Dr.

Ram Manohar Lohia National Law University,

Lucknow

ACADEMIC SESSION 2015-16

TOPIC: INQUISITORIAL SYSTEM VERSUS ADVERSARIAL SYSTEM

FINAL DRAFT

SUBMITTED TO: SUBMITTED BY:

Mr. MALAY PANDEY AMIT BANDHU

ASST. PROFESSOR (LAW) B.A. LL.B (Hons.)

8th SEMESTER

ROLL NO: 23
Contents
INTRODUCTION OF SYSTEMS IN CRIMINAL PROCEEDINGS .......................................................................... 3
INQUISITORIAL SYSTEM: ........................................................................................................................... 3
ADVERSARIAL SYSTEM: ............................................................................................................................. 3
HISTORICAL BACKGROUND ........................................................................................................................... 3
INQUISITORIAL TRIBUNALS IN COMMON LAW COUNTRIES ..................................................................... 4
THE ADVERSARY SYSTEM-HISTORY ............................................................................................................... 5
THE ADVERSARY SYSTEM-TODAY ................................................................................................................. 5
INQUISITORIAL SYSTEM- MEANING AND CONCEPT ..................................................................................... 7
ADVERSARIAL SYSTEM- MEANING AND CONCEPT ....................................................................................... 7
INQUISITORIAL SYSTEM ................................................................................................................................ 9
ADVANTAGES ............................................................................................................................................ 9
DISADVANTAGES....................................................................................................................................... 9
ADVERSARIAL SYSTEM ................................................................................................................................ 10
ADVANTAGES .......................................................................................................................................... 10
DISADVANTAGES..................................................................................................................................... 10
Adversarial and Inquisitorial Legal Systems ............................................................................................ 11
INDIA AND THE PREVALENT CRIMINAL PROCEDURE SYSTEM .................................................................... 11
The Adversarial System ........................................................................................................................... 11
THE DESIGN OF THE INDIAN JUDICIARY...................................................................................................... 12
The damage and the confusion............................................................................................................... 12
ADVERSARIAL AND INQUISITORIAL SYSTEM- A COMPARITIVE STUDY ....................................................... 12
ADVERSARIAL AND INQUISITORIAL SYSTEM - WHICH ONE A BETTER CHOICE? ......................................... 16
CONCLUSION............................................................................................................................................... 18
BIBLIOGRAPHY ............................................................................................................................................ 18
PRIMARY SOURCES: ............................................................................................................................... 18
SECONDARY SOURCES: ........................................................................................................................... 18

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INTRODUCTION OF SYSTEMS IN CRIMINAL PROCEEDINGS

INQUISITORIAL SYSTEM:
In this system, it is the judge who collects the evidence and puts up the question but he is not
partial. The character of judges is to collect the evidence and put the question before the court.

It depends on the collection of evidence by a Magistrate and therefore a conviction is more but I
recommend the adversarial system because concept of fair trial fairness to the accused is there in
the adversarial system.

Lack of coordination between the investigation and coordination is another problem which
makes things worse.

The system is utterly insensitive to the rights of the victim. The focus is on the accused and none
on the victim.

There is no law to protect the witnesses. Even the basic amenities like shelter, seating, drinking,
water, etc. are not provided. They spend so much and nobody bothers about it.

Inquisitorial systems are prevalent in Belgium, Netherland, France, Germany and Italy.

ADVERSARIAL SYSTEM:

In this system two parties are there and both are independent of each other. The character of
judge is to remain silent throughout. The quest for truth, there is no quest for truth in Cr. P.C. but
the conviction and the acquittal of the party is sound or not.

Adversarial system is prevalent in India, USA, and England.

HISTORICAL BACKGROUND
HISTORY OF THE PRINCIPLE OF INQUISITION IN GERMAN CRIMINAL LAW

Until the Medieval inquisition in the 12th century, the legal systems used in medieval Europe
generally relied on the adversarial system to determine whether someone should be tried and
whether that person is guilty or innocent. Under this system, unless people were caught in the act
of committing crimes, they could not be tried for them until they had been formally accused,
either by the voluntary accusations of a sufficient number of witnesses or by an inquest (an early
form of grand jury) convened specifically for that purpose. A weakness of this system was that
because it relied on the voluntary accusations of witnesses, and because the penalties for making
a false accusation were severe, would-be witnesses could be hesitant to actually make their
accusations to the court, for fear of implicating themselves. Because of the difficulties in
deciding cases, procedures such as ordeal or combat were accepted, though it is now generally
agreed that these procedures are not acceptable ways of finding truth or settling a dispute.

