Advantages and disadvantages of the adversarial system in criminal proceedings by William van Caenegem (e ink epub reader .TXT) 📕

Judges and procureurs alike make up the 'magistracy', but each has a defined role and obligations, and no person can be prosecutor and judge in the same case.22 Judicial independence is guaranteed as, once appointed by the government, no judge can be removed other than by Parliament, but the procuracy is organised as a hierarchical corps and is subject to disciplinary supervision.23 Each judicial region has an attachment of prosecutors (procureurs), known as the 'parquet' attached to a given court in that region. The procureurs take control of the criminal investigation and supervise the appropriate conduct of the judicial police, and also act as prosecutors in court (in that guise they are collectively known as the 'ministere pub/ic').

Each region has one or more investigating magistrates (juge d'instruction), who combine control of major criminal investigations with certain judicial functions (ordering restrictive measures when required, for instance).24 When the investigating magistrate is exercising his judicial function, the accused has the right to be heard, with counsel. The advantage of an investigating magistrate is that a judicial figure, closely engaged with the investigation, will be able to exercise effective control over the conduct of the investigation by the police. He will also be well placed to judge the real necessity of measures that affect the freedom, rights and integrity of the accused.

In some civil law jurisdictions a special court decides about the classification of offences. All criminal courts with the exception of the highest court (Cour de cassation in France) are specialised.

Prior to trial, the defence gets limited access to the dossier, and may make

informal suggestions to the prosecutor or investigating magistrate concerning further forensic measures. Proof of a trial is largely documentary, recorded in documents with a formal legal status (proces-verba/), although in theory all proofs, evidence of which is found in the file or dossier handed to the trial judge just prior to the trial, must be repeated orally before the court. But the trial judge has the discretion not to order such repetition, and usually does not. Only the judge questions witnesses; there is no cross-examination and expert witnesses are court appointed. The only rule regarding admissibility of evidence is relevance, but the presumption of innocence is also fundamental to civilian systems. The role of defence counsel at trial is restricted to making written submissions regarding the evidence and legal matters, but counsel may suggest to the judge certain questions that may be asked of witnesses and further investigative measures that should be ordered. Most often the case is largely determined on the basis of the written proofs in the dossier. Ultimately the trial judge is responsible for discovering the truth, and can thus theoretically order further investigative measures (which rarely happens). The investigation of the truth pre-trial, and the determination of the truth at the trial itself, are subject to judicial control and supervision.

Hearings and submissions regarding sentence and regarding guilt are not strictly separate as in common law systems. The history (antecedents) of the accused thus plays a greater role, as does evidence gathered regarding his 'character'. There are no rules excluding evidence of propensity (ie of previous criminal conduct or convictions); all this information is seen as relevant to the trier of fact forming its intime conviction (the relevant standard of proof in inquisitorial jurisdictions) concerning the guilt or innocence of the accused.

In some systems jury trials exist for major crimes (cour d'assise; see France and Belgium), the jury consisting of a varying mixture of judges and lay people (so-called lay judges). Different rules apply to jury trials, the evidence being presented orally and continuously, and something akin to cross-examination taking place.

SOME STRIKING DIFFERENCES BETWEEN ADVERSARIAL AND INQUISITORIAL MODELS

The law of evidence

Accused persons tend to spend longer periods in preventative detention (remand) and bail is less prevalent. There is greater discretion concerning the execution of sentences than in most common law jurisdictions.

As said above, there are no exclusionary rules of evidence in inquisitorial systems, materiality, relevance and legality determining admissibility. Before the trial takes place the evidence has largely been identified and gathered, in a statutorily determined documentary format, in the form in which it is to be heard (or more correctly, seen) at the trial. In some cases, the evidence has been received prior to the trial in an adversarial format (before the investigating magistrate, acting in his judicial capacity), but generally speaking the pre-trial stage (the information) is secret and not contradictoire. Nonetheless the accused has a limited right of access to the dossier at a given moment prior to the trial.

Exclusionary rules of evidence are said to originate in the predominance of jury trials in the common law system, dependent as they are on oral and continuous presentation of evidence. However, they also result from professionalisation of the representation of accused persons in an adversarial trial. Be that as it may, it is better accepted in civilian jurisdictions, where juries are very rare25 that a professional judge (specialised in criminal matters to boot) will not be swayed by unreliable, unfairly prejudicial evidence. Nor are there strict rules excluding evidence about previous conduct of the accused. Again, a professional judge is thought capable of avoiding the trap of determining guilt by disposition, and to give full weight to the right to silence, and the presumption of innocence, of the accused. Conversely, there is not, in inquisitorial systems, the kind of adversarial pressure that results in partisan presentation of evidence in an adversarial trial.

