Issues in Criminal Justice

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The Adversarial System

The adversarial system, also known as the adversary system, is the legal system applied by countries that use common law. Among these are the criminal courts in the UK. It involves the presentation of a case by two advocates for prosecution and defence before a neutral and passive judge. The prosecution goes against the defence in criminal proceedings seeking to prove the guilt of the accused. The judge focuses on matters of the law, facts and due procedure in determining a verdict and mostly plays the role of a referee between the defence and prosecution. They are not expected to initiate inquiries on any party but to adjudicate and preside over the proceedings (Delmas-Marty et al., 2002).

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The adversarial system originated from the practice of trial by combat in early civilization where weaker parties were allowed to select a champion to represent them in a fight. The legal system provides equal opportunity for both sides to present their cases in front of a jury or a judge. The accused have the right to be represented by legal counsel. Pretrial settlements and discovery proceedings are available in this system, which facilitates the discussion of non-contested facts by prosecution and defence. It enables the parties to eliminate disputes that are not necessary during the trial privately. The proceedings may also be dismissed where the evidence or facts presented are found to be weak (Langbein, 2003).

Advantages and disadvantages of the adversarial system

In a criminal proceeding, the accused does not have to present any evidence for their defence and may not be questioned by either prosecution or the judge unless they willingly do. This is known as the right to silence and is the defence counsel’s tactic to avoid the questioning of their client. It restricts the evidence the client presents, against themselves in the trial. Neither the prosecution nor the judge can compel them to take the stand.  Where an accused chooses to testify, they are cross-examined by the prosecution and cannot lie in their defence, as this would be perjury (Van Caenegem, 1999).

Judges in the adversarial system have to be impartial and ensure that due process is applied and fundamental justice is achieved for all parties. Judges with the advice of the counsel elect what evidence is admitted or rejected into the record during a trial. The rules of evidence allow the defence counsel to object the admission of evidence based on its credibility or relevance to the legal issue being adjudicated over. The evidence produced by both sides has to be relevant to the case so that it is admissible and hearsay automatically is rejected. 

When a defendant admits or confesses to a crime in the adversarial system, the sentencing proceedings are immediately initiated. It used as a means for plea bargaining before or during the trial to expedite the conviction and plea for a reduced the sentence for the accused. However, the accused must make a statement regarding the crime they confess to, and false confessions are disregarded.  The prosecution must, however, still present the case in full. Plea bargaining in this system may be used to prevent trial where the sentence is given directly by the confession. However, evidence must be provided by the prosecution to support the guilty verdict under the principle of corpus delicti (Van Caenegem, 1999).

The adversarial system has been argued as fair, as it limits the state’s bias against the defendant through their defence counsel. The client appoints the defence counsel, and the state cannot abuse or influence the case against the defendant. In the adversarial system, the defence counsel has the opportunity to defend their client in trial fully. The pre-trial and discovery processes allow them to uncover and review critical testimonies, statements, and evidence before the trial begins. They can plan the best defence strategy based on this knowledge as they are aware of what issues to present and what to avoid for the best outcome of the case (Van Caenegem, 1999).  

The adversarial system, however, has the advantage of not being threatened by institutional influence. The sitting judge only adjudicates depending on the facts and evidence presented and did not participate in any fact-finding processes. They, therefore, cannot be manipulated into controlling the process of the trial. The standard of proof set in the adversarial system is that of beyond reasonable doubt. The prosecution must undertake to prove the guilt of the accused who is considered innocent until proven guilty. The accused is safeguarded from having to prove their case rigorously and can focus on discrediting the evidence presented by the prosecution against them. The allowance for appeal is limited to the determination of facts that are contradictory to the evidence (Van Caenegem, 1999).