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Beginning in 1198, Pope Innocent III issued a series of decretals that reformed the ecclesiastical
court system. Under the new processus per inquisitionem (inquisitional procedure) an
ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant.
Instead, an ecclesiastical court could summon and interrogate witnesses of its own initiative, and
if the (possibly secret) testimony of those witnesses accused a person of a crime, that person
could then be summoned and tried. In 1215, the Fourth Council of the Lateran affirmed the use
of the inquisitional system. The council also forbade clergy from conducting trials by ordeal or
combat. As a result, in parts of continental Europe, the ecclesiastical courts operating under the
inquisitional procedure became the dominant method by which disputes were adjudicated. In
France, the parlements — lay courts — employed inquisitorial proceedings.

In England, however, King Henry II had established separate secular courts during the 1160s.
While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional
system, the secular common law courts continued to operate under the adversarial system. The
adversarial principle that a person could not be tried until formally accused continued to apply
for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna
Carta: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his
law, without credible witnesses brought for this purposes."

In the development of modern legal institutions which occurred in the 19th century, for the most
part, most jurisdictions did not only codify their private law and criminal law, but the rules
of civil procedure were reviewed and codified as well. It was through this movement that the role
of an inquisitorial system became enshrined in most European civilian legal systems. However,
there exist significant differences of operating methods and procedures between 18th century
ancient regime courts and 19th century courts; in particular, limits on the powers of investigators
were typically added, as well as increased rights of the defense.

It would be too much of a generalization to state that the civil law is purely inquisitorial and the
common law adversarial. Indeed the ancient Roman custom of arbitration has now been adapted
in many common law jurisdictions to a more inquisitorial form. In some mixed civil law
systems, such as those in Scotland, Quebec and Louisiana, while the substantive law is civil in
nature and evolution, the procedural codes that have developed over the last several hundred
years are based upon the English adversarial system.1

INQUISITORIAL TRIBUNALS IN COMMON LAW COUNTRIES

Administrative proceedings in many common law jurisdictions may be similar to their civil law
counterparts and be conducted on a more inquisitorial model. A good example are the many
administrative boards such as the New York City Traffic Violations Bureau, a minor tribunal that
deals with traffic violations where the adjudicator also functions as the prosecutor and questions
the witnesses; he or she also renders judgment and sets the fine to be paid.

These types of tribunals or boards can be found in most modern democracies. They function as
an expedited form of justice where the state agents conduct an initial investigation and the
1
< https://en.wikipedia.org/wiki/History_of_the_principle_of_inquisition_in_German_criminal_law > accessed on
19 march 2016

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adjudicator's job is to confirm these preliminary findings through a simplified form of procedure
that grants some basic amount of due process or fundamental justice in which the accused party
has an opportunity to place his or her objections on the record.

THE ADVERSARY SYSTEM-HISTORY

USA. Court-rooms have often been compared to battlefields or playing fields. The adversary
system by which legal disputes are settled in the US encourages the idea that legal controversies
are battles or contests to be fought and won using all available resources.

This modern Anglo-American adversary system developed gradually over several hundred years.
Early English jury trials were unstructured proceedings in which the judge might act as
questioner, inquisitor, or even prosecutor, as well as fact finder. Criminal defendants were not
allowed to have lawyers, to call witnesses, to conduct cross-examination. All types of evidence
were allowed, and juries, although supposedly neutral and passive, were actually highly
influenced by the judge's remarks and instructions. In fact, before 1670, jurors could be fined or
jailed for refusing to follow a judge's orders.

The late 1600s saw the beginning of a more modern adversarial system in England and its
American colonies. Juries took a more neutral position. Review of cases by appeal to a higher
court level, previously unavailable, became possible in some cases. By the 18th century, juries
assumed an even more independent position and began to function as a limit on governmental
and judicial abuse and corruption. The US Constitution recognized the importance of the jury
trial in a free society by establishing the right to a jury in the Constitution. The US Eigth
Amendment to the US Constitution also established the right to a jury in non criminal (civil) case
where “….the value in controversy shall exceed twenty dollars……

THE ADVERSARY SYSTEM-TODAY

In the Anglo-American adversary system, the parties to a dispute, or their advocates, square off
against each other and assume roles that are strictly separate and distinct from that of the
decision maker, a judge or more often a jury.

