Inquisitorial trial system.
An alternative to the adversary trial operates in civil law countries. The inquisitorial system of trial is a trial conducted as an inquiry. The inquisitorial trial is, in virtually all aspects, controlled and conducted by an impartial judge. The court calls witnesses. The judge determines the order of trial and conducts most of the examinations. If experts are needed, it is the judge who decides which experts to call and conducts the initial examination. The trial proceedings are conducted as a fact-finding process. They tend to be less formal and less confrontational than an adversary trial. There also tends to be fewer rules of procedure and evidence than in the adversary system.
The idea that an offender is guilty until proven innocent is sometimes given as a feature of the inquisitorial trial. This is not always so. Key differences between the inquisitorial trial and the adversary system are the extent of pre-trial hearings and the role of the judge. Because of the extensive pre-trial procedures under an inquisitorial system, the accused has several opportunities to establish their innocence before trial. Consequently, only the strongest cases reach the trial stage. This may be why the system sometimes gives the impression of a presumption of guilt.
Inquisitorial systems vary from country to country, and it is difficult to generalise about their procedures. Nonetheless, most contain the following elements:
Aldous, Jules. Making and Breaking the Law. pp. 437.
The idea that an offender is guilty until proven innocent is sometimes given as a feature of the inquisitorial trial. This is not always so. Key differences between the inquisitorial trial and the adversary system are the extent of pre-trial hearings and the role of the judge. Because of the extensive pre-trial procedures under an inquisitorial system, the accused has several opportunities to establish their innocence before trial. Consequently, only the strongest cases reach the trial stage. This may be why the system sometimes gives the impression of a presumption of guilt.
Inquisitorial systems vary from country to country, and it is difficult to generalise about their procedures. Nonetheless, most contain the following elements:
- Reliance on code provisions rather than case precedent
- Rules to exclude evidence
- Investigation and pre-trial procedures
- No pleas of guilty
- Trials
- Appellate procedures
Aldous, Jules. Making and Breaking the Law. pp. 437.
Task.
Summarise the above features of inquisitorial features in a table.
Main principles of Inquisitorial trial system.
- Responsibility for the investigation rests not with the parties to the dispute but the adjudicator (ie magistrate)
- The Inquisitor takes a key role in pre-trial procedure, collects evidence from witnesses etc
- The number of cases that go to trial reduced, because the inquisitor will have a good idea (on the evidence) whether there is likely to be a guilty verdict or one party is in the wrong.
- The rules of evidence are less rigid. Virtually anything relevant to the case can be used.
Advantages of the Inquisitorial trial system.
- Better expertise in gathering information, an experienced judge/magistrate will try to get all relevant information. In adversarial system parties only seek evidence that helps their case.
- Parties have cases resolved more quickly, inquisitor can compel the production of evidence. In adversarial system parties often use stalling tactics.
- More relaxed rules of admission of evidence allows speedier resolution of the matter, stops parties manipulating rules of evidence to frustrate/stop search for the truth.
The Inquisitorial model has a greater reliance on codified law as compared to Australia’s/Britain’s common law. Aspects of the Inquisitorial model have been incorporated into Australia's justice system, mainly in Alternative Dispute Resolution (ADRs) such as tribunals.
Task.
Complete the 'Inquisitorial legal system' worksheet.