Contrasting and comparing the Inquisitorial and Adversarial trial systems – Introduction
The adversarial system of trial has significant similarities and differences with the inquisitorial system of trial. In both systems, for instance, the accused has a right to oppose the evidence brought by the prosecution and present a different set of evidence to the court. However, the two systems differ in terms of organization and structure of investigative method or forensic process. In an adversarial system, the parties involved in a case act independently from the court and are responsible for gathering and presenting evidence to a neutral judge. In an inquisitorial system, an official body that works together with the court authority, including the judge, is given the responsibility of finding the truth. The official body gathers evidence for both the accusing party and the accused. As such, the accused and the accusing act as equal, opposing parties in an adversarial system, unlike in the inquisitorial system where the accused party has a little role to play in the court proceedings.
Adversarial Judicial system in Australia
In practical applications, the adversarial and inquisitorial systems are quite different mainly because of the variations that exist between the two systems. The adversarial system is the most common in Australia, although there have been numerous calls for reform. The inquisitorial system is a good reference point that can be used in the process of reforming the adversarial system. The adversarial system is mainly criticized in Australia because of the autonomy given to the accused parties. Consequently, there have been calls for an increase in the level of control of the judiciary over the actions of both the accused and the accusing parties prior and during trials. In fact, numerous proposals have been made for the adoption of the inquisitorial system in most of the Australian states. Those who make the proposals take into account inquisitorial jurisdictions of European countries such as France and China.
One of the remarkable aspects of the adversarial and inquisitorial systems is that they offer protection of private justice by retribution in criminal cases. Consequently, both systems have been successful in providing private justice for a long time. In both systems, the focus has been to ensure that there is procedural fairness in handling of criminal cases. Both systems focus on balancing the interests of the involved parties and the society. Public demonstration of respect, justice and fairness when handling criminal cases is vital since it justifies the purpose and existence of a judicial system and also enhances public confidence and support to the system.
Statement of Research Problem
The adversarial and inquisitorial systems of trial have been developed over many centuries. Today, there are clear distinctions between them. Since the two systems have been applied practically, the characteristics, advantages and disadvantages of each of them are well known. In Australia, concerns have been raised about the problems that arise in the adoption of the adversarial system and the need to replace it with the inquisitorial system. However, most people do not understand the advantages and disadvantages of two systems. The problem is that there has been a debate about the most suitable system between the two that might confuse many people as scholars have been advancing contradictory ideas. As such, there is a need to carry out research that will bring out a comprehensive, clear distinction between the two systems. Doing so will make people of Australia more informed as they make decisions regarding whether to adopt an adversarial system or to replace it with an inquisitorial system.
The Aim/Objectives of the Study
The aim of this research is to contrast and compare the difference of the Adversarial system of trial and the Inquisitorial system of trial. The study will be focused on meeting the following specific objectives:
- Introducing and determining the distinction between the inquisitorial and adversarial trial systems
- Explaining the advantages and disadvantages of the inquisitorial and inquisitorial systems
- Determining the role played by the judge and the lawyer in the inquisitorial and adversarial trial systems.
The research will seek to answer the following questions:
- What are the main differences between the inquisitorial and adversarial systems of trial?
- What are the strengths and weaknesses of the inquisitorial and adversarial systems of trial?
- What is the role of the judge in the inquisitorial and adversarial systems of trial?
- What is the role of the lawyer in the inquisitorial and adversarial systems of trial?
Significance of the Research
This research will provide a comprehensive account of the differences between the inquisitorial and adversarial systems of trial. As such, the outcomes of the study will be vital in reminding the policy makers about the distinction between the two systems so that they can make informed decisions regarding the most suitable system to adopt. Importantly, the outcomes of the study will enable the Australian citizens who do not have knowledge about the judicial system gain a useful insight about the two systems and the distinctions between them. In case the citizens will be involved in making decision regarding the most suitable system in the future, this study will be a reference point from there they will determine the differences between the two systems.
This section presents previous literature focusing on the distinction between the inquisitorial and adversarial systems of trial. The section focuses on detailing background information about the characteristics, strengths, and weaknesses of each of the systems and the role played by the judge and the lawyer in each case.
