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Inquisitorial System

adversarial defendant judge criminal

A method of legal practice in which the judge endeavors to discover facts while simultaneously representing the interests of the state in a trial.

The inquisitorial system can be defined by comparison with the adversarial, or accusatorial, system used in the United States and Great Britain. In the ADVERSARY SYSTEM, two or more opposing parties gather evidence and present the evidence, and their arguments, to a judge or jury. The judge or jury knows nothing of the litigation until the parties present their cases to the decision maker. The defendant in a criminal trial is not required to testify.

In the inquisitorial system, the presiding judge is not a passive recipient of information. Rather, the presiding judge is primarily responsible for supervising the gathering of the evidence necessary to resolve the case. He or she actively steers the search for evidence and questions the witnesses, including the respondent or defendant. Attorneys play a more passive role, suggesting routes of inquiry for the presiding judge and following the judge's questioning with questioning of their own. Attorney questioning is often brief because the judge tries to ask all relevant questions.

The goal of both the adversarial system and the inquisitorial system is to find the truth. But the adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it, whereas the inquisitorial system seeks the truth by questioning those most familiar with the events in dispute. The adversarial system places a premium on the individual rights of the accused, whereas the inquisitorial system places the rights of the accused secondary to the search for truth.

The inquisitorial system was first developed by the Catholic Church during the medieval period. The ecclesiastical courts in thirteenth-century England adopted the method of adjudication by requiring witnesses and defendants to take an inquisitorial oath administered by the judge, who then questioned the witnesses. In an inquisitorial oath, the witness swore to truthfully answer all questions asked of him or her. The system flourished in England into the sixteenth century, when it became infamous for its use in the Court of the STAR CHAMBER, a court reserved for complex, contested cases. Under the reign of King Henry VIII, the power of the Star Chamber was expanded, and the court used torture to compel the taking of the inquisitorial oath. The Star Chamber was eventually eliminated as repugnant to basic liberty, and England gradually moved toward an adversarial system.

After the French Revolution, a more refined version of the inquisitorial system developed in France and Germany. From there it spread to the rest of continental Europe and to many African, South American, and Asian countries. The inquisitorial system is now more widely used than the adversarial system. Some countries, such as Italy, use a blend of adversarial and inquisitorial elements in their court system.

The court procedures in an inquisitorial system vary from country to country. Most inquisitorial systems provide a full review of a case by an appeals court. In civil trials under either system of justice, the defendant, or respondent, may be required to testify. The most striking differences between the two systems can be found in criminal trials.

In most inquisitorial systems, a criminal defendant does not have to answer questions about the crime itself but may be required to answer all other questions at trial. Many of these other questions concern the defendant's history and would be considered irrelevant and inadmissible in an adversarial system.

A criminal defendant in an inquisitorial system is the first to testify. The defendant is allowed to see the government's case before testifying, and is usually eager to give her or his side of the story. In an adversarial system, the defendant is not required to testify and is not entitled to a complete examination of the government's case.

A criminal defendant is not presumed guilty in an inquisitorial system. Nevertheless, since a case would not be brought against a defendant unless there is evidence indicating guilt, the system does not require the PRESUMPTION OF INNOCENCE that is fundamental to the adversarial system.

A trial in an inquisitorial system may last for months as the presiding judge gathers evidence in a series of hearings.

The decision in an inquisitorial criminal trial is made by the collective vote of a certain number of professional judges and a small group of lay assessors (persons selected at random from the population). Neither the prosecution nor the defendant has an opportunity to question the lay assessors for bias. Generally, the judges vote after the lay assessors vote, so that they do not influence the conclusions of the lay assessors. A two-thirds majority is usually required to convict a criminal defendant, whereas a unanimous verdict is the norm in an adversarial system.

The inquisitorial system does not protect criminal defendants as much as the adversarial system. On the other hand, prosecutors in the inquisitorial system do not have a personal incentive to win convictions for political gain, which can motivate prosecutors in an adversarial system. Most scholars agree that the two systems generally reach the same results by different means.

