Adversarial or Inquisitorial: Which Mode of Trial System is Better? Essay Example

unanswered, which of the two better embodies a “true blue” justice system – the adversarial trial or the inquisitorial trial?

The adversarial system is often compared to a game or contest in which both sides are trying to win and a neutral umpire decides two things: (1) whether they are playing by the rules and (2) which side wins. Often, the judge acts as umpire for both these aspects of the contest. In some cases, the judge’s chief responsibility is to make decisions that ensure a fair contest, while a jury declares the actual winner (Fairchild 2001, p. 140).

The advocates of the adversarial system of justice support that the basic respect for human dignity (paramount importance) is at the heart of the adversary system. Korac-Kakabadse, Kouzmin & Knyght (2001) delineated that the central theme presented in favor of the adversary system is the “umpire”-role played by the judge; the judge being a listener and decider of a dispute and not a participant in the fray of examination and cross-examination as occurs in the inquisitorial system.

However, the major assumption underlying the adversarial discourse model is that the ordinary processes of relationships and identity management are irrelevant to establishing the facts of the matter (Penman, 1987), standing in direct contradiction of human rights principles.

Such processes include the freedom to negotiate the right to speak; to qualify what is said; to demand respect; and to distance or withdraw, if necessary, to save face (Penman, 1987). In a typical courtroom procedure, these types of actions are prohibited. This is especially true in respect to the “face” needs of witnesses (Eiser, 1980, p.

214).

Comparatively, in an inquisitorial trial, the judges play a much more active role rather than being just the listener or decider. Inquisitorial system is defined as "[a] system of proof-taking used in civil law, whereby the judge conducts the trial, determines what questions to ask, and defines the scope and the extent of the inquiry. The system prevails in most of continental Europe, in Japan, and in Central and South America" (Black’s Law Dictionary 1999, p. 796).

In Germany (which follows the inquisitorial system), the judge has the responsibility of examining the pleadings and appending documents, scheduling hearings, maintaining the court's official dossier, and deciding the case in a written judgment.

The judge, rather than the parties, is responsible for developing the evidence, calling and questioning witnesses himself or herself.  In a minority of civil law jurisdictions this may include access to the dossier compiled prior to trial.

By its nature this includes written statements (so that the judge is not confined to oral evidence led in court) (SALRC Discussion Paper).  Thus, the inquisitorial trial features the judge as the central “actor”. The judge "runs” the trial, conducts most of the questioning, and shapes the introduction of evidence.