Adversarial and Inquisitorial Systems in General

The two leading legal traditions considered in this thesis are the common law or Anglo-American and civil law, Romano-Germanic or European Continental law. The civil law tradition is the oldest and prevailing legal tradition worldwide.226 _In

turn, the common law tradition, original from England, is now present in countries like the United States, Canada and Australia. Whereas the adversarial system is also named as the common law or Anglo-American system, the inquisitorial system is also referred to as the continental European system.227 _To

be more accurate, however, it should be noticed that the ‘adversarial’ and ‘inquisitorial’ terms refer to the procedural features of the (criminal justice) system and are not necessarily related to their historical origins. Damaška describes the adversarial system as ‘a mode of proceedings [that] takes its shape from a contest or dispute: it unfolds as an engagement of two adversaries before a relatively passive decision maker whose principal duty is to reach a verdict’.228

In turn, Damaška presents the gist of a non-adversarial system as ‘an official inquiry’.229 _{However, Damaška himself acknowledges that the classification of a}

national system as inquisitorial or adversarial is difficult as ‘criteria remain uncertain for the inclusion of specific features into the adversarial and the inquisitorial types’.230 _{Moreover, adversarial features have been adopted}

225 _{For a further discussion, see Carlos Fernández de Casadevante Romani, International Law of} Victims (Springer 2012) 133- 243.

226 _{John Merryman, The Civil Law Tradition: An Introduction to the Legal System of Western} Europe and Latin America (2nd ed., Stanford University Press 1985) 1-3.

227 _{G. F. Cole, S. J. Frankowski, and M. G. Gertz, Major Criminal Justice Systems: A Comparative} Survey (2nd edn., Sage 1987) 23-26.

228 _{Damaška (1986) 3.} 229 _{Ibid., Loc. cit.} 230 _{Ibid., 4.}

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positively by inquisitorial systems and vice-versa.231 _{It is clear that a purely}

adversarial or inquisitorial system does not exist and, accordingly, references to a particular national system as either adversarial or inquisitorial must be understood as predominantly adversarial or inquisitorial. A very brief presentation of the main features of both systems follows which, where relevant, is discussed in a larger detail in other sections of this thesis when examining the English, American and French criminal justice systems.

As for the role of the judge, in an adversarial system, this plays a function similar to a referee deciding on mainly procedural issues brought up by the parties and is passive in the search for truth. This general idea has to be nuanced as the judges may call and examine witnesses as evidenced in England and Wales,232 _{and the United States.}233 _{In any case, the (relatively) passive role}

played by the judges matches the active role by the parties, the assumption that the tension between two equally armed parties will lead to the truth,234 _{and the}

role assumed by lay-men jury as fact-finders. In the inquisitorial system, professional judges are active in seeking for the truth.235 _{Thus, (s)he can}

interrogate the accused and witnesses as well as order the production of evidence and remains in control of the proceedings. The access to the dossier, i.e., a report of the pre-trial investigations prepared by the prosecutor or the pre-trial judge and unknown in the adversarial system, by not only the parties but also the judge, enables the latter to control the trial proceedings. Unlike the adversarial system, the judges normally play an important role during pre-trial under the inquisitorial model. For instance, the French juge d’instruction (investigating judge), who decides whether the evidence collected is enough for trial. It is important to note that while the defendant in the adversarial system is in

231 _{Orie (2002) 1441.}

232 _{See, e.g., United States Federal Rules of Evidence, as for United States, rule 614; People v.} Santana (2000) 80 Cal. App. 4th 1194 (a state court case where the trial judge actively questioned witnesses about substantive factual issues in dispute at trial).

233 _{See English case law (see Blackstone’s Criminal Practice (1996) 1317: ‘the power should be} sparingly exercised’.). Cited by Orie (2002) 1443, footnote 10. In England, this power may be especially exercised to protect the interests of the defendant. See R. v. Wellingborough JJ. ex p. Francois (1994) 158 JP 813 and R. v. Haringey Justices, ex p. DPP [1996] QB 351.

234 _{See Jay Sterling Silver, ‘Equality of Arms and the Adversarial Process: A New Constitutional} Right’ (1990) 27 Wisconsin Law Review 1007; Orie (2002) 1443.

235 _{Thus, for example, article 81 of the French Code de Procédure Pénal (Code of Criminal} Procedure) states ‘The investigating judge undertakes in accordance with the law any investigative step he deems useful for the discovery of the truth. He seeks out evidence of innocence as well as guilt’. (‘Le juge d'instruction procède, conformément à la loi, à tous les actes d'information qu'il juge utiles à la manifestation de la vérité. Il instruit à charge et à décharge’.).

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principle entitled to be tried by jury, juries are known in the inquisitorial system but most of the cases are under the competence of professional judges.236

With regard to the position of the parties, in the adversarial system, they present their respective case during the trial and in a public hearing with the goal to persuade the jury to take a favorable decision for either party. This dominant role relies on their intensive fact-finding activities during pre-trial.237 _{There is}

also a strict order, separating evidence introduced by the prosecution and the defence as the parties present their respective cases. The central role assigned to the parties in the adversarial system explains why trials in abstentia are generally inadmissible,238 _{and also the traditional decisive impact of the plea entered by the}

defendant on what proceedings should follow later, i.e., bringing the trial to sentencing.239 _{Additionally, the defendant may defend himself/herself in court}

and present his/her case but (s)he is limited to presentation of facts to his/her personal knowledge, i.e., (s)he can do so if (s)he decides to testify as witness of his/her own case and, thus, is cross-examined by the prosecution.240 _{Under the}

inquisitorial system, the parties may introduce additional evidence and suggest supplementary investigations but it is the judge who dominates the trial.241 _Thus,

the parties mainly supplement investigation, make observations and present their opinions. There is no distinction between evidence filed by the prosecutor and that by the defence because there are not two cases but only one. Parties’ relatively passive roles in inquisitorial systems underlie the common use of trials in abstentia although the right of the accused to be present at trial is recognized.242 _{In inquisitorial systems, judges’ active role makes them hear}

evidence even when the accused confessed although this certainly shapes the

236 _{While some civil law countries like France, Belgium, Denmark and Italy reserve jury trials for} (very) serious cases, others reject them. See Orie (2002) 1454.

