Which is superior, an adversarial or an inquisitorial system of justice?

Great Debates
21

Furthermore, much of the justice system is not criminal: there’s also the civil side to be considered.

I pulled some budget trend data of the US Department of Justice from the internet, for 2002. I don’t know whether the qualitative categories include judges: I’m pretty sure they include attorneys. State and local isn’t included, nor are private litigation costs. The data is suggestive and probably misleading in some ways: caveat lector:

2002 Federal Department of Justice Budget, selected line items ($millions)

Criminal                           128
Tax                                 75
Civil                              170
Environment, Including Superfund   100
Civil Rights                       101
Anti-trust                         131

To comprehensively address the OP, each category needs to be considered separately. List does not include budgeting for immigration and naturalization, and I’m not sure whether it excludes “Interagency Crime and Drug Enforcement”. It probably excludes Customs Service and Bureau of Alcohol, Tobacco and Firearms, which are part of the Treasury Department. I’m not even clear whether the above figures include the Judiciary: I would guess no.

So the OP’s question as stated isn’t just about criminal justice.

The OP does ask for some question framing: “On what basis should we compare the legal systems of two countries?”

I wondered about the Netherlands and learned this from wikipedia, emphasis added:

The court system follows the traditional hierarchical pattern. It is largely based on that of France: the state rather than the individual initiates legal proceedings and Administrative justice is dealt with separately from civil or criminal justice. In the Netherlands, there is also no jury system. The judiciary is independent and judges can only be removed from office for malfeasance or incapacity.

Stay out of trouble
I found a citation by a law professor from Gresham College in Central London: Which is better: adversarial or inquisitorial?.

My observations/editorializing:

  • The Brits tend to spend about 15 times more on legal aid than continental Europeans. In Britain, cost of defense is about 5 times the cost of prosecution: in Europe cost of defense is a quarter that of prosecution.
  • The Brits tend to have higher incarceration rates and lower conviction rates…
  • …according to a study that’s 20 years old and overtaken by recent developments.
  • Reports of aggressive police questioning are met with a Gallic shrug in France, relative to Britain.
  • IOW, most studies of the inquisitorial system focus on France, which conflates cultural factors specific to that country.

I’m not sure why Scotland has so many public prosecutors:

22

Is there anyone in the thread who is a citizen of a country with an inquisitorial system?

Personally, despite being a lifelong newspaper reader and at least moderately well read, I do not know comparative legal systems anywhere near well enough to answer the thread question.

What about the mental health court that Juan Merchan runs on Wednesdays instead on presiding over the Trump trial? It sounds rather good to me, and also sounds inquisitorial, but just reading a few newspaper articles isn’t enough to know for sure. Here is one:

A Look at the Judge

23

“Problem- solving” courts in general are neither exactly adversarial nor inquisitorial. There isn’t any trial or questioning and defendants voluntarily participate. In some, there is a plea agreement before they participate, so that they will have a misdemeanor conviction if they successfully complete the program but a felony if they fail to complete the program. In others, adjudication is deferred and if the program is completed, all charges are dismissed.

Here’s a description of Justice Merchan’s court.

24

Citizen, no (not yet), but a long-term resident, yes. I’m in Luxembourg, where the judicial system is very different from what I was used to back in the States. Judges are independently nominated and confirmed by the panel of existing judges, rather than being elected directly or named by elected officials; there are no juries; there are no punitive damages; there’s no formal discovery phase for the production of evidence the way you understand it in the US; and on and on. You can find an excellent and thorough summary here if you want to do the reading.

Money quote:

25

I don’t know enough about how trials work in other countries to have a good opinion, but i have a very low opinion of how they work in the US. I think there’s way too much emphasis on winning and far too little on actually finding the truth. “Having the better lawyer” matters too much. Too much information is hidden from the jury. Hell, the prosecution can hide exculpatory evidence. Bad science gets too much play. I am not an expert on our system, but i saw a lot of trials from the perspective of an insurance professional, both my uncles were lawyers, i know many people who have served on juries, and my father declined to work as an expert witness in medical cases because he knew that his job doing that was to twist the evidence. (He did serve once in the UK, after being assured that he was allowed, even encouraged, to speak what he believed to be the truth.)

I don’t know if other countries do it better. But i think there’s a lot of room for improvement.

26

Cite?

The U.S. Supreme Court has ruled that withholding exculpatory evidence violates the defendant’s constitutional right to due process. U.S. v. Bagley, 473 U.S. 667 (1985); U.S. v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963).

~Max

27

You know, thinking about it, my “source” suggests that it’s illegal. If you read articles about someone who was falsely convicted and rotted in prison for a decade, the article often mentions that the prosecution knew x and didn’t say so. And sometimes that’s now being presented as a reason to let the guy go.

But it also seems to be a thing that happens. Maybe it’s inevitable that the police think their job is to imprison the person they caught, and no set of laws would prevent that.