The cross-examination of witnesses and victims in an adversarial system is regarded as harsh and at times punitive, especially in sexual offence cases to the victims who volunteer to testify during the trial. The process is intrusive and can be embarrassing where both the prosecution and defence counsel ask questions rigorously to prove their claims without consideration for the victim (Van Caenegem, 1999). The right to remain silent in this system is viewed as both an advantage and disadvantage. It allows the accused from self-incriminating by testifying or through examination and cross-examination by the prosecution. It may, however, hinder the court from obtaining the truth from the accused as a rule is strictly adhered to without compulsion (Delmas-Marty et al., 2002).

The adversarial system has been criticized for having exclusionary rules for admitting evidence that is hearsay that is collected during the investigative stage of criminal proceeding. Although this evidence may predispose the accused to information that cannot be legally challenged in their case, the information that may ascertain facts is disregarded all together for lack of proof (Friedman, 1998). It has also been claimed that the adversarial system hinders adequate search for the truth because of the prosecution, defence control, and manipulate the process of trial to convince the judge of their claim. The judges are passive and cannot initiate the search for truth and justice, as they are not allowed to intervene in the investigation process. The system focuses on procedure and technicality of the case in a way that is mechanised. The prosecution pursues to convict the accused while the defence seeks to exculpate their client, all staged before a passive adjudicator. (Van Caenegem, 1999). 

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Cunning or wealthy criminals have also criticized the adversarial system for being open to manipulation. This is attributed to the equal positions assumed by the prosecution and the accused, the rules for admissibility of evidence and a passive judge that can be manipulated to control the proceedings. The exclusionary rules of evidence limit the admissibility of evidence that could be used to determine facts against the accused without any consideration (Friedman, 1998). The wealthy can afford to hire defence counsel that is highly skilled in successful exculpation of their clients in criminal cases (Van Caenegem, 1999).  

Inquisitorial System

The inquisitorial system entails a judge who actively investigate the facts in a case used in civil law legal system. Countries in continental Europe apply this legal system in their respective jurisdictions. The judge or jury can recommend questions to the court on issues they find or opine as not having been resolved amicably during examination and cross-examination (Delmas-Marty et al., 2002).

The judge can initiate public inquiries for fact-finding where they actively question the witnesses, defence counsel, and prosecution. They have authority to order the analysis of the evidence presented by impartial institutions where it is suspected that the findings by the prosecution and defence counsel are not adequate. When both parties have presented the evidence, testimonies and summary arguments, the jury then declares a verdict. The discussions by the jury leading to the verdict are done privately (Van Caenegem, 1999). The inquisitorial system primarily focuses on procedural law, that is, how criminal inquiries are conducted during the trial as it facilitates due procedure in a criminal trial and not the direct application of substantive law. The investigating judge independently conducts inquisitions and investigations into complex issues or facts to draw their conclusions about the case and declare a verdict. They are also involved in pre-trial supervision and can dismiss without sufficient facts or evidence to proceed to trial. (Delmas-Marty et al., 2002).

The system was developed in 1198, to reform the current legal system where the magistrates were required to receive a formal complaint or accusation from the afflicted party or a witness to summon or commence any proceedings against an accused. The system introduced the courts’ authority to initiate proceedings at its discretion through summoning and interrogation of witnesses and where the testimony was found valid; the accused was summoned for trial (Levinson, 2002). Administrative courts apply this system in litigation proceedings that are mostly formal and technical. The process entails the provision of submissions by the complainant to the court requesting for direction, information or explanations from the administration concerned. The court inquires further from the complainant, where sufficient facts are established, court proceedings are initiated (Delmas-Marty et al., 2002).

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In the inquisitorial system, the judge’s role is not only to adjudicate over the case, but also gather all the necessary facts and review all the evidence presented. They are required to determine the incriminating and exculpatory evidence to determine what is admitted and rejected. The judge, however, cannot initiate criminal investigations. Criminal trials in this system involve the prosecution seeking the conviction of an accused, the defence rebutting the claims made by the prosecution and the judge or jury deciding the case based on the conclusions drawn from the facts and evidence presented during a trial (Delmas-Marty et al., 2002).

