Adversarial And Inquisitorial Systems Essay

The Adversarial System Essay

The system of criminal procedure primarily utilized in the United States is the adversarial system. The term “adversary” is easily interpreted to mean opposition. Our present criminal procedure pits two sides against each other to present their respective evidence and issues surrounding a criminal act. This paper will address the adversarial system and its expressed use in criminal court proceedings in the United States. Among the questions this paper will take into consideration are: Is the adversarial system the best way to achieve justice in the criminal courts of the United States; what those limitations are; how those limitations deliver justice; alternatives to the adversarial system; and the advantages or disadvantages of those alternatives.

Achieving JusticeWhen confronted with the issue of the best method to achieving justice in criminal court proceedings; one must understand what the adversarial system entails.

The use of a jury, the standard of evidence relied upon and the standard of proof, the cross-examining of witnesses and the ability to plead guilty, contribute greatly to reaching justice in the adversary system. They are all reasons which help the adversary system in accomplishing fairness in criminal trials. The adversary system is a feature of the common law system and was brought to Australia with England. It has adapted to the Australian legal system. It is a system of trial where, “…the two sides of the case try to present and prove their version of the facts and disprove the version of the other side.”(Cook, Creyke, & Geddes Hamer, 2005) A jury decides guilt or innocence, while a judge or magistrate guides the jury in areas of law, as well as deciding a suitable punishment for the defendant.

In criminal cases in the adversarial system of trial, justice is achieved through the use of evidence. In the adversarial system, the standard of evidence that can be used to support an argument is high. This is seen in the statement “… the rules of evidence are considerably stricter than the inquisitorial system.” (Wikipedia Encyclopedia, 2008) This shows that the evidence that will be accepted is of reasonable quality and that it will less likely be made up. The burden of proof in criminal cases lies with the prosecution. The standard that guilt must be proven is beyond reasonable doubt. This is so that there is less chance of an innocent person being convicted. The statement, “No matter how strong the prosecution’s evidence may be, if the magistrate or the jury has any reasonable doubt that he or she is guilty, the accused is entitled to be acquitted”( Nettheim, 2002) proves that there should be no doubt when convicting a person. The standard of proof and evidence that the adversary system employs are among the factors that make it the best system for achieving justice in criminal cases. Evidence...

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Theoretically, there is no longer any system in this world that is purely adversarial or purely inquisitorial. These legal systems have already evolved in an effort by the countries to improve their own criminal justice system. But for purposes of academic discussion, there are several known distinctions between the two legal systems.

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The Adversarial System which is the method used in the United States presumes that the truth can only be found if the litigants, the prosecution, and the defense, are in competition with each other. This system sees the court as a battlefield with either party seeking to be a victor. The prosecution aims to prove that the accused is guilty of the crime charged. They present documentary evidence and the eyewitnesses to prove that their claim is the truth. They also advance arguments and interpret laws in accordance with their interest. On the other hand, the accused does not have to prove anything at the initial stage of the trial because he has a constitutional presumption of innocence.

The Adversarial system believes that the responsibility for finding the truth should lie with the litigants, not to the judge. Thus, injury trials, the judge has a more limited role than in cases where there are no juries where the judge takes on a more active role. The role of the neutral and passive judge is only to ensure that the procedural rules are observed by excluding any irrelevant and improper evidence and ruling on objections and motions of the litigants. This system hopes that with its unique system of presenting evidence, direct examinations, cross-examinations, re-direct and re-cross-examinations, they could arrive at the truth.

On the other hand, the inquisitorial system, which was first developed by the Catholic Church during the medieval period, places the responsibility for ascertaining the truth in a legal controversy solely upon an impartial judge. The judge or the magistrate acts as the lead investigator who heads the investigation by the gathering of the facts, questioning the witness and the suspect and collecting the pieces of evidence. Unlike in the Adversarial System, the judge is not a passive recipient of information.He has a more active role as he supervises the gathering of evidence.

The role of the litigants and their representatives is very limited as their primary role is simply to assist the judge in ascertaining the truth. Although the lawyers of the litigants have an opportunity to conduct their questioning during the trial, this opportunity to conduct their direct examinations and cross examinations is very limited.


  • The Inquisitorial System. (2007) Retrieved 22 September 2007

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