With its roots in the ideals of the American Revolution, the modern adversary system reflects the
belief that everyone is entitled to a day in court before a free, impartial, and independent judge.
Adversary theory holds that requiring each side to develop and to present its own proofs and
arguments is the surest way to uncover the information that will enable the judge or jury to
resolve the conflict.

In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately
examining the evidence presented by the parties with the objective of resolving the dispute
between them. The fact finder, Judge or Jury, must remain uninvolved in the presentation of
arguments so as to avoid reaching a premature decision.

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The “European Inquisitorial System”-A Different Approach: Most European, Asian, Middle-
Eastern, African and South/Central American countries employ the Inquisitorial System in which
a judge investigates the facts, interviews witnesses, and renders a decision. Juries are not popular
in an inquisitorial court, and those involved in the case Juries are not or only minimally involved
in the fact-finding process. The main emphasis in a so-called European system is the search for
truth, whereas in an Anglo-American courtroom, truth itself is secondary to the goal of reaching
the fairest resolution of the dispute.

It has been argued by many that the inquisitorial system, with its goal of finding the truth, is a
more just and equitable legal system. However, supporters of the adversary system maintain that
the truth is most likely to emerge after all sides of a controversy are vigorously presented.

They also point out that the inquisitorial system has its own deficiencies, including abuse and
corruption. European judges must assume all roles in a trial, including those of fact finder,
evidence gatherer, interrogator, and decision maker. Because of these sometimes conflicting
roles, European judges might prejudge a case in an effort to organize and complete it.
Inquisitorial courts are far less sensitive to individual rights than are adversarial courts, and
inquisitorial judges, who are government bureaucrats (rather than part of an independent judicial
branch), may identify more with the government than with the parties. Critics of the inquisitorial
system argue that it provides little, if any, check on government excess and that invites
corruption, bribery, and abuse of power.

In the Anglo-American case. The parties and their lawyers are responsible for gathering and
producing all of the evidence in the case. This challenge forces them to develop their arguments
and to present their most compelling evidence, and it also preserves the neutrality and passivity
of the fact finder. The adversary process is governed by strict Rules of Evidence which the Judge
must enforce to ensure fairness for both sides. These rules also help to ensure that the decision is
based only on the evidence presented. The structure of this adversary legal system naturally
encourages enthusiastic “zealous” advocacy by lawyers on behalf of their clients. There is a
lawyer’s code of ethics that supervise the conduct of lawyers and helps limit the pressure to try
to win by any means.

The adversary system has strong defenders as well as severe critics. The picture of the courtroom
as a battleground or playing field where contestants vie for victory is evident in the news media's
preoccupation with who is "winning" or "losing" or "scoring points" in such famous cases as the
1995 trial of O. J. SIMPSON, an actor, sportscaster, and former professional football player who
was tried for killing his former wife, Nicole Brown Simpson, and her friend Ronald Goldman.
The case was televised and became a big media event. Many felt that it was a sad picture of how
the adversary system (and money) hurt the search for justice. Others argue that justice was
served.2

2
<http://legal-dictionary.thefreedictionary.com/Adversary+System>accessed on 19 march 2016

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INQUISITORIAL SYSTEM- MEANING AND CONCEPT

The system emerged in France with the abolition of the doctrine of proofs whereby examining
magistrates were freed from the fetters of legal proofs. As a result, pretrial investigation
orinquisitor although remained crucial in the process, the magistrates were to conduct an active
investigation of the truth and evaluate the evidence according to his inner conviction, intime
conviction.

Inquisitorial system is a legal system where the court or a part of the court is actively involved in
determining the facts of the cases, as opposed to an adversarial system where the role of the court
is solely that of an impartial referee between parties. Inquisitorial systems are used in most
countries in Europe and Latin America. The inquisitorial system applies to questions of criminal
procedure as opposed to questions of substantive law; that is, it determines how criminal
enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor
the sentences that they carry. It is most readily used in many, but not all civil law system.
However, some jurists do not recognize this dichotomy ad see procedure and substantive legal
relationships as being interconnected and part of a theory of justice as applied differently in
various legal cultures.

In some jurisdictions the trial judge may participate in the fact finding inquiry by questioning
witnesses even in adversarial proceedings. The rules of admissibility of evidence may also show
the judge to act more like an enquirer than an arbiter of justice.

