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

fundamental freedom to bargain (contractual freedom) in an adversarial systems, and the procedural freedom of the parties.37 Thus the adversarial system conforms to a more liberal constitutional theory, which envisages that an individual is free to give up his or her procedural rights, whereas a more institutional theory emphasises the public interest in finding the truth above all else. Thus an accused can enter into informal negotiations with the prosecution to obtain a diminution of sentence in return for a plea of guilty. The plea obviates the need for a lengthy and expensive (jury-) trial. Guilty pleas do not figure in inquisitorial systems because the accused is not a fully-fledged party to the proceedings, and because it is ultimately always the responsibility of the trial

 

 

 

judge to ascertain the truth. The judge need not necessarily accept a confession of guilt in the form of a plea.

 

A plea bargaining process may lead to excessive emphasis on confessions.38 As a consequence police use unacceptable methods to put pressure on an accused to confess, since a confession is in principle sufficient basis for a conviction. This leads to miscarriages of justice. The guilty plea procedure may also result in a lack of public confidence in criminal justice, since justice is seen to be 'for sale', and offenders are seen to get off too lightly.39 But the major potential drawback of guilty pleas is that the rights of the accused may be compromised if unlawful or unethical pressure is brought to bear in circumstances where the plea does not reflect the truth.

 

Despite the drawbacks of the system, the attractiveness of a simplified and cheaper procedure has induced various European jurisdictions to investigate the introduction of guilty pleas, or to introduce similar procedures, although in most cases subject to some form of judicial supervision. In France, the Commission De/mas-Marty proposed such a scheme in I99O, but the government did not act upon the recommendation. In the Netherlands the ministerial Commissie Herijking Wetboek van Strafvordering also proposed the introduction of a guilty plea procedure in I992, but the proposed new structures were not uniformly well received. Alternatively, as in Belgium and the Netherlands for instance, there is the possibility of a 'minne/ijke schikking' (an 'amicable settlement'), where the prosecutor can propose that the accused pay a certain sum of money (at most the amount of the maximum fine for the offence concerned) to 'settle' the case. The free choice of the accused determines whether to accept the proposal or proceed via the traditional judicial route, but if he does, he forfeits the right of access to a court. Alternatively the bemidde/ing in strafzaken (mediation in criminal cases) procedure may be used, whereby the prosecutor proposes that the accused pay compensation in relation to the offence and agree to certain conditions. If the accused consents, and then complies with all the conditions, the prosecution lapses.

Similarly, the German Strafbefeh/verfahren, permits the trial judge to decide the case purely on the basis of the dossier, and upon the request for the imposition of a certain fine by the prosecution. If the accused is not satisfied, he can appeal the decision within one week, and the case is then heard in a 'regular' public trial. A similar process exists in France and is known as the ordonance pena/e. (All the simplified procedures apply only to relatively minor offences). The advantage of this process over a common law guilty plea, is that the bargained fine is subject to the independent control of a judge, whose decision is subject to an appeal, thus guaranteeing the rights of the accused and preventing excessive pressure. A similar procedure exists in Italy.4O

 

 

 

SOME RECURRENT THEMES IN COMPARISONS BETWEEN ADVERSARIAL AND INQUISITORIAL SYSTEMS

 

Truth and justice

The adversarial system, typified by party disposition and party prosecution, is often criticised because it is not sufficiently concerned with finding the truth, as parties, rather than state agencies, control and circumscribe the forensic process, and judges do not participate actively in the search for truth. Injustice may result, as prosecuting authorities pursue convictions while disregarding the truth, and because judges are passive adjudicators, neither concerned with nor responsible for identifying the truth. There is no neutral forensic process, as is said to exist in inquisitorial systems.

 

In the inquisitorial system the emphasis is on outcomes, in the common law systems on process. The process-focused, mechanistic common law principle may be described as follows: the result of the two parties vigorously defending their version of the facts from legally equal positions and before a neutral and unprejudiced arbiter will be that the truth comes out. The inquisitorial attitude is that a search for the truth by an impartial officer of the state is the best method. It is important in that system that the judicial officer, be it judge or prosecutor, is indifferent as to whether a conviction results or not. Thus a prosecutor in a civil law system demands little more than the application of the law; in the common law system the prosecutor demands a conviction.

 

One of the problems with the civil law approach is that even if justice is ultimately done, there may be injustice along the way. For instance, a person ultimately acquitted may have spent an inordinately long time in preventative detention, because the system did not offer a sufficient opportunity to intervene in the forensic process at an early stage. Possibly the major problem with the common law approach is that the theoretical legal equality of parties in the system will be subverted by actual inequality of means, favouring the prosecution in most cases.

