Explain adversarial and inquisitorial trial systems with there main features and distinguish between typical adversarial and inquisitorial systems

Question 01: Explain adversarial and inquisitorial trial systems with there main features and distinguish between typical adversarial and inquisitorial systems

Introduction:

The terms adversarial and inquisitorial are used to describe models of justice systems. In reality these terms have no simple or precise meaning. Neither system is inherently superior. The adversarial system used in common law countries and inquisitorial system is used in civil law countries.

Adversarial and Inquisitorial Legal Systems:

The Adversarial System: An adversarial system is that where the court act as a referee between the prosecution and defense. The whole process is a contest between two parties. As regard crime the two parties are the state and the person accused. In this process the judge is required to be neutral at the contest unfolding before him or her. The role of the judge in this arrangement is to ensure the trial proceeds according to the procedural rules of trial or due process of law.

Our system of justice is based on the adversarial model. The defense lawyers defend there client and attacks the credibility and worthiness of the evidence presented by the prosecution. The prosecutor presents the evidence pointing that the accused has committed an offence. The judge is the referee and arbitrator on issues related to clarifying what the law is. The judges not intervene on any side except where procedural fairness is jeopardized by either party.

Features of Adversarial system:

1. In adversarial system each party is responsible for presenting their case though legal representative before the court.
2. The judge act as an impartial arbitrator to ensures that the trial is conducted in accordance with the rules of evidence and procedure.
3. Strict rules of evidence and procedure are followed in adversarial system. Hearsay evidence is very rarely admitted to prove a fact.
4. In adversarial system the burden of proof is on the party making the allegation and the defendant maintain presumption of innocence.
5. The court may convict an accused on the basis of his confessional statement with out conducting trial in adversarial system.
6. It allows private litigant to settle there dispute amicable out side the court during the trial process.

The Inquisitorial System: The inquisitorial system is the common procedural approach in civil law civil law system or continental law system. It aims to attain justice with the composite effort of the prosecutor, the police, the defense lawyer and the court. In an inquisitorial system, a judge is actively involved in the preparation of evidence along with the police. The judge questions witnesses in depth and can call witnesses to appear while prosecution and defence parties can ask follow up questions.

The judge plays the central role in finding the truth and all the evidence that either proves the innocence or guilt of the accused before the court. The accused must help to the prosecutor and the court to attain the justice. In inquisitorial system the court itself is active to secure justice, legal representation from the side of accused is not regarded indispensable.

Features of inquisitorial system:

1.      The judge is much more active in inquisitorial system and is involved in decisions making about the:

•   Evidence which is to be presented at the trial.

•   Legal issues raised at the trial and

•   Examination of witnesses.

2.      The strict rules of evidence and procedure do not apply. For example, the court can consider hearsay evidence. This sort of evidence is not subject to cross-examination.

3.      In inquisitorial system, the parties do not have control over the witness and particular piece of evidence which is damaging to their case.

4.      The hearing takes the form of an enquiry to find the truth and the court conducts the enquiry until it is satisfied that it has found the truth.

5.      In an inquisitorial system, discretion is much more limited.

•  Distinction between adversarial and inquisitorial systems:

The following table outlines contains the fundamental differences between typical adversarial and inquisitorial systems:

No	Adversarial System	Inquisitorial System
1.	An adversarial system aims to get the truth though the open competition between the prosecution and defense.	An inquisitorial system is generally aims to get the truth though extensive investigation and examination of all evidence.
2.	An adversarial system all parties determine what witness they call and nature of the evidence they give. The court overusing the process by which evidence is given.	In inquisitorial system, the conduct of the trial is hand of the court. The trial judge determines what witness to call and order in which they are to be heard.
3.	In adversarial system previous decisions by higher courts are binding on lower courts.	There is little use of judicial precedent. This means Judges are free to decide each case independently.
4.	In an adversarial system the role of lawyers is active.	In an inquisitorial system the role of lawyers is passive.
5.	In an adversarial system the role of judges are merely passive in nature.	In an inquisitorial system the role of judges are very active.
6.	The judge pronounces judgment depending on the hearing, evidence or on the basis of examination and cross examination.	The judge plays an active rule for questioning and hearing the parties directly.
7.	In an adversarial system, the judges have discretion power but that is not wide by the evidence.	In an inquisitorial system, the judges have wide discretion power.
8.	In an adversarial system all reference are presented by the respective lawyer of both the parties.	In an inquisitorial system reference also presented by the judge and they play an active rule.
9.	The case management depends upon the lawyers of both the parties and they can get unfettered opportunity for the case management upon there own wishes.	The case management depends upon the judges and the judges fixes the term for disposal of any case.
10.	Repeated time petition (common practice) is permitted at the time of continuance of the case. So delay occurs in disposal of any cases.	The main object of this system is to reduce the time for disposing a case and to ensure speedy justice.

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