Although international tribunals intended to try crimes against humanity, such as the Nuremberg
Trials and the International Criminal Court (ICC), have generally used the version of the
adversarial system, they have also incorporated some key features of the inquisitorial system,
such as the use of professional judges and in the case of the ICC, the use of a screening pre-trial
chamber.

ADVERSARIAL SYSTEM- MEANING AND CONCEPT

The Anglo-American adversary system has evolved over several hundred years. Early English
jury trials were unstructured proceedings in which the judge might act as inquisitor or even
prosecutor as well as fact finder. Defendants in criminal trial were not allowed to have counsel,
call witness, conduct cross-examination, or offer affirmative defenses. All types of evidence
were allowed, and juries, although supposedly neutral and passive, were actually highly
influenced by the judge’s remarks and instructions. In fact, before 1670, jurors could be fined or
jailed for refusing to follow a judge’s directions.

The late 1600s witnessed the advent of a true adversarial system in both England and America.
Juries assumed a more neutral stance and institutionalization of appellate review, previously
unavailable, made a modest presence in some cases. By the eighteenth century, juries took a
stronger autonomous position as they began functioning as a restraint on governmental and
judicial abuse and corruption. The Framers of the US Constitution recognized the importance of

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the jury trial in a free society by specifically establishing it in the Sixth Amendment as a right in
criminal prosecutions.

Before the 1800s, English judges were still viewed as biased by their link with the Crown
while U.S. judges were often politically partisan. U.S. Supreme Court Chief Justice John
Marshall, who served from 1801 to 1835, established the preeminence and independence of the
Supreme Court with his opinion in Marbury v. Madiso3. This case established “the basic
principle that the federal judiciary is supreme in the exposition of the law of Constitution”
(Cooper v. Aaron)4. By the early 1800s, attorneys had risen to prominence as advocates and
presenters of evidence. Procedural and evidentiary rules were developed, which turned the focus
of litigation away from the arguments on minute points of law and towards resolution of
disputes. I the Anglo-American adversary system, the parties to a dispute or their advocates
square off against each other and assume roles that are strictly separate and distinct from that of
the decision maker, usually a judge or jury. The decision maker is expected to be objective and
free from bias. Rooted in the ideals of the American Revolution, the modern adversary system
reflects the conviction that everyone is entitled to a day in court before a free, impartial, and
independent judge. Adversary theory holds that requiring each side to develop and present its
own proofs and arguments is the surest way to uncover the information that will enable the judge
or jury to resolve the conflict.

In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately
examining the evidence presented by the parties with the objective of resolving the dispute
between them. The fact finder must remain uninvolved in the presentation of arguments so as to
avoid reaching a premature decision.

The Anglo-American requirement of an impartial and passive fact finder contrasts with the
requirements of other legal systems. For example, most European countries employ the
inquisitorial system, in which a judge investigates the facts, interviews witnesses, and renders a
decision. Juries are not in favour of an inquisitorial court, and the disputants are minimally
involved in the fact-finding process. The main emphasis in the European court is the search for
truth, whereas in an Anglo-American courtroom truth is ancilliary to the goal of reaching the
fairest resolution of the dispute. It has been suggested that the inquisitorial system with its goal
of finding the truth, is a more just and equitable legal system. However, proponents of the
adversary system maintain that the truth is more likely to emerge after all sides of a controversy
are vigorously presented. They also point out that the inquisitorial system has its own
deficiencies, including abuse and corruption. European judges must assume all roles in a
trial, including those of fact finder, evidence gatherer, interrogator, and decision maker. Because
of these sometimes conflicting roles, European judges may tend to prejudice a case in an effort to
organize and dispose of it. Inquisitorial courts are far less sensitive to individual rights than are
adversarial courts, and inquisitorial judges who are government bureaucrats (rather than part of
an independent judiciary), may identify more with the government than with the parties. Critics
of the inquisitorial system say that it provides little, if any, check on government excess and
invites corruption, bribery, and abuse of power.

3
Marbury v. Madison, 5 U.S. 137 (1803).
4
Cooper v. Aaron, 358 U.S. 1 (1958).

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The parties to an Anglo-American lawsuit are responsible for gathering and producing all the
evidence in the case. This forces them to develop their arguments present their most compelling
evidence, and also preserves the neutrality and passivity of the fact finder. The
adversary process is governed by strict rules of evidence and procedure that allow both sides
equal opportunity to argue their cases. These rules also help ensure that the decision is based
solely on the evidence presented. The structure of this legal system naturally encourages zealous
advocacy by lawyers on behalf of their clients, but the code of ethics governing the conduct of
lawyers is designed to curb the tendency to attempt to win by any means.