 

However, although the excessive vigour of the prosecution and manipulation of the forensic process by police in common law systems frequently come under attack, at the same time the system is accused of being potentially skewed in favour of the accused. This criticism takes two forms: first, a general criticism of the traditional view of common law systems, that ten guilty persons escaping punishment is better than one innocent party being convicted. Too many guilty persons are said to be acquitted as a result. The appropriate response, however, is not to attack the traditional maxim, but to implement a system that will produce a correct result more frequently (ie more effective identification of the truth). Secondly, criticism is aimed at the fallibility of the process in relation to a certain class of offender. Party prosecution, rules of evidence and judicial passivity all combine to make the system open to manipulation by smart, wealthy and determined criminals. (It could, of course, be argued that all socio-economic groups can 'benefit' from these factors, not simply the wealthy and smart) Naturally, these attacks rarely emanate

 

 

 

from the same source as the complaints about the excessive vigour of the prosecution.

 

Because in the inquisitorial system the accused is not a party, and neutral officials pursue the truth rather than convictions, these critiques are said not to apply there. Further, courts play a greater role in the pre-trial stage, and will therefore prevent manipulation of the process by the parties. However, the rich and influential accused may be able to manipulate the system in different ways in civil law jurisdictions (e.g. by political influence that filters down to prosecutorial ranks), where common law systems are less open to such manipulation. Further, the belief in the neutrality of the prosecutor and investigating magistrate, and the active interest in the truth of the trial judge, represent a normative picture of criminal proceedings in inquisitorial systems. The role that the trial judge actually plays in practice in any given case is quite limited. For instance, a judge in a civil law jurisdiction will rarely conduct a vigorous examination of the evidence at the trial, normally rather relying on the contents of the dossier without much question, simply checking that there are no formal irregularities. And the prosecutor naturally and instinctively assumes a partisan position, in spite of normative statements to the contrary.

 

It is important also to focus on the ability of the system as a who/e to discover the truth. Factors other than the nature of the forensic process affect systemic efficiency. For instance, even though in an inquisitorial system the role of the prosecution is that of a neutral searcher for the truth (not partisan pursuit of convictions), and this may arguably benefit the finding of 'the truth', other factors such as very long delays between offence and trial, powerlessness of the accused in the forensic process and at the trial, a lack of emphasis on the innocence of an accused until proven guilty, the use of disposition and character evidence may affect the ability of a system as a whole to find 'the truth'. Further, a lack of vigour in prosecution (the ready filing of complaints without consequence, and forensic dilatoriness, partly because nothing much is to be gained from achieving convictions) may also result in a systemic failure to pursue those in fact guilty of offences.

 

Truth and evidence

But in any case, the ultimate aim of the system is to deliver justice, rather than truth. If the ultimate goal of the system were to deliver truth above all, it would no doubt have a totally different, and not necessarily edifying aspect. From that perspective, forensic effectiveness is only one, if vital, element of a system with the prime goal of doing justice. But forensic effectiveness is always to be balanced with other factors in a human system, both practical (limited resources) and legal (respect for the rights of the individual). The whole aim of the law, and the complex nature of its rules, is exactly aimed at finding a balance between a number of constraining factors.

 

But the previous statements do not detract from the fact that finding and

 

 

 

presenting relevant facts in evidence is of the greatest importance to an accused in any given case. The adversarial system has come under attack for its insistence on the oral delivery of evidence by first hand witnesses at the trial, and also for party control over the pre-trial stage with limited judicial intervention, resulting in delay. The result is an unfortunate congruence of factors. On the one hand, considerable delays occur between commission of an alleged offence, and the trial, which means that the recall of witnesses is diminished and that witnesses are subject to all sorts of influences between the events and the trial. On the other hand, insistence that evidence gathered before the trial (e.g. immediately after the events) should largely be rejected in favour of evidence given at the trial results in the trial itself being a flawed forensic process with a propensity for missing 'the truth'.4I

 

The fact that party prosecution renders the accused largely responsible for finding and adducing evidence in his favour also contains a fundamental flaw where the accused is not in a position to commit sufficient resources to the search for evidence.42 The truth is not likely to be found because the evidence of the prosecution is in the end all that is heard by the court. This criticism is doubtless justified, even more so in a period of diminished resources for legal aid. Nonetheless, continental writers often overstate their case in this regard, ignoring that the accused in the adversarial system is not obliged to present evidence a decharge, ie is not obliged to disprove guilt. They tend to ignore the fact that, because of the absolute right to silence, and the presumption of innocence, the accused may simply rest his case and let the crown meet the high standard of 'beyond reasonable doubt'. There is no obligation on the part of the accused, either to prove innocence, or to collaborate with the case against him or her.43

 

Cross-examination constitutes at least a partial response to the criticism of the adversarial system rehearsed above. Vigorous cross-examination allows the accused to undermine the prosecution case, even without adducing evidence of his own. This opportunity barely exists in a civilian jurisdiction. It is seen as 'the motor of truth'. Nonetheless, when brought to bear on witnesses long after the event, cross-examination may