gives a picture of two different legal systems. In order to understand the merits or detriments of continental inquisitorial system in English law, it is most important to find out the advantage and disadvantages of each trial system separately, once these elements are on the surface then it is much easier to find the answer of above mentioned question.

Discussion as to which is better than the other almost invariably focus on one single point of each system, rather than on a balanced appraisal of the system as a whole. The effect of the merits and demerits of each system on the quality of the administration of the justice is hard to find. So in that sense it is material that which system is good and which one bad, there is not even a single pure adversary or inquisitorial system in this world, both of them have been transformed. Every thing brings with it evils if its own, bearing in mind the evils only one can not leave fruits of it.