UNDERSTANDING THE ADVERSARIAL AND INQUISITORIAL JUSTICE SYSTEM

Generally in the adjudication of disputes, there are basically two globally accepted systems in the delivery of justice; the adversarial and inquisitorial systems. The adversarial system is more common and found in countries like America and most common law countries while the inquisitorial system is found in countries like France, China and Russia.

The Adversarial system is a legal system where two advocates represent their parties‘positions before an impartial person or group of people, usually a judge, who attempts to determine the truth of the case. The Adversarial system is a two sided structure under which criminal trial courts operate, that puts the prosecution against the defence. Justice is done when the most effective adversary is able to convince the judge or Jury that his or her perspective on the case is the correct one.

On the other hand, the 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. The first jurisdiction to wholly adapt this method was the Holy Roman Empire. The main feature of the inquisitorial system is the functioning of the examining or investigating judge.

Adversarial system certainly requires the skills of counsel on both sides to debate the issues before them. This debate would foster a critical look at the issues and the calling of evidence to be examined by both parties. Cross-examination is also a prominent feature of the adversarial system.

Neither the prosecution nor the defence has the right to cross-examination in inquisitorial system. The judge takes on the role of prosecutor and judge. The judge can also compel the accused to make statements and answer questions.

Judges in an adversarial system are expected to be impartial in ensuring the fair play of due process and fundamental justice. Such judges decide often when called upon by counsel rather than of their own motion what evidence is to be admitted where there is a dispute. The rules of evidence are also developed based upon the system of objections of adversaries and on what basis it may tend to pressure the judge or the jury to decide in a certain direction. In a way, the rules of evidence can function to give a judge limited inquisitorial powers as the judge may exclude evidence he/she believes is not trustworthy or irrelevant to the legal issue at hand.

When a defendant confesses to a crime, in an adversarial system the case moves to sentencing while in an inquisitorial system, it is just one more fact for the judges to weigh in coming to the truth. In adversarial systems some cases are settled by plea bargain. The proponents of the inquisitorial system argue that this causes the participant to act in ways that pervert the system.

The traditional adversarial system which is also practiced in common law countries including Nigeria relies on the parties using their own resources to find and present evidence to the decision maker. It has a proud history and has been put forward as an ideal model for resolving legal issues. However when individuals are disadvantaged by reason of their socio-economic status, disability, race or other attributes in trying to utilise the adversarial system, they often are unable to even open the door. Ironically, it is these individuals that have the highest rates of interaction with the justice system and yet are the worst yet served.

Without adequate access to legal representation or funds to secure the evidence required to prosecute their case, many people do not have real access to justice. For example, in the US federal discrimination law system, matters can only be heard in the very formal federal courts or federal magistrate courts, both of which rely on the adversarial system of resolution. This requires an already disadvantaged individual to fund the gathering and arguing of evidence and to withstand personal and public attacks on their character during cross-examination. If they are successful, the average award is $20,000, which is far less than their legal costs.

The inquisitorial system determines how criminal enquiries and trials are conducted. In other words, the duty of the judges is to look for any and all evidence (incriminating or exculpatory). The scope of this enquiry is limited by the mandate given by the prosecutor’s office; the examining judge cannot open a criminal investigation on his own.

Adversarial and inquisitorial systems with paths which look so different yet aim at the same goal which is to enforce the standards necessary to protect individuals and the community.

by Aje R. Adofikwu

Author: tlc

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