FURTHER READINGS

Moskovitz, Myron. 1995. "The O.J. Inquisition: A United States Encounter with Continental Criminal Justice." Vanderbilt Journal of Transnational Law 28.

Sward, Ellen E. 1989. "Values, Ideology, and the Evolution of the Adversary System." Indiana Law Journal 64.

User Comments

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over 3 years ago

I LIEK MUDKIPZZZZZZZZZZZZZ

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almost 2 years ago

this is really usefull .i am glad to see your post.you have discussed it in a well manner.Essay Grading System .thanks

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over 3 years ago

I ws informed that civil law, related to the Inquisitorial System, was based on the "Roman Codex". In the 6th Century, Emperor Justinian updated it (creating the Justinian Code), and then French and German jurists adapted the Justinian Code into their own systems much later, making the "Napoleonic Code". Then it spread through the World by French conquests in Africa, Asia, etc.



...Just saying...

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almost 4 years ago

it is true that inquisitoral system is very important alternative to aplly for judicial review and to preffer in our countries especially african countrie because itis very cheap rather than adversarial system.

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over 1 year ago

wais02800[v270[214[selectiveservices[7021[workforce[7021[am/pm[ed27cm[13458702102081972

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almost 3 years ago

Thanx.Inquisitorial is much better

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over 3 years ago

HURRRRRRRRRRRRRRRRRRRRRRR

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over 6 years ago

The assertion that the inquisitorial system was adopted in Europe after the French Revolution is manifestly incorrect. I would see it as having been instigated by Lotario de Signy (Pope Innocent III) at around the same time as Magna Carta.



There is a German saying that "without truth there can be no justice" and you don't have to be a Rhodes Scholar to see the correctness of this. By and large the terribly corrupted Australian adversarial system almost never reveals the truth.



Can you point me toward any body in Australia that is working toward changing the current system?

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about 5 years ago

I find the contribution so wonderful and educative. i recomend the inquisatorial system for nigeria in view of the current judicial review in national assemly.

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over 5 years ago

hear, hear Jesse ... found this to be a good, short and enlightening comparison of the two legal systems being discussed... for background reading needed asap i thought it did pretty well!

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over 5 years ago

Thank you Jesse and Kristin! Even if a mistake was made big deal, the rest of you seriouly need to get a life.

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over 5 years ago

What I don't understand is why everyone on here is taking everything so seriously. Someone wrote a comment, so what? Why are you all attacking each other?

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about 6 years ago

i believe all of your comments (excluding mikki) happen to be quite falice in that not one of your premises logically argue the above work, yet defiantly attack the authors character and not his/her work. I would love to see any one of you try to write the same essay, at this length, half as well as this author did. It's time to open your eyes people - there's more to life then this.

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about 6 years ago

'Mikki' i can only assume your law essay was of a general nature (and quite possibly being graded at a third grade level). This essay makes no note of the significant reforms and changes that have been undertaken by civil code countries such as France. In fact there are claims (that are unreferenced of course!) made by the author in several paragraphs that are incorrect and in direct conflict with articles set out in statutes such as 'the code of criminal procedure' of France.



Whilst this essay might be interesting to read, its academic worth rates on the same level as say, the factually unreliable Wikipedia. I beg that in future (before you attempt to shut down people who comment on the inaccuracies of poorly written articles such as the one above) you actually have some knowledge in the field that it refers to.



God Bless.

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about 6 years ago

Is it not a shame that anyone who chooses to post a comment on this page feels the need to assert that they are correct and any other person who posts is simply an idiot?
And I think the word you are looking for, mcgee, is pomposity. Pompousness may be technically correct, but it makes you sound incredibly childish, and neither you nor DeVaney need any help in that field.

To the writer of the article, my sincere thanks. I don't know how I would have written my law essay without you. :)

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over 6 years ago

De Vaney,

The first sentence of the 4th paragraph says that the catholic church first developed the inq. system in the midieval period. Your pompousness is outstripped only by your inability to grasp key facts.