A comparison essay between the Adversary System and the Inquisitorial system:
The adversary system is a method of trial that has been adopted by the UK, Australia and New Zealand. Under this system, two parties are vying to win a case before an impartial third party based on the presentation of facts and evidence. This process is framed by a set of strict rules which are upheld to ensure fairness and equality. In saying that, there are other methods of trial that exists in countries such as France and Germany. This system is known as the inquisitorial system and both will be compared below.
A similar feature that is shared by both the adversary and inquisitorial system is that both methods rely on an impartial third party presiding over the case. This means that in both systems, the judge cannot show preference or bias towards any party. They must be independent and impartial to ensure that their decision making ability is not impacted by prejudice. When a jury is used, this also applies. Another similarity shared between both methods is the rules that bind submission of evidence. In the adversary system, certain evidence is deemed inadmissible such as hearsay, prior convictions, privileged information and evidence that has not be legally obtained such as those that require search warrants. In the inquisitorial system, a similar set of restrictions apply although not as harshly. Here, prior convictions are allowed however evidence that has been illegally obtained is still considered inadmissible which suggests that under both systems, the way in which evidence is obtained should not override certain individual right such as privacy.
Despite these similarities, the adversary system and the inquisitorial system are essentially different. One key difference can be seen within the feature of the role of the judge. In the adversary system, one judge presides of the trial. Here, the role of the judge is considered passive and is there to perform the role similar to that of a referee in a sports game. The judge, although being one of the most experienced legal professionals within the room cannot assist parties or participate in the gathering of evidence. The judge must be impartial and ensure that rules of evidence and procedure are met by both sides. They are not responsible for the questioning of witnesses. They can empanel and instruct the jury on matters of law and if there is no jury present, the judge can make a decision based on facts presented.
On the other hand, a trial within the inquisitorial system is generally presided over by 3 judges with a central judge holding most jurisdiction. Prior to a trial, it is the active role of the judge to put together a case based on the offence in which the accused has been charged. The judge gathers the evidence, determines the legal arguments, the issues to be determined and reads written testimony from witnesses. Due to this ability, the judges in the inquisitorial system are considered more active in their approach however, in saying that, this may make it difficult for them to be impartial.
Another key difference is the feature of legal representation. In the adversary system, legal representation is required and highly recommended due to the extensive pre-trial procedures required even prior to getting to trial. During trial, parties must adhere to strict rules of procedure and must follow the guidelines of evidence submission. This requires the expertise and knowledge of a trained professional and as parties are responsible for the presentation of their own case, it is often suggested that the party that has the ability to afford the better experienced and skilled legal professional has the best chance of winning a case. On the other hand, due to the nature of the inquisitorial system, legal representation although necessary in some countries (such as Germany), the relevance may not be as high. This is because the judges are primarily responsible for the organisation and presentation of the case against the accused. The position of legal presentation is there to assist the judges in their decision making and deliberation rather than to present and wholly argue a case.
Overall, it can be seen that there are different methods of trial that exists. It can be fair to say that both systems, aim to provide justice and seek the truth despite going about them in distinctive ways.
The adversary system is a method of trial that has been adopted by the UK, Australia and New Zealand. Under this system, two parties are vying to win a case before an impartial third party based on the presentation of facts and evidence. This process is framed by a set of strict rules which are upheld to ensure fairness and equality. In saying that, there are other methods of trial that exists in countries such as France and Germany. This system is known as the inquisitorial system and both will be compared below.
A similar feature that is shared by both the adversary and inquisitorial system is that both methods rely on an impartial third party presiding over the case. This means that in both systems, the judge cannot show preference or bias towards any party. They must be independent and impartial to ensure that their decision making ability is not impacted by prejudice. When a jury is used, this also applies. Another similarity shared between both methods is the rules that bind submission of evidence. In the adversary system, certain evidence is deemed inadmissible such as hearsay, prior convictions, privileged information and evidence that has not be legally obtained such as those that require search warrants. In the inquisitorial system, a similar set of restrictions apply although not as harshly. Here, prior convictions are allowed however evidence that has been illegally obtained is still considered inadmissible which suggests that under both systems, the way in which evidence is obtained should not override certain individual right such as privacy.
Despite these similarities, the adversary system and the inquisitorial system are essentially different. One key difference can be seen within the feature of the role of the judge. In the adversary system, one judge presides of the trial. Here, the role of the judge is considered passive and is there to perform the role similar to that of a referee in a sports game. The judge, although being one of the most experienced legal professionals within the room cannot assist parties or participate in the gathering of evidence. The judge must be impartial and ensure that rules of evidence and procedure are met by both sides. They are not responsible for the questioning of witnesses. They can empanel and instruct the jury on matters of law and if there is no jury present, the judge can make a decision based on facts presented.
On the other hand, a trial within the inquisitorial system is generally presided over by 3 judges with a central judge holding most jurisdiction. Prior to a trial, it is the active role of the judge to put together a case based on the offence in which the accused has been charged. The judge gathers the evidence, determines the legal arguments, the issues to be determined and reads written testimony from witnesses. Due to this ability, the judges in the inquisitorial system are considered more active in their approach however, in saying that, this may make it difficult for them to be impartial.
Another key difference is the feature of legal representation. In the adversary system, legal representation is required and highly recommended due to the extensive pre-trial procedures required even prior to getting to trial. During trial, parties must adhere to strict rules of procedure and must follow the guidelines of evidence submission. This requires the expertise and knowledge of a trained professional and as parties are responsible for the presentation of their own case, it is often suggested that the party that has the ability to afford the better experienced and skilled legal professional has the best chance of winning a case. On the other hand, due to the nature of the inquisitorial system, legal representation although necessary in some countries (such as Germany), the relevance may not be as high. This is because the judges are primarily responsible for the organisation and presentation of the case against the accused. The position of legal presentation is there to assist the judges in their decision making and deliberation rather than to present and wholly argue a case.
Overall, it can be seen that there are different methods of trial that exists. It can be fair to say that both systems, aim to provide justice and seek the truth despite going about them in distinctive ways.