The adversarial system has staunch defenders as well as severe critics. The image of the
courtroom as a battle ground or playing field where contestants vie for victory, is evident in the
news media’s preoccupation with who is winning or losing or scoring points in such highly
visible cases as the 1995 trial of O. J. Simpson, an actor, sportscaster, and former professional
football player accused of killing his former wife Nicole Brown Simpson and her friend Ronald
Goldman.5

INQUISITORIAL SYSTEM

ADVANTAGES
At a point of time legal profession itself was abolished in France. In the reformed system,
lawyers have limited role.

The judge is oriented to seek the truth and thereby do justice. He can never loose sight of the
truth as he is alert to his conscience.

An Investigating Judge is involved in the investigation from the inception and the police
investigating the case have to obtain orders from the Investigating Judge from the very start on
all important matters. The suspect or his lawyers can make presentations to the Investigation
Judge from the inception. As a result of the above procedure, the issues relating to the trial are
examined at a much earlier stage.

The early involvement of the Investigation Judge reduces the chances of human rights abuses,
tampering of evidence, forced confessions and unnecessary imprisonment.

 The system quickens the process of trials and avoids delay.

 It allows for randomization over evidence requests in civil matters and this leads to
lowering of expected costs.

DISADVANTAGES

There is no presumption of innocence in criminal trial. However, presumption of innocence is

required; for example, in the 46 countries that are members of the Council of Europe, under

5
ibid

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Article 6 of the European Convention on Human Rights, and it is included in other human rights
documents. However, in practice it operates somewhat differently in different countries.

 Judges are also human beings and may commit an error. Subsequent finding of the real
truth is likely to trouble the conscience of the judge.
 It has been observed in France that the system which allows the judge to interrogate the
accused has failed to abolish third degree method. Dragnet viewers know this world
better.

ADVERSARIAL SYSTEM

ADVANTAGES
One of the basic principles associated with the adversarial system is the importance of securing
fundamental freedom of the innocent citizens promptly by the surest means of legal action. Thus,
the writ of Habeas Corpus can be conveniently invoked so that the accused must be taken to a
public court within a very short period of time, usually 24 hours, and the accusers must produce
their evidence then and there. In the context of right to trial by a jury at which jurors can in fact
even disregard the law if they think it would give an unjust conviction, the system promotes a
sense of justice and security. The accused cannot be tried on the same charge once found guilty.
To pinpoint the highlights of advantage side, the system throws open the following:

 The parties have the autonomy to decide the issues in dispute.

 The system respects individual autonomy and both parties are at liberty to harness the
power of self interest to unearth the best evidence and that truth is best discovered by
powerful statements on both sides of the question.
 Reduction of bias on the part of the judge.
 The procedure paints the fuller picture.
 The system is generally acceptable to the parties.

DISADVANTAGES
The author of the apocryphal Mirror of Justices first published in 1642 gives a list of one
hundred and fifty-five abuses in legal administration. To pinpoint major disadvantages of the
system the following can be counted:

 The system is endowed with contentious procedure, which turns litigation into a game.
The system thus promotes what Roscoe Pound called sporting theory of justice as
lawyers are interested in winning cases for their clients rather than seeking justice and
this eventually leads to cartelization of legal profession. The premise of this theory is that
truth will prevail in the clash of zealous adversaries. The sporting theory of justice, the
“instinct of giving the game fair play”, as Professor Wigmore has put it, is so rooted in
the profession in America that most people take it for a fundamental legal tenet.6

6
Wingmore, AN EXECUTIVE GUIDE TO MANAGING DISPUTES 54 (2009).

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  Low rate of conviction in criminal cases emboldens the criminal elements in the society.
 The system feeds the tendency, opportunity and temptation of falsification of evidence. It
turns witnesses, and especially

Adversarial and Inquisitorial Legal Systems

Canada and most countries that derive their legal systems from the English model use what is
called the adversarial legal system. The two great systems of law, the common law and the civil
law systems, both have differing procedures when a case goes to trial. The two approaches are
either adversarial or inquisitorial.

INDIA AND THE PREVALENT CRIMINAL PROCEDURE SYSTEM

The Adversarial System

Our system of justice is based on the adversarial model. The adversarial system implies that
two parties assume opposite positions in debating the guilt or innocence of an individual. In this
scenario, 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 and that evidence entered is done so according to established rules
and guidelines.

