Inquisitorial System

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Inquisitorial System

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.


Criminal Procedure; Due Process of Law.

References in periodicals archive ?
14) Judges in inquisitorial systems initiate proceedings, collect evidence, and determine how to construct and resolve the legal and factual issues in the case.
substituting the inquisitorial system for our adversarial system are
1) Gregory O'Reilly, England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice, 85 J.
17) In advocating that the common law should adopt aspects of the inquisitorial system, particularly in relation to case management and the obligation to reveal the truth, Jolowicz contrasts the underlying principles of the French Code Civil with the statement of Lord Denning MR in Air Canada v Secretary of State for Trade [No 2]: 'when we speak of the due administration of justice this does not always mean ascertaining the truth of what happened.
273) By adopting this remnant, England has reversed three-hundred years of progress towards the accusatorial system, with its reliance on independent witnesses and extrinsic evidence, and reverted back to the inquisitorial system, with its reliance on obtaining suspects' confessions through interrogation.
See Slobogin, supra note 63, at 711-12 (reporting research showing that the inquisitorial system is less likely to create biased evidence, and noting that even THIBAUT & WALKER, supra note 113, concluded that "an 'autocratic' procedure 'is most likely to produce truth'").
In the inquisitorial system, on the other hand, it is the duty of the Judge to find out the truth.
Legal realist accounts aside, there is a prevailing understanding of the Court's criminal procedure jurisprudence that is frequently offered by the Court, and held up by commentators, as justifying or at least explaining doctrinal inattention to pretrial reliability concerns: the notion that "ours is an accusatorial and not an inquisitorial system.
95) Therefore, the discretion of an individual prosecutor in the inquisitorial system is very limited.
The adoption of some of the features of an inquisitorial system has been suggested as a solution to the problems that arise in the cross-examination of vulnerable witnesses.
In an inquisitorial system the adjudicator is empowered to take the initiate in eliciting evidence and controlling the way in which matters are presented.
119) Decisions based upon a fair battle between two equal contestants might be accepted more willingly and might give the participants and the public a greater sense of fairness and justice than decisions that are produced in an inquisitorial system even if it means that "truth-discovery" is an "incidental by-product" of a trial.