I am very jaded. I spent a year and a half serving every Wednesday on a grand jury investigating allegations of police corruption. And there was a hell of a lot of corruption.

28

German here, and one who actually sat on the juges’ bench as a lay judge (Schöffe), one of two lay judges with three professional judges.

The judge/the bench has no role in the case before the indictment is brought by the prosecuction. At that point the professional judges (the lay judges only are part of the actual trial) decide whether the prosecution’s case is strong enough to go to trial.

Some differences to what my impression, from media and dramas, is about US criminal trials:

  • Being arrested is not a necessary part of a German criminal prosecution. I can be caught red-handed stealing something, show ID to the police, refuse further questions, be indicted, tried and be told to report at a given date at the prison, all without being arrested at any point - provided the crime is not one of a catalog of very serious crimes, I am not a flight risk and I am also not judged a risk of doing away with evidence or influencing witnesses when at large.

  • Prosecutors are required by law to diligently search also for evidence in favour of the suspect.

  • Witnesses are not formally witnesses for prosecution or defence; they are nominated by prosecution or defence but then they are the court’s witnesses. So there is no examination by ‘their’ side and cross-examination by the other, but a testimony elicited by the court.

  • There is no ‘plea’, but rather the accused either remains silent or testifies to the facts of the case (or testifies to a subset of the facts and remains silent about other facts if he so chooses). There is no way to bypass the evidence phase as with a guilty plea; if the accused chooses to fully confess the evidence phase still goes ahead but the court may dispense with some witnesses (esp. victims if their testimony would be traumatic). The difference between the accused’s testimony and a witnesses testimony is that the accused is allowed to testify selectively, and is also allowed to lie without legal penalty. With accused who are at risk of letting their mouth run away with them, the defence often prefers to read out a written statement, of the facts alleged by the accused, on behalf of the accused, which serves in lieu of oral testimony then.

  • Testimony by witnesses typically is not elicited in a question-and-answer format, but rather the witness is encouraged to testify as a narrative (typically a chronological narrative), with relevant facts occasionally teased out by questions from the bench, then prosecution and defence asking follow-up questions they think may help their case.

  • Witnesses in the vast majority of cases are not sworn in. In some cases they are sworn in after their testimony on application of defence of prosecution; this indicates that that party doubts the veracity of the witness and wants to put pressure on the witness to recant before risking the higher penalty for lying under oath vs. lying not under oath.

  • If witness or expert witness testimony shows that further evidence may be needed not only prosecution or defence, but also the bench may call additional witnesses or expert witnesses. This sometimes happens esp. when the court thinks the defence may have overlooked something. (I have at one point as a lay judge prevailed on the bench to call an expert witness to the danger of a type of high-voltage shocker; the expert witness made measurements, with sterling devotion to duty shocked himself several times, and the outcome was that the shocker was not as dangerous as the advertising language, naming an open-circuit voltage that was not realistic given the insulation used, led people to believe)

  • Witnesses’ privilege to refuse testimony extends not only to near relatives, spouses and ex-spouses of the accused, but also to their fiancé(e)s. This sometimes leads to prosecutors becoming unlikely Cupids, with a witness all of a sudden turning out to have become engaged to the accused.

29

My problem with an adversarial system is that there are two “teams”, each with a proverbial dog in the fight.

IMHO this is a bad thing. I wonder why no system has ever been developed that works like a crash investigation. For example, suppose someone has been murdered. Investigators who are relevant subject matter experts would do the investigation without having favourite outcomes.

30

Thank you for an excellent post.

As you must know, a high-profile German trial began on Tuesday that might be seen as as a test of your system:

31

Going by French movies & TV (mostly Munch) the investigative judge is completely separate from the trial judges. Assize Courts have 3 judges and 6 jurors, the jurors are also allowed to question witnesses, and they deliberate together with the judges. I do think it’s weird that the public prosecutor sits on a dais at the height as, but separate from, the judge & jury while the defence counsel sit on the floor.

32

Do both systems include a presumption of innocence on the part of the accused?

33

Presumption of innocence for penal offenses is listed in Article 11 of the Universal Declaration of Human Rights. Article 48 of the EU Charter of Fundamental Rights guarantees the presumption of innocence in criminal proceedings.

According to a 2010 PBS film:

In Mexico, those arrested are, in practice, considered guilty until proven innocent – with predictable results. The great majority of the accused never see a judge or even an arrest warrant.

Sounds tough! Also:

At present, a person who commits a crime in Mexico has less than a 2 percent chance of being caught and punished, in part because police often ask a person who reports a crime to pay for the case to be solved; a person who refuses risks becoming a suspect him or herself, which discourages cooperation with police. A study released in 2008 indicated that Mexican citizens had extremely low confidence in police action and efficiency, which causes them to shy away from reporting crimes.

There are reformers who want to change the presumption of guilt in Mexico.

There are similar allegations regarding France, though the presumption of innocence is part of the French constitution.

Officer Short Shrift: