Discuss the differences between the adversarial and inquisitorial systems. Be sure to give examples of model countries that use each system and also discuss criticisms of both systems.
Required Textbooks & Supplementary Materials
Comparative Criminal Justice Systems 5th Edition
by: Harry R. Dammer and Jay S. Albanese
Discussion Board Postings: Each week there will be a required discussion board posting made by the instructor. Each student is to respond to the initial response from the instructor by the Thursday evening after which the posting becomes available. Each student will respond to a minimum of two (2) of your fellow classmates’ postings. The responses will have no word limit but must contain substantive content that would move a discussion forward. Comments that merely agree or compliment their fellow classmates’ postings will not receive credit. These postings will be graded on the basis of how well the student addresses both the professor’s and fellow students’ responses. A good rule of thumb would be that the initial response would be approximately 250 words and responses to your fellow classmates will be between 150 to 200 words (but can certainly be more than this amount).
Required Discussion Four: Adversarial Versus Inquisitorial Systems
Discuss the differences between the adversarial and inquisitorial systems. Be sure to give examples of model countries that use each system and also discuss criticisms of both systems.
Respond To: Miesha Walker
The role of public prosecutors may differ depending on the legal tradition adopted in a particular country. Two types of legal traditions dominate the nature of investigation and adjudication around the world: adversarial and inquisitorial legal systems. Common law countries use an adversarial system to determine facts in the adjudication process. The prosecution and defense compete against each other, and the judge serves as a referee to ensure fairness to the accused, and that the legal rules criminal procedure followed. The adversarial system assumes that the best way to get to the truth of a matter is through a competitive process to determine the facts and application of the law accurately. One criticism of the adversary system is that it is slow and cumbersome. The judge, acting as a neutral fact finder, can do little to accelerate a trial, and procedural and evidentiary rules further slow the process. Likewise, the wide availability of appellate review means that a final determination can take years.
The inquisitorial system is associated with civil law legal systems, and it has existed for many centuries. It is characterized by extensive pre-trial investigation and interrogations with the objective to avoid bringing an innocent person to trial. The inquisitorial process can be described as an official inquiry to ascertain the truth, whereas the adversarial system uses a competitive process between prosecution and defense to determine the facts. The inquisitorial process grants more power to the judge who oversees the process, whereas the judge in the adversarial system serves more as an arbiter between claims of the prosecution and defense (Dammer and Albanese, 2014; Reichel, 2017). Critics argue that the inquisitorial system places too much unchecked power in the examining magistrate and judge, who both investigate and adjudicate (legally determine) the case.
Both these systems have variations around the world, as different countries have modified their criminal procedure in various ways over the years in balancing the interests of the State in apprehending and adjudicating offenders with the interests of individual citizens who may be caught up in the legal process. As this Module will show, these different legal traditions impact the ways in which criminal cases are investigated and prosecuted.
Respond to: Clayton Kloehn
There are 3 primary types of Criminal Procedure; Adversarial, Inquisitorial, and Popular or Mixed System. Adversarial Systems are aligned to countries with Common Law infrastructure, such as England and the United States. Inquisitorial systems are common with countries established on Civil Law systems, such as France and Italy. Each of these systems has arguments for and against and they are truly very different approaches to criminal justice.
Adversarial Systems are the legal procedures utilized in Common Law systems. It is a system that is competitive in nature, where a prosecution will argue a case against a defense. The Judge presides over the case, but the final decision is determined by the jury. The assumption of this systems is that when presented with all of the facts, the truth will be evident. In this system, the accused if afforded an advantage over the government. They are presumed innocent until proven guilty, and are afford specific rights that level the field with the government and all of its resources. A majority of cases in this type of system will be bargained before a trial. Critics of Adversarial systems fear that the system is easily manipulated and that clearly guilt criminals can pay their way out of trouble.
Inquisitorial systems are generally tied to countries with civil law systems. It is often characterized by critics as the system where you are guilty until proven innocent. Unlike the adversarial system, the investigation of facts is done prior to a trial and is closely monitored by the presiding judge. Though the trials are fewer and the conviction rate is higher, the system strives to ensure that citizens are not wrongfully accused. In an Inquisitorial system, a trial is more of a confirmation of the facts established during the pre-trial investigation. Critics would argue against the sometimes long pre-trial detention periods and the ability of the Judge to be partial, when they have been such a large part of the investigation.