Overview of the Distinction between Adversarial and Inquisitorial Systems
The initial efforts to make a distinction between the inquisitorial and adversarial trial systems were made during the 12th century in Europe. The inquisitorial processes were triggered by the judicial system while the adversarial systems were initiated by private parties. Later, during the medieval period, more features were added to the two processes, leading to further evolution of the distinction between them. Most notably, the judge’s role in the evidence finding stage of a trial process in the two processes was established during the medieval period. The judge was supposed to be an impartial truth-seeker during the medieval times. In a case that took place during the fourteenth century, for instance, judge Bartolus from Sassoferrato made the verdict that the court could be actively involved in examining witnesses in the process of finding the truth. During the same period, jurist Baldus de Ubaldis argued that the court could participate in finding the truth about criminal cases. In inquisitorial cases, the judge was allowed to participate in summoning witnesses and interrogating them in an effort to find the truth.
Traditionally, trials involving application of common law adopted the adversarial model in both civil and criminal proceedings. In such cases, the parties were primarily responsible for presenting the evidence. This explains the fact that in European countries such as England, there was no official apparatus, such as the prosecution, meant to engage in routine judicial proceedings. Although most European countries replaced the adversarial system with the inquisitorial system later, there are still traces of the characteristics of the adversarial model in the judicial systems in those countries. Prior to the 19th century, the judge could still have an influence in the investigation process even in cases where adversarial model was meant to be adopted. As a result, some characteristics of the inquisitorial system were still evident in cases involving adoption of adversarial model. During the 19th century, however, a more clear distinction emerged between the adversarial and inquisitorial systems of trial. The aspects of inquisitorial model were expelled out from the adversarial systems. However, liberalist ideas criticized the adversarial model because it could lead to unfair judgment in a case where one of the parties to a criminal case was not in a position to present adequate evidence, yet there could be compelling evidence. To streamline the adversarial system further, the parties to court cases in adversarial systems were allowed to hire attorneys who had a better knowledge of law to present them.
Today, the distinction between the adversarial and the inquisitorial systems of trial is clear. During the trial stage in the inquisitorial procedure, the suspect or the accused person depends on official government authority for finding evidence and for giving a fair trial. In most inquisitorial systems, the official body is represented by the prosecutor. The accused person, also called the defense, has limited power and ability to carry out own investigations. The prosecutor has the responsibility of investigating witnesses and evidence. In order to make objective judgments and effectively investigate both exculpating and incriminating evidence, the prosecutor must act with impartiality. The defense depends on the outcomes of the investigation process carried out by the prosecutor. The investigative activities carried out by the prosecutor enable the prosecution to have reasonable information about details of a criminal case. The information gathered by the prosecutor is used to prepare a dossier that the jury uses as the basis of making the final judgment.
To the contrary, the adversarial system is usually adopted in countries where the equality of the accused and the accusing parties is used as an important factor in determining the fairness of a trial. In such systems, depending on the impartiality of the state officials such as the prosecutor is viewed as being undesirable since the officials can sometimes be impartial and hence, deny one of the parties involved in a criminal case a chance for fair judgment. The equality of the defense and the accusing party leads to battle at trial in the sense that the parties involved in the case, including the witnesses, present their evidence and the case is investigated and discussed openly in front of the judge. The adversarial system is based on the argument that the truth can only be determined when the parties involved in a case engage in such an open battle. Since the truth is determined openly, both the accusing and accused parties are compelled to accept it. The adversarial system, therefore, differs from the inquisitorial system in the sense that the latter is base on the idea that the state is better equipped to find the truth through an investigative process done outside the court. This explains the fact that the rule of special cases is not applicable in an adversarial system. When handling special case, the state, through official representatives, makes its investigative strategy known prior to the actual trials. Consequently, the rule of special case is usually not applied in adversarial systems since the state is perceived as contributing to the breach of equality rights of the accused and the accusing parties.
Strengths and weaknesses of the Inquisitorial and Adversarial Trial Systems
In addition to delineating the distinction between the inquisitorial and adversarial trial systems, scholars have paid significant attention in determining the strengths and weaknesses of each. For instance, scholars have argued that the adversarial system is advantageous since it allows the claimant and the accused to bring out their evidence that is ultimately weight by the judge. Consequently, the adversarial system enables the state to respect the right of expression of both parties. Related to this, the adversarial system has been found to be advantageous since it enables the state to respect the equality rights of the claimant and the accused. The judge is non-partisan and only makes the final decision based on the facts or evidence presented by the two parties. In addition, the adversarial system makes the judge appear neutral in the face of the public since he is non-partisan. Consequently, the adversarial system enhances the confidence of the public towards the judicial system.