The basis of this approach in criminal matters in which two sides engage in debate and battle
about the guilt or innocence of an accused and since each side wants to win, then the debate will
foster a critical look at the issues and the calling of evidence to be examined by both parties. By
engaging in this discourse, the truth should emerge as the judge watches on. This means that the
roles played by the various court officers are very distinct. The defense counsel as one
adversarial party gathers the arguments to defend the client and attacks the credibility and
worthiness of the evidence presented by the crown. The crown prosecutor puts forth the
arguments on behalf of the crown or state and gathers and 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 judge not intervenes on any side except where procedural fairness
is jeopardized by either party.

The evidence and witnesses that are called are left up to the two arguing parties, the defense
counsel and the crown. The judge is not involved in what is presented to the court. If the crown
wishes not to call certain evidence or individuals as witnesses even though it may help shed light
on the case, the judge cannot intervene. This leaves the two parties in charge of the case and the
direction it takes.

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THE DESIGN OF THE INDIAN JUDICIARY
The Indian judicial system is designed on the adversarial pattern. The following provisions show
that the system is not inquisitorial:
 Section 101 and 102 of the Evidence Act clearly place the onus of proof on the parties
who make their respective allegations. If judges were to act like investigators the Act
would have placed the burden of discovery of truth on the judge.
 In the Commissions of Inquiry Act there is no such provision because it is for the judge
to find out the truth by his active involvement. He cannot stay aloof as an umpire. But at
the same at the end he cannot pronounce judgment but only submit a report.
 Section 138 of the evidence Act does not prescribe that the judge should put questions to
witnesses.
 Section 165 of the evidence Act no doubt empowers the judge to put questions. But
various authoritative pronouncements say that the judge must not put questions in an
inquisitorial manner [1969 MLJ -CRL page 4997) Judge must not descend into the arena.
 Section 151 c pc though gives wide discretion, "it cannot affect party’s substantial rights.
A judicial innovation is not an unbridled horse to be allowed to roam about freely in any
direction it likes at its pleasure" (AIR 1988 NOC 50 MP High court).
 As per the CPC where the party is a minor or insane, the court appoints a guardian as
litem or a court guardian. The court will not conduct the case on behalf of the disabled
person.

The damage and the confusion

By introduction of family courts, consumer courts and local adalaths, judges are given the right
to dominate the proceedings, thereby undermining the dignity of the individual. Some judicial
pronouncements under the rent control Act (AIR 1978 Supreme Court 22) which say that even if
the respondent remains exparte in an eviction proceeding, the rent controller must again satisfy
himself of the grounds of eviction have virtually made the judge into a bureaucrat in the garb of
adjudge. Judges continue to fix upset prices in court sales, though CPC never prescribed such a
procedure (1972- 2 ALT 52) and add to the woes of the decree-holder. While registering suits,
judges take all sorts of objections, which would be appropriate for the defendants to take after
the suits are numbered. Let us hope the policy makers realize the harm they are doing to the
society by such ill-conceived reforms and procedure.

ADVERSARIAL AND INQUISITORIAL SYSTEM- A COMPARITIVE STUDY

Adversary System: A method of deciding cases in which active and unhindered parties, usually
through their lawyers, contest with each other and present support in favor of their respective
positions, usually through the examination and cross-examination of witnesses and the
presentation of other evidence, to a neutral and independent decision-maker. In criminal cases,
this is often called the accusatorial system.

7
1969 MLJ -CRL page 499.

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Inquisitorial System: A method of deciding cases in which the judge or judges endeavors to
discover facts through questioning and taking testimony, while simultaneously representing the
interests of the government in a trial.

Adversarial systems Inquisitorial systems

Traditionally, there is little use of
judicial precedent (case law). This
means Judges are free to decide each
Binding force Previous decisions by higher courts are case independently of previous
of case law binding on lower courts. decisions, by applying the relevant
statutes. There is therefore heavier
reliance on comprehensive
statutes/codes of law.
The typical criminal proceeding is
divided into 3 phases: the investigate
phase, the examining phase, and the
trial.

In the investigative phase, a government

The responsibility for gathering
Investigation evidence rests with the parties (the
Police and the defence).
official (generally the public prosecutor)
collects evidence and decides whether to
press charges. Prosecutors carry out
investigations themselves or request
Police to do so. The prosecution can
give general instructions to the Police
regarding how particular cases are to be
handled and can set areas of priority for
investigations.

