Theoretically, there is no longer any system in this world that is purely adversarial or purely inquisitorial. These legal systems have already evolved in an effort by the countries to improve their own criminal justice system. But for purposes of academic discussion, there are several known distinctions between the two legal systems.
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The Adversarial System which is the method used in the United States presumes that the truth can only be found if the litigants, the prosecution, and the defense, are in competition with each other. This system sees the court as a battlefield with either party seeking to be a victor. The prosecution aims to prove that the accused is guilty of the crime charged. They present documentary evidence and the eyewitnesses to prove that their claim is the truth. They also advance arguments and interpret laws in accordance with their interest. On the other hand, the accused does not have to prove anything at the initial stage of the trial because he has a constitutional presumption of innocence.
The Adversarial system believes that the responsibility for finding the truth should lie with the litigants, not to the judge. Thus, injury trials, the judge has a more limited role than in cases where there are no juries where the judge takes on a more active role. The role of the neutral and passive judge is only to ensure that the procedural rules are observed by excluding any irrelevant and improper evidence and ruling on objections and motions of the litigants. This system hopes that with its unique system of presenting evidence, direct examinations, cross-examinations, re-direct and re-cross-examinations, they could arrive at the truth.
On the other hand, the inquisitorial system, which was first developed by the Catholic Church during the medieval period, places the responsibility for ascertaining the truth in a legal controversy solely upon an impartial judge. The judge or the magistrate acts as the lead investigator who heads the investigation by the gathering of the facts, questioning the witness and the suspect and collecting the pieces of evidence. Unlike in the Adversarial System, the judge is not a passive recipient of information.He has a more active role as he supervises the gathering of evidence.
The role of the litigants and their representatives is very limited as their primary role is simply to assist the judge in ascertaining the truth. Although the lawyers of the litigants have an opportunity to conduct their questioning during the trial, this opportunity to conduct their direct examinations and cross examinations is very limited.
- The Inquisitorial System. (2007) Retrieved 22 September 2007
The Inquisitorial and Adversarial Systems of Justice
568 WordsJan 28th, 20182 Pages
The common law system was brought over to Australia in the year 1788. The courts of Equity were developed due to the common law courts are ‘unjust’. These courts introduced fairness into our common law system.
The Inquisitorial and Adversarial systems are systems used to serve justice to the community. Both systems have the same jobs of determining if the accused is guilty or innocent but have different ways of concluding to the truth.
In the inquisitorial system the judge is the central evidence gatherer and directs the trial to get to the truth, he then questions the witness and examines evidence of a case in private and comes to a decision. The judge plays the detective law and fact finder role that looks into facts and evidence. No burden of proof is necessary and no jury is used in the inquisitorial system instead a panel of judges to decide on a case. This is better than having a jury because they are qualified and experienced in this field. The jury may not have legal background knowledge and wouldn’t be able to make the right decision as the other panel of judges would. The Inquisitorial system is much faster, more efficient and also a less expensive process than the adversarial system.
The ACT Legal Aid Commission has suggested that Australia's legal system adopt aspects of the European "inquisitorial'' court process and…