Advantages and disadvantages of the inquisitorial system

The system has the advantage of not having any exclusionary rules of evidence and admissibility is determined by the legality in obtaining the evidence and relevance to the facts. Dispositions and character evidence are admissible in the trial so that all the evidence connected to the case is presented in order facilitate the determination of facts (Friedman, 1998). According to Van Caenegem, this legal system is advantaged in that it said to have a neutral forensic system in the criminal proceedings as judges can recommend inquiries to clarify or investigate the facts or evidence presented. The system focuses on the outcome of the case seeking to unearth the truth for the court to reach its decision. An impartial judicial officer, therefore, seeks the truth on behalf of the state, who is not influenced by whether a conviction is achieved or not.

The right of the accused to remain silent during the trial is reversible in an inquisitorial system. The rule can be undermined to avail onus to the accused to explain why the specific evidence has been presented against them to determine its connection to them and relevance. This questioning, however, places undue pressure on the accused to take the stand even in instances when it may be of disadvantage for them (Dammer et al., 2013). The system also allows the discretion to investigate or order fact-finding processes during the trial of judges in their role as judicial officers that enables them to supervise the police and prosecution. They review the evidence and information presented to facilitate the determination of the truth in alignment with the facts of the case. For instance, they can question the accused to ensure that their confession is true and was made voluntarily without undue pressure from the police or the prosecution. The supervisory and investigative role by the judge is however not practical for low profile cases or where the resources are limited to some cases. The resources and judge’s role are allocated to cases that are regarded as high profile leaving out the rest to rely on the prosecution (Van Caenegem, 1999).  

The standard of proof in the inquisitorial system is the standard determined by the inner certainty of the jury or judge, the trier of fact, which is also known as intime conviction. The trier of fact has to obtain all the facts and make their decision depending on their moral certainty. The decision is not openly subject to an appeal and can only be challenged by legal matters or technical and formal defects in the proceedings. This predisposes the accused to biased or erroneous conviction, which is as well a disadvantage for the system (Delmas-Marty et al., 2002).

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In the inquisitorial system, the accused is powerless in determining their defence as the prosecution takes all the means necessary to conduct a neutral search for the truth. The defence for the accused has to present the case for their innocence to the court, as they are presumed guilty. When an accused confesses to the crime he is charged with, the confession is admitted as part of the evidence and cannot be retracted unless proof of manipulation or use undue influence to confess is provided. A verdict is not immediately entered against them as the prosecution is still required to prove the validity of the confession and connect it to the facts of the case. The dependence on state institutions to investigate cases, such as the police and the prosecution in the inquisitorial system is criticized. Where these institutions lack the necessary resources to conduct comprehensive investigations, the facts and evidence presented at trial are not always sufficient to achieve convictions for guilty criminals (Van Caenegem, 1999)  

In conclusion, both systems can be attributed to efficient legal systems in their respective common law and civil law jurisdiction in the determination of cases at both pre-trial and trial stages. The legal systems were adopted and have been modified over time to best apply in the criminal justice systems. The disadvantages either system can be reviewed by judicial officers to ensure that these do no create a loophole for manipulation of the justice system by either party in criminal proceedings. The systems have distinct characteristic that prosecution and defence or the accused can use to achieve justice or the best outcome for their cases. The appeal system allows the presentation of any error or bias to provide a fair chance for the accused party in criminal proceedings.

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  1. Delmas-Marty, M., & Spencer, J. R. (Eds.). (2002). European criminal procedures (Vol. 25).
  2. Dammer, H. R., & Albanese, J. S. (2013). Comparative criminal justice systems. Boston: Cengage Learning.
  3. Langbein, J. H. (2003). The origins of adversary criminal trial. Oxford: Oxford University Press.
  4. Levinson, D. (Ed.). (2002). Encyclopaedia of crime and punishment (Vol. 1). Sage Publications.
  5. RD Friedman. (1998). Thoughts from across the water on hearsay and confrontation. Crime law Review
  6. Van Caenegem, William, (1999). Advantages and disadvantages of the adversarial system in criminal proceedings. Law faculty publications. Paper 224. 
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