The civil law system is thus said to be simpler, without the rules of evidence that are such an unpredictable factor in criminal prosecutions in adversarial jurisdictions, where late determination (ie at the trial) of admissibility may lead to a waste of resources on prosecutions and investigative measures, and can make planning a trial difficult. The strict rules concerning hearsay evidence also result in the loss of much valuable evidence gathered in a form that is not admissible during the early stages of a criminal investigation and prosecution.26 In inquisitorial systems this does not occur, but to a common lawyer the secret compilation of a file with documentary evidence which cannot effectively be challenged naturally invokes concerns about the position of the accused. Nonetheless this must be seen in the totality of the system, which is less partisan by nature.

Jury trials

Jury trials are the exception rather than the rule in civil law jurisdictions; where they do occur, they are conducted more along adversarial lines. Jury trials, more prevalent in common law systems (although they occur in only a small percentage of cases), introduce an element of complexity and uncertainty that is virtually absent in civilian jurisdictions. They frequently misfire because of problems with the jury, requiring the empanelment of new juries, because of errors in summing up, because of complex appeals against guilty verdicts, etc. A system without (or with very few, as in France) jury trials will clearly be less complex, and less prone to mishaps.27

A jury trial is of necessity predicated on continuous and adversarial oral presentation of evidence, but such a method of determining criminal cases is time and resource intensive (as was, for instance, experienced in Italy when the adversarial trial was introduced in I988).28 Doing away with jury trials would thus probably reduce costs, and would also enhance opportunities to deal with matters in alternative ways not subject to the same concerns about admissibility and presentation of evidence, and hence possibly also increase predictability.

Nonetheless, juries fulfil an important function of civic involvement, democratic accountability, and possibly restrain the growth of a sense of alienation and distrust between the system of criminal justice and the wider community. As was established in Stonehouse, the jury is entitled to acquit, no matter how strong the prosecution case is. A judge is not entitled to direct the jury to convict. In other words, an element of subjectivity can enter a trial through the jury, without possible accusations of bias as could be leveled at a judge in such circumstances. Furthermore, in Australia there may be constitutional restrictions on the abolition of jury trials.29

The question of the survival of jury trials, however, must be anchored in the reality that a large and complex society cannot be universally engaged with the doing of justice, and that therefore resources must be allocated to specialised agencies to perform the task. Such resources will of necessity be limited. The question thus becomes a relative one: which cases should be tried before a jury? The answer depends on an objective element (the taxonomy of the offence) and on a subjective element (the exercising of the right to a jury trial by the accused). Certainly, in civilian jurisdictions where they do exist, jury trials only occur for the very gravest offences.

If exclusionary rules of evidence are necessary for the appropriate functioning of jury trials, both because of their continuous oral nature and because of the peculiar susceptibilities of juries, should jury trials and summary trials (trials before a judge alone) be subject to different rules of evidence?3O One option for reform might be a system similar to that in France, with a very limited number of jury trials for the gravest crimes, subject to a separate body or rules of evidence and of procedure.

Investigating magistrates

(juges d'instruction)

The investigating magistrate conducts the investigation, either in person and/ or through instructing the police, but is not a prosecutor. He alternates between this forensic role and the exercise of his judicial power in the context of the investigation. The juge d'instruction is sometimes identified as a powerful and valuable institution that common law jurisdictions would do well to emulate.3I However, it should not be forgotten that in Italy, the institution of investigating magistrate was recently abolished.32 Instead, and this is a more realistic model for an adversarial jurisdiction, as Italy now is for criminal matters, a 'judge of the pre-trial stage,33 or alternatively a 'pre-trial court' (juge de

/'instruction) was instituted. That court exercises purely judicial powers where required during the conduct of the prosecution and investigation of an offence

by the police and prosecution, but has no power to conduct the investigation and order forensic measures. It is indisputable that the traditional role of juge d'instruction is a difficult one, precisely because it combines two powers (judicial and investigative) that are at times incompatible.

The position has also been considered to be excessively powerful and not sufficiently subject to independent control.

Codification of the law of criminal procedure

Guilty pleas and abbreviated processes

The complexity and uncertainty of the law relating to criminal procedure, including the law of evidence, in a jurisdiction such as Western Australia is possibly enhanced by the fact that there is no comprehensive and separate codification of the law of criminal procedure, as does exist in civil law jurisdictions (in most civilian jurisdictions there is a Code of criminal law and a Code of criminal procedure). In Western Australia and Queensland the substantive criminal law is of course found in the Griffith code. Nonetheless, many aspects of criminal procedure are either shaped by the common law, particularly the law of evidence,34 or by disparate enactments. Arguably the enactment of a comprehensive code concerning the trial and pre-trial stage would generate greater certainty and clarity, and would shift the balance of determination of important issues in criminal procedure from the courts to the legislator. As it stands, much of the conduct of police in criminal investigations is ultimately only controlled by judicial discretions (by their nature uncertain in outcome) regarding evidence. On the other hand, as pointed out above, codification may result in rigidity, and the development of practices that ignore the codified rules, as has happened in various civilian jurisdictions. The Crimina/ Procedure and Investigations Act I996 (UK) is an example of a statutory approach.35

The guilty plea does not exist in inquisitorial jurisdictions.36 It has been argued convincingly that the guilty plea flows from a belief in the accused's