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Adversarial System vs. Inquisitorial System

From the online encyclopedia -

The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates representing their party's positions and not on some neutral party, usually the judge, trying to ascertain the truth of the case.

The inquisitorial system that is usually found on the continent ofEurope among civil law systems (ie. those deriving from the Roman orNapoleonic Codes) has a judge or a group of judges who work together whose task is to investigate the case before them.

The adversarial system also disposes of the canard whereby lawyersare often asked how they can represent someone if they believe that person to be guilty (or innocent for that matter, although this might be a more difficult position): counsel must not deceive thecourt but his client is entitled to have the best presentation ofthe case laid before the tribunal and to have the evidence fully tested. As an accused is not compelled to give evidence in a criminal adversarial proceeding, he may not be questioned by prosecutor orjudge unless he chooses to do so. However, should he decide to testify, he is subject to cross-examination and can be found guiltyof perjury. As the election to maintain an accused person's 'rightto silence' prevents any examination or cross-examination of thatperson's position, it follows that the decision of counsel as to what evidence will be called is a crucial tactic in any case in theadversarial system and hence it might be said that it is a lawyer'smanipulation of the truth.

Certainly, it requires the skills of counsel on both sides to be fairly equally pitted and subjected toan impartial judge.Peter Murphy in his Practical Guide to Evidence recounts aninstructive example. A frustrated judge in an English (adversarial)court finally asked a barrister after witnesses had producedconflicting accounts, 'Am I never to hear the truth?' 'No, my lord,merely the evidence', replied counsel.It has also been argued that a trial by a jury of one's peers may bemore impartial than any government paid inquisitor and a panel of his peers. In the United States the right to a trial by a jury of one's peers who are common citizens is guaranteed by the UnitedStates Constitution. Furthermore, some countries with an inquisitorial system do use jury trials for some categories of crime. Interestingly, some countriessuch as Japan before 1943 which used to have a right to jury trial,rarely used them, as there is a popular belief that any defendantwho requests a jury trial has a case that is so weak that they arewilling to risk pleading their case before strangers rather than professional judges. Hence, jurors in those countries are very unsympathetic toward defendants. (Jury system in Japan was suspendedin 1943. In 2004, whole new lay-judge system was enacted in Japan and will be installed in 2009. In this system, 6 jurors and 3 judgeswill discuss and judge a case together.)

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