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Adversarial and Inquistorial Systems
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Adversarial & InquisitorialSystems
Both systems include a trial, where witnesses can be called.
Both systems make use of a trial judge although their roles are very
different.
In both systems, the defendant has the option to plead guilty.
There is no difference in the standard of proof that is required – both
require proof based on the balance of probability, or ‘beyond
reasonable doubt’. However, in the adversarial system, the
prosecution has the burden of proof. In the inquisitorial system, the
court is mostly about finding the facts of the case.
Adversarial System
A contest between the prosecution and the defence, where the prosecution
bears the burden of proof.
The trial is not an investigation, but a hearing, to decide who has the
best evidence, the prosecution or defence.
The principle of this system is to place a distance between the
investigation and the person who must decide the verdict. (i.e., the
jury are NOT involved in any way.)
o Idea is that the jury is removed from the case and not involved so
that they can’t be biased on the case, however, doesn’t always
work.
The role of the court is that of an impartial referee between the
prosecution and defence
The judge focuses on the issues of law, fairness, equality, and
procedure, and allow the prosecution and defence to make their own
arguments to the jury.
Neither the judge or jury can initiate an inquiry, and judges rarely ask
witnesses questions directly during trial. Discussions among jurors and
the reasoning behind their verdicts cannot be made public.
Any decisions which are made by the higher courts from a precedent,
and the lower courts are bound to uphold these decisions.
Inquisitorial system
The court is actively involved in investigating the facts of the case.
The role of the court is that of an investigator.
Sometimes there will be multiple judges, sometimes there is a judge
and a jury. (Such as a misdemeanour trials in America, and other
European courts)
The judge/jury acts as an ‘inquisitor’ who participate in fact finding
about the case. They can request certain evidence to be examined,
question witnesses etc.
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