In some inquisitorial systems, a Judge

may carry out or oversee the
investigative phase.
The examining phase is usually
conducted in writing. An examining
Judge completes and reviews the written
record and decides whether the case
There is no examination phase, so an should proceed to trial.
Examining independent evaluation of the evidence
phase collected during investigation is left to The examining Judge plays an active
the trial. role in the collection of evidence and
interrogation of witnesses. In some
inquisitorial systems, the “legality
principle” dictates that prosecution must
take place in all cases in which

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 Adversarial systems Inquisitorial systems
sufficient evidence exists (ie, the
prosecutor or Judge has limited
discretion as to whether or not charges
will be brought).
As a result of the thoroughness of the
examining phase, a record of evidence
has already been made and is equally
available to the prosecution and defence
well in advance of the trial.
An adversarial system requires the
The main function of a trial is to present
prosecutor, acting on behalf of the
the case to the trial Judge and, in some
State, and the defence lawyer, acting
cases, the jury, and to allow the lawyers
on behalf of the accused, to offer their
to present oral argument in public.
version of events and argue their case
before an impartial adjudicator (a
The trial While there is no cross- and re-
Judge and/or jury).
examination of witnesses, witnesses are
still questioned and challenged.
Each witness gives their evidence-in-
chief (orally) and may be cross-
In Germany there is a preference for
examined by opposing counsel and re-
narrative testimony, in which the
examined.
witness gives their version of events
without shaping by questions from the
prosecution or defence.

Traditionally there is no ability for the

defendant to plead guilty.
Judges are required to direct the
courtroom debate and to come to a final
decision.
The Judge is a referee at the hearing. It
is the Judge’s function to ensure that
The Judge assumes the role of principal
the court case is conducted in a manner
interrogator of witnesses and the
that observes due process. The Judge
defendant, and is under an obligation to
decides whether the defendant is guilty
Role of the take evidence until he or she ascertains
beyond reasonable doubt (except in
trial Judge the truth.
jury trials where the jury performs that
and counsel
role), and determines the sentence.
It is the Judge that carries out most of
the examination of witnesses, arising
Lawyers are primarily responsible for
from their obligation to inquire into the
introducing evidence and questioning
charges and to evaluate all relevant
witnesses.
evidence in reaching their decision.

However, it is now accepted that the

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 Adversarial systems Inquisitorial systems
defense should have the right to confront
each witness during at least one stage in
the proceedings.
Juries are used in many cases. In New
Zealand, if the maximum sentence of
Juries are generally only used for the
Use of juries the charge is more than three months,
most serious cases.
the defendant has the right to elect trial
by jury.
Evidence which is prejudicial or of
little probative value, is more likely to
be withheld from juries (who don’t
have training on the weight that should
be given to certain evidence).
However, hearsay evidence is more
readily allowable if it is reliable.
The rules around admissibility of
evidence are significantly more lenient.
A significant category of inadmissible
The absence of juries in many cases
evidence is ‘hearsay’ evidence (with
alleviates the need for many formal rules
numerous exceptions). In New
of evidence. More evidence is likely to
Zealand, a ‘hearsay statement’ is
be admitted, regardless of its reliability
defined in the Evidence Act 2006 as “a
Rules of or prejudicial effect. Evidence is
statement that was made by a person
evidence admitted if the Judge decides it is
other than a witness and is offered in
relevant.
evidence at the proceedings to prove
the truth of its contents”.
In many inquisitorial systems, there is
no hearsay rule (eg, France, Belgium
At the heart of the hearsay rule is the
and Germany). It is up to the Judge to
idea that, if the court is to discover the
decide the value of such testimony.
truth, it is essential that parties have
the opportunity to verify the
information provided by the witnesses,
which is difficult to do if the court
receives evidence in writing or via a
third party (and are therefore unable to
cross-examine the person).
In both systems the accused is
protected from self-incrimination and
guaranteed the right to a fair trial.
In both systems the accused is protected
Rights of the
However, some commentators view from self-incrimination and guaranteed
defendant
adversarial systems as offering the right to a fair trial.
stronger protections for defendants due
to their interpretation of the right to
silence.