Despite having the advantages mentioned above, scholars have pointed out several weaknesses associated with the adversarial system of trial. The main disadvantage of the adversarial system, as most scholars argue, rests on the resources used by the two parties. Tullock, for instance, gave an illustration of how the adversarial system is disadvantageous in comparison with the inquisitorial system. Tullock argued that in case a judge in an inquisitorial system spends 80 percent of resources used in a court case for the purpose of investigations and each of the parties involved spends 10 percent, around 90 percent of the resources ids used in determining and bringing out the truth. Conversely, if the judge uses 10 percent of the resources used in an adversarial system to search for the truth and each of the parties spends 45 percent, only 55 percent of the resources are used to bring out the truth. 45 percent of the resources are used to conceal the truth or to deceive the court. As such, Tullock concluded that the judge should adopt the inquisitorial model and hence, carry out as much investigation activities as possible in search of the truth. The other disadvantage raised by the scholars is that each party provides evidence that favors him, even if it is false. The ultimate impact is that the judge may end up relying on false evidence unknowingly that seems to be more compelling than the truthful information.
One of the strengths of the inquisitorial system, as most scholars have argued, is that much of the resources spent in a case are used in search of the truth. This is evident in the illustration given by Tullok. As a result, there is a high chance of the judge discovering the truth and giving a fair judgment. The other advantage is that since the judge is actively involved in the search for the truth, there is a higher probability of gathering adequate information about a case. Consequently, the judge is well informed as he makes the final decision. The ultimate impact is that the probability of making a wrong judgment or convicting an innocent person is low. Also, the inquisitorial system has been found to be advantageous because it gives the judge an allowance to verify facts of a case through seeking more evidence. Despite having numerous advantages, the inquisitorial system is criticized because if failing to give regard to the equality rights of the involved parties. The accused is not given equal rights as the claimant in the participation to the case. The second major weakness of the inquisitorial system is that it gives leeway for the prosecution to make biased decisions regarding a case in cases where they are non-partisan.
The first article by Jolowicz analyses the development and evolution of Adversarial system in England and discusses the shift of judge’s role and the power of the parties. Then he compares the Inquisitorial system of trial in French in terms of court’s role and the parties’ control of the evidence. In addition, to improving the efficiency, there are some changes made in French litigation.
Parisi takes a slightly different approach. The aim of his article is to compare the two systems in economic perspective. Parisi divided his research into four main parts. In the first part, he explored the differences in the conduct of a case between the inquisitorial and adversarial trial systems. As well, Parisi examines some of the alternative discovery modes in the application of the two systems. In the second part, Parisi explores how procedural rules in both systems influence the expenditure by the parties involved. Parisi concludes in the second part that the adversarial system has a negative impact on the litigation expenditure than the inquisitorial system because of the weight given to the judicial scrutiny and judge-obtained evidence in the latter. In the third part, Parisi explores the perceived social impact of the two systems as a result of the expenditure involved.  According to Parisi, the higher costs involved in the adversarial system is usually associated with better social outcomes. The fourth part contains concluding remarks. Parisis’s analysis helps to establish the difference between the inquisitorial and adversarial systems from perspective of the costs incurred. In doing so, Parisi brings out the perception of the scholars and the society towards the quality of the two systems. The arguments of Parisi are compelling since he uses comparative statistics as evidence to support his claims. Despite this, Parisi’s study calls for additional empirical research to determine the perceived impact of the expenditure involved in both the inquisitorial and adversarial systems. 
For the purpose of contrast the Adversarial system of trial and the Inquisitorial system of trial, Jolowicz, Parisi and Kim analyze the differences between two systems. Otherwise Hodgson evaluated the Inquisitorial system from French defense lawyer’s view.
Jolowicz states Adversarial system of trial has great benefits to ensure the fundamental of procedural justice which both parties including losing party fell they have experienced a impartial trial. And he compares with French trail; judge can make decision without a debate.While Kim argues that the main benefits of inquisitorial system is its equity toward the dispute resolution. Judge or investigator can collect and evaluate the evidence without fear or favor. In contrast, common law process may lead to evidence tampering, as the adverse position of parties. And he thinks in adversarial system there is more competitive motivation among evidence collection.
Massenot also discusses the benefits of the task of evidence collected from lawyer that lead to they may have more information and facts of the case than the inquisitorial system. However, he mentions the disadvantage of this process that only the evidence that is preferred by lawyer can be presented on the court. In contrast Hodgson argues the defense lawyer in French has right to access to the case file before judicial questioning of defendant. The role of lawyer in not straightforward investigates and collects evidence, but rather a subsidiary actor in the trail.
In the view of Jolowicz, judge has no obligation and duty to investigate the fact and collect evidence in common law system. Court deal with issue related to procedural matters. While in inquisitorial system of trial in French the court has power to control the litigation. In the perspective of cost of both systems, Parisi concludes adversarial system has social value, as the sufficient information on the court provided by parties as a result increase the percentage of a correct decision. Massenot argued that in the common law system, lawyers are more productive than judge, because they need to collect evidence to prove their points. And investors earn more money than entrepreneurs, since the great market to investigate the evidence. Therefore, common law countries have large financial markets related in evidence investigation than civil law countries.