237 _{Ibid., 1445.}

238 _{In the English system, there must be exceptional circumstances to justify a judgment before the} Crown Court in absence of the accused. See R v. Jones [2002] 2 WLR 524.

239 _{However, English case law states that the judge, in cases of guilty plea, is not bound to accept the} version of facts agreed by the Prosecution and defence and, if (s)he is suspicious, (s)he can call evidence to determine what really happened. See R. v. Beswick [1996] 1 CrAppR (S) 343; R. v. Tolera [1999] 1 CrAppR 29.

240 _{The defendant cannot be called by the Prosecution since this would violate the rule, according} to which, no one can be compelled to give evidence against himself. See, e.g., United States Constitution, 5th Amendment; Canadian Constitution Act 1982, Part 1, Article 11c of the Charter; and English Criminal Evidence Act 1898, s. 1(a)(1).

241 _{Orie (2002) 1445.}

242 _{Whereas, for example, in the French, Italian, Belgian and Dutch systems defendants are quite} commonly tried in their absence, article 320 of the German Code of Criminal Procedure (StPO) does not allow a trial in absentia.

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procedures to be followed, and the defendant can be questioned by the court, prosecutor and defence councel and (s)he is not even allowed to take an oath.243

Accordingly, the difference with the adversarial system is not on whether the defendant is obliged or allowed to speak in his/her defence but on what capacity does it.244 _{Victims’ status is discussed in the next sub-section.}

Concerning the rules of evidence, adversarial systems normally follow much stricter evidentiary rules than those used in inquisitorial systems.245

Whether evidence introduced by one of the parties can be admitted or should be excluded becomes the main issue and its admissibility depends on factors such as content of evidence, how the information was obtained and its protection as well as its presentation in court.246 _{Evidentiary rules work as mechanisms at trial,}

which enable to keep the parties on the right track of presenting evidence. Even though the parties traditionally are not obliged to disclose results of pre-trial investigations, the court can assist parties via necessary coercive measures.247

There has been progress via expansion and codification of disclosure obligations in adversarial systems.248 _{Variations within the adversarial model are related to a}

defence’s reciprocal obligation to disclose.249 _{Disclosure is, in any case, a vital}

issue in an adversarial model. In inquisitorial systems, trial judges normally have a dossier at hand making it easy to call for evidence just by referring to the dossier whereas adversarial-system lawyers can only speak of potential evidence. However, the contents of the dossier may be subject to dispute during trial. The so-called principle of ‘free proof’ is normally present in inquisitorial national systems.250 _{Rules of evidence in inquisitorial systems primarily constitute a}

243 _{This is even the case of the Italian common law oriented Code of Criminal Procedure whereby} the defendant does not take an oath although (s)he is examined and cross-examined. For the Italian system, see Antoinette Perrodet, ‘The Italian System’ in Mireille Delmas-Marty and John Spencer (eds.), European Criminal Procedures (Cambridge University Press 2002) 348-412. 244 _{Jean Pradel, Droit Pénal Comparé (Dalloz 1995) 449.}

245 _{Orie (2002) 1451.}

246 _{Ibid., 1452. It should, however, be mentioned that, for example, a part of the body of} exclusionary rules concerning evidence obtained illegally or improperly do have their counterparts in inquisitorial systems. See John Spencer, ‘The English System’ in Delmas-Marty and Spencer (2002) 142, 162.

247 _{There are still, however, places in the United States where producing a ‘surprise witness’ for the} Prosecution is a legitimate technique. John Spencer, ‘Evidence’ in Ibid., 594, 631.

248 _{E.g., the English Criminal Procedure and Investigations Act (1996) codified the disclosure} obligations, previously governed by the common law.

249 _{E.g., Rule 16(b) (1) (A) and (B) of the Federal Rules of Criminal Procedure in the United States.} 250 _{E.g., article 427 of the French Code de Procédure Pénale states ‘Except where the law otherwise} provides, offences may be proved by any mode of evidence and the judge decides according to his

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normative instrument for the judge to evaluate dossier contents and what was presented at trial.251 _{Results of pre-trial investigations are already disclosed when}

inserted in the dossier.

Among other features, it is pointed out that whereas the process in adversarial systems is normally divided between the trial phase, i.e., determination of guilt or innocence, and a later sentencing phase, in inquisitorial systems material for both conviction and sentence is usually examined and decided together.252 _{When it comes to appeals, the adversarial system limits it.}

Indeed, the right to appeal is not regarded as an essential part of the due process.253 _{When implemented, the appeals phase does not mean a trial de novo}

but consists in examining the court record to find errors claimed by the appellant.254 _{In contrast with the adversarial model, defence and prosecutor in}

the inquisitorial system can normally appeal and this consists in a full re-hearing of the case which may lead to replacement of the trial judgment.255 _{Thus, the}

appeals phase consists in principle of a trial de novo and is granted more generously.