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 Adversarial systems Inquisitorial systems
The victim generally has a more
recognised role in inquisitorial systems
– they usually have the status of a party
Victims are not a party to to proceedings.
proceedings. Prosecutors act on behalf
of the State and do not represent the In some jurisdictions, victims have a
victim. formal role in the pre-trial investigative
Role of the stage, including a recognised right to
victim In New Zealand, victims can provide a request particular lines of inquiry or to
victim impact statement to the court at participate in interviews by the
sentencing, which the Judge must take investigating authority.
into account when determining the
offender’s sentence. At the trial, they generally have
independent standing and some
jurisdictions allow victims to be
represented by their own lawyer.
Civil law systems tend to have specialist
Adversarial systems have courts of courts (and specialist appeal courts) to
Organisation
general jurisdiction available to deal with constitutional law, criminal
of the courts
adjudicate a wide range of cases. law, administrative law, commercial
law, and civil or private law.

ADVERSARIAL AND INQUISITORIAL SYSTEM - WHICH ONE A BETTER

CHOICE?

An inquisitorial system, common in civil law countries, is an alternative model to the adversarial
system used in common law countries including New Zealand. The inquisitorial system is
generally described as a system that aims to get to the truth of the matter through extensive
investigation and examination of all evidence. The adversarial system aims to get to the truth
through the open competition between the prosecution and the defence to make the most
compelling argument for their case. Critics of the adversarial approach argue that the pursuit of
winning often overshadows the search for truth.

Neither system is inherently superior. In fact there are many shared features and many countries
incorporate features of both systems, having experienced a degree of convergence over the last
80 years.

An option for New Zealand may be to incorporate aspects of inquisitorial systems within our
adversarial system, as already happens in some courts and tribunals, rather than to adopt an
entirely new approach.

An inquisitorial system is a legal system where the court or a part of the court is actively
involved in investigating the facts of the case, as opposed to an adversarial system where the role

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of the court is primarily that of an impartial referee between the prosecution and the defense.
Inquisitorial systems are used in some countries with civil legal systems as opposed to common
law systems. Also countries using common law, including the United States, may use an
inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic
violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically
unrelated to the distinction between a civil legal and common law system. Some legal scholars
consider "inquisitorial" misleading, and prefer the word "non-adversarial". The inquisitorial
system applies to questions of criminal procedure as opposed to questions of substantive law;
that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for
which one can be prosecuted, nor the sentences that they carry. It is most readily used in
some civil legal systems. However, some jurists do not recognize this dichotomy and see
procedure and substantive legal relationships as being interconnected and part of a theory of
justice as applied differently in various legal cultures.

In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning
witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow
the judge to act more like an inquisitor than an arbiter of justice.8

8
<https://en.wikipedia.org/wiki/Adversarial_system>

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CONCLUSION

Neither system is inherently superior. In fact there are many shared features and many countries
incorporate features of both systems, having experienced a degree of convergence over the last
80 years. On most counts, though, we think the system of adversaries beats the system of
inquisitors. We feel that the inquisitor has less incentive to probe for every shred of evidence,
and that argument for and against leads to better justice than inquisition. Each of these systems
come with their advantages and disadvantages. A combination of all the suitable and desirable
features apt for civil law and common law countries of both the criminal procedure systems
would be just perfect. To exemplify it there is an option for New Zealand may be to incorporate
aspects of inquisitorial systems within our adversarial system, as already happens in some courts
and tribunals, rather than to adopt an entirely new approach.

BIBLIOGRAPHY

PRIMARY SOURCES:

 Textbook on Legal Methods, Legal Systems & Research, Tushar Kanti Saha
 Adversarial versus Inquisitorial Justice (Psychological Perspectives on Criminal Justice
systems), editors-Van Koppen,peter, Penrod, Steven D (eds)
 An Introduction to Comparative law, K Zweigert
 Maintaining the adversarial system: The practice of allowing jurors to question witnesses
during trial, Kirsten DeBarba (2002)

SECONDARY SOURCES:

 http://chatt.hdsb.ca/~mossutom/law/Handouts/Unit%203-Handout-
Adversarial%20and%20Inquisitorial%20Legal%20Systems.html
 http://www.justice.govt.nz/publications/global-publications/a/alternative-pre-trial-and-
trial-processes-for-child-witnesses-in-new-zealands-criminal-justice-system/appendix-b-
a-comparison-of-the-inquisitorial-and-adversarial-systems
 www.westlawindia.com
 International Journal of Law in Content 2011, Civil Justice Quarterly.
 http://legal-dictionary.thefreedictionary.com/Inquisitorial+System
 http://mercantilelaws.blogspot.in/2012/07/difference-between-adversarial-and.html

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