Hodgson evaluated the function of the defense lawyer in criminal procedure in French legal system. He introduces the history and development of pre-trial role of the French criminal defense lawyer, then analyses the modern defense role. In the last part of his essay he discusses what rights does defense have and what ethics should they follow. Kim emphasized on the difference of two procedures with information acquisition. He uses an equilibrium analysis to analyze and compare two systems, in terms of several aspects: the function of private information, the expenditure of trial and others.
The Role of the Judge
Usually, the judge does not have information that is required to make an informed decision at the commencement of a case. The judge must seek information from both the side of the accused party and the victim. The judge is obliged to seek as much information as possible that will facilitate in order to perfect decision. When gathering information related to a case, a judge can rely on the evidence brought by the parties involved or actively search for the evidence. When the judge relies on the revelations of the two parties, he tries to determine which of the two versions is more believable. Such an approach, which is based on the adversarial model, is anchored in the common law. When the judge actively seeks for the evidence, the approach is inquisitorial. Scholars have pointed out the significant differences in the role of a judge in both the adversarial and inquisitorial systems.
When adopting the adversarial model, a judge uses accusatory procedure to gather information. The judge takes into account the evidence provided by two antagonistic parties before making the final decision. As such, the suit is directed by the claimant and the defendant. The claimant and the defendant use their resources to compile information that they believe is compelling to the judge. Each of the involved parties tries to orient the decision of the judge to his advantage. Throughout the proceedings, the judge plays a neutral role and the debate in the court takes place according to established rules and procedures. Conversely, the judge involved in inquisitorial proceedings is more active. The judge directs the proceedings, asks questions to the claimant and the accused, interrogates the witnesses and if need be, asks some experts to search for more proof.
Different scholars have advanced varying views regarding the role that the judge should play when dealing with cases. Posner suggested that applying the adversarial or inquisitorial model strictly limits the ability of the judge to gather useful evidence that could help to facilitate fair judgments. Posner argued that in the case of the adversarial system, the involved parties are allowed to even fabricate evidence as long as it will appear compelling to the judge. Consequently, the there are high chances of making unfair judgments or wrongly convicting innocent parities. Posner argues further that in cases where the inquisitorial system is adopted solely, the official bodies working with the judge to gather evidence may take an impartial approach to investigation and ultimately, lead to biased or unfair judgment. In this regard, Posner argued that it is vital for the judge to incorporate both aspects of the adversarial and inquisitorial systems when gathering information.
Tullock criticizes the argument raised by Posner, arguing that combining the inquisitorial and adversarial models is very involving, time consuming and costly. Tullock suggested that instead of combining the two models, it is better to adopt the inquisitor al approach. According to Tullock, the inquisitor al approach is more efficient since it helps to eradicate errors involved in a combined approach since a bigger part of resources is used to search for the truth than in the adversarial approach.
The previous literature has made an important contribution to the argument of the Adversarial system of trial and the Inquisitorial system of trial. For instance, Jolowicz gives a comprehensive overview of both systems, from the role of judge and the power of parties. Parisi and Massenot from the view of the cost of two systems, conclude common law system has more financial benefits for society. Based on the findings of the literature review, it will be possible to provide a critical analysis of the Adversarial system of trial and the Inquisitorial system of trial.
` Methodology encompasses all approaches and activities done prior, during and after doing a research. This section presents the methodology that will be used to carry out the proposed research. Precisely, the section outlines the research design, data collection methods and the research process that will be adopted for this research.
In this study, the researcher has adopted an exploratory research design. This design is adopted in the cases where researchers focus on gaining new insights from phenomenon and when observing existing phenomenon in new way. The best research approach to use in an exploratory research design is the qualitative approach. A qualitative approach is one in which no numerical information is gathered or analysed. The qualitative method is contrasted with the quantitative approach that involves gathering and analysing numerical data using statistical tools. In this study, the researcher will apply the exploratory design to consolidate and gain new insights from the existing literature and empirical evidence on the differences between inquisitorial and adversarial systems of trial. Due to the nature of the study, the researcher will apply content analysis on the data that will be gathered.
