Which is better, an adversarial system of justice like that of United States, Canada, Australia, Hong Kong, India, and Britain or an inquisitorial system like that of France, Thailand, Japan, Germany, and (unexpectedly) Spain? According to Wikipedia the New York City Traffic Violations Bureau also has some inquisitorial characteristics.
On what basis should we compare the legal systems of two countries?
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Don’t want to sidetrack, but why would you not expect Spain to have an inquisitorial system?
Their chief weapon is surprise.
Well Japan’s conviction rate is over 99%, you can’t argue with those kinds of numbers!
I’ve said it before. While American policing (at all levels and organizations) and the justice system can have its problems, I can’t think of a country I’d rather be in if I was accused of a crime. Just the fact that someone can keep their mouth shut and make the state do all the work without it being considered prejudicial is such a departure from even other common law, adversarial systems.
I’m a little skeptical it is anymore than a theoretical difference.
Yeah in theory the judge in the US or UK is a neutral arbiter between the prosecutor and defense. But does that actually make much practical difference over a French judge who is actually leading the investigation to decide if the accusation is supported by the evidence.
I mean practically that is what the judge in the US is actually doing, even if theoretically they are just a neutral arbiter between the two sides
“Better”, how?
Higher conviction rate? Lower false conviction rate? Lower operating costs? Better dancer?
I would say: “Which system better accomplishes and furthers the cause of justice?”
That was my thought as well- in an inquisitorial system, the potential for someone getting an unfair trial due to bias or political reasons is higher, because the court itself is involved on the side of the prosecution, or can be.
In an adversarial system, it’s harder, but not impossible, as the prosecution and defense are theoretically on an equal footing, with the judge being more of an arbiter, not an actual participant in the search for the truth.
As I said, there have been straight up failures and travesties of justice in the American system. But I think there’s real value in having the finder of law and the finder of fact being two separate entities, especially with the finder of fact being a jury. I find those on both sides who don’t like the way the system works tend to be ignorant of just how abusive law has been historically.
Not all inquisitorial systems are alike. On the inquisitorial vs adversarial spectrum, Germany sits somewhere between France and America: Investigations are run by dedicated prosecutors; they need judicial warrants for many things but that doesn’t make it a French-style juge d’instruction. But witnesses are interrogated primarily by the judge, not by prosecution and defence.
Is there recourse if the judge does a bad job at this, either failing to ask follow-up questions, or bias, or anything like that? If the judge is deciding how deeply to dig on a specific point from a witness, how do they figure out what is the right amount of digging?
I’d say adversarial due to the dilution of power. Neither are perfect, but I think the concentration of that much power in the hand of the state in the case of an inquisitorial system is the recipe for a larger potential of abuse.
Usually judges will allow prosecution and defence to ask additional questions after the judge is done examining the witness, but this is usually short and does not amount to an Anglo-American style cross-examination. German criminal procedure actually allows for a cross-examination by prosecution and defence rather than the court, but this requires consent of both and is not done very often.
In case the presiding judge examines the witness and does a poor job at it, the parties can request permission to ask additional questions. If the presiding judge refuses, the parties can request a ruling of the entire bench (in cases with a multi-judge bench). If the request is still refused for no valid reason, that could be a ground for appeal against the final judgment later on; whether such an appeal will be successful depends on the circumstances of the case, mostly how reasonable it was to refuse the question.
The downside of a pure adversarial system is that much of the outcome rests on the skill of the respective advocates and the parties’ resources. Assuming the case is not clear-cut, the better lawyer typically wins. The UK has a court register of expert witness for personal injury cases which ensures some minimal level of neutrality. We can stand to adopt a similar system here.
“Better” is a subjective judgment. The fact is that our overburdened court system couldn’t possibly be involved in investigating the facts of a case. Even our police, who are designed to do just that, are overwhelmed by the myriad of cases they have to deal with. In other words, it simply isn’t practical and could never work.
The U.S. conviction rate is over 90% at the federal level. Like 90% plead guilty, 7-8% have charges dropped, and the rest (2%?) go to trial with like three quarters being convicted.
~Max
Yeah, conviction rate doesn’t tell you anything, without also knowing about indictment rate. Maybe they only indict when they’re already really, really confident.
The burden for indictment in the U.S. is probable cause, however it is unethical to bring an indictment unless the prosecutor is confident there will be evidence to prove the case beyond a reasonable doubt. Furthermore the process is not adversarial but one-sided, by design.
~Max
Anyway, my point is that the trial, while integral, is a very small part of the U.S criminal justice system. Pre-trial proceedings are much, much more important in the vast majority of cases. Particularly plea-bargaining. When you plea guilty, the judge doesn’t necessarily play the role of a mediator between adversaries.
~Max