In this study, the researcher will gather and analyze both secondary and primary data. Primary data is original in nature or data that has not been altered from the manner it was gathered for the first time. Primary data is one that has not yet been analyzed. Court cases are examples of the primary data that the researchers will explore. Conversely, secondary data is one that is not original in nature. Secondary data may emerge as a result of an analysis of primary data. Examples of secondary data are laws, findings from previous studies and analyzed court cases. Due to the nature of the study, the researcher will carry out a desk-based research. As such, the researcher will not gather empirical data from the field. The researcher will use three types of data described below:
- Laws and policy documents relating to the Adversarial system of trial and the Inquisitorial system of trial.
- Textbooks, journal articles and commentaries on Adversarial system of trial and the Inquisitorial system of trial, accessible via the library or online via Google books;
- Cases of the High Court of Australia, available via several online legal data bases or on the court’s official web sites.
In a first stage, the research will introduce and discuses the content of each system, separately in civil process and criminal procedure, with the instruction of case study and code. In this stage, the research will also examine the historical context in which the development of both system. In a second stage, this research will examine the role of judge, the role of defense lawyer, with the contrast and compare between these two systems.
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- Chulyoung Kim, ‘Adversarial and Inquisitorial Procedures with Information Acquisition’ (2013) 30 (4) The Journal of Law, Economics, and Organization 767-803 <doi:10.1093/jleo/ewt012>.
- Current White Collar Cases and the Inquisitorial Model.”Buffalo Criminal Law Review 8, no. 1 (2004): 165-220.
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- Francesco Parisi, ‘ Rent-seeking through litigation: adversarial and inquisitorial systems compared’ (2002) 22 International Review of Law and Economics 193–216.
- Francesco Parisi, Rent-seeking through litigation: adversarial and inquisitorial systems compared. International Review of Law and Economics 22 (2002) 193–216.
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- Jacqueline Hodgson, ‘The Role of the Criminal Defence Lawyer in an Inquisitorial Procedure: Legal and Ethical Constraints’ (2006) 9 (1) Legal Ethics 125-144.
- L’Heureux-Dube, Claire. “Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, The.” Tulsa LJ 34 (1998): 15.
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- Mikkelson, H., 1998. Towards a redefinition of the role of the court interpreter. Interpreting, 3(1), pp.21-45.
- Moohr, Geraldine Szott. “Prosecutorial Power in an Adversarial System: Lessons from
- Pizzi, William T., and Luca Marafioti. “New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, The.” Yale J. Int’l L. 17 (1992): 1.
- Radev, D.R., Jing, H., Styś, M. and Tam, D., 2004.Centroid-based summarization of multiple documents. Information Processing & Management, 40(6), pp.919-938.
- Radev, Dragomir R., Hongyan Jing, and MalgorzataBudzikowska. “Centroid-based summarization of multiple documents: sentence extraction, utility-based evaluation, and user studies.” In Proceedings of the 2000 NAACL-ANLP Workshop on Automatic summarization, pp. 21-30.Association for Computational Linguistics, 2000.
- Stone, Julius. Legal system and lawyers’ reasonings.Stanford University Press, 1964.
- Western, John Stuart. Social inequality in Australian society.Macmillan Co. of Australia, 1983.
Comparative Law Quarterl 290 <doi:10.1093/iclq/52.2.281>Francesco Parisi, ‘ Rent-seeking through litigation: adversarial and inquisitorial systems compared’ (2002) 22 International Review of Law and Economics 207. Baptiste Massenot, ‘Financial development in adversarial and inquisitorial legal systems’ (2011) 39Journal of Comparative Economics 607,608. Jacqueline Hodgson, ‘The Role of the Criminal Defence Lawyer in an Inquisitorial Procedure: Legal and Ethical Constraints’ (2006) 9 (1)Legal Ethics 125-144. Chulyoung Kim, ‘Adversarial and Inquisitorial Procedures with Information Acquisition’ (2013) 30(4) The Journal of Law, Economics, and Organization 767-803 <doi:10.1093/jleo/ewt012>  Stone, Julius. Legal system and lawyers’ reasonings. (London: Stanford University Press, 1964), 61.
Friedman, Lawrence M. The Legal System: A Social Science Perspective: A Social Science Perspective. (New York, NY: Russell Sage Foundation, 1975), 112. Western, John Stuart. Social inequality in Australian society. (Sydney: Macmillan Co. of Australia, 1983), 57.  Claire L’Heureux-Dube, “Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, The.” Tulsa LJ 34 (1998): 15.  Ibid, 15.  Mikkelson, H., 1998. Towards a redefinition of the role of the court interpreter. Interpreting, 3(1), 22.  Mikkelson, H., 1998. Towards a redefinition of the role of the court interpreter. Interpreting, 3(1), pp.21-45.