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

have the unfortunate effect of painting a witness in a far less favourable light than is fair. Much of the apparent effectiveness of cross-examination in breaking down a case, is arguably more the result of exposing the kind of normal psychological processes that affect recall, than with a truly effective way of getting to the truth. It is in this sense an essentially negative tool, apparently rendered effective more by the structural characteristics of the system, which encourage delay between facts and trial, than by any inherent usefulness in finding the truth. The accused, whose lot becomes dependent on such unnecessarily unreliable processes, may find this whole event both illogical and pointless, as may many honest witnesses.

 

 

 

In this respect the inquisitorial system differs substantially from the adversarial. The strict rules of evidence concerning hearsay do not exist, relevance and legality being the only restraining factors. The early stages of inquisitorial criminal prosecutions tend to be characterised by the gathering of evidence for all sides, that will be placed in the dossier and presented to the court at the trial in that form. Various measures may take place to gather admissible evidence, rendered in official documentary form (proces-verba/), that do not exist in common law jurisdictions. For example, witness statements, so-called confrontations (between accused and a witness), the production of official statements of evidence concerning the conduct of the accused immediately after the commission of an alleged offence, the garde a vue (where the accused is held in a police station for an extended period) with interrogation, documentation regarding character and antecedents. Undoubtedly, much evidence that is relevant and significant is thus collected, and collected at a stage when recollections are fresh and there has been less reflection on the consequences of making statements. It is precisely the more limited basis for suspicion towards officialdom in a non-adversarial system that makes this possible.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Documentary evidence

But although civil law systems may have the advantage of gathering admissible evidence at an early stage after the occurrence of an offence, the clear disadvantage lies in the excess pressure on the accused that goes with this evidence gathering, and on the lack of genuine opportunity to question such evidence vigorously before the ultimate fact-finder. Further, in reality the civilian system struggles from a lack of resources to fully investigate the truth, because this process is entirely dependent on the extent of resources available to state institutions, and such resources have come under severe stress in recent times. Thus the resources expended on any given prosecution are entirely outside the control of an individual accused; this does not always benefit the finding of the truth.

 

As has been pointed out repeatedly above, the evidence for a criminal trial in an inquisitorial system will be built into a dossier in documentary form, which forms the principle basis for the decision of the trial court. Such a dossier contains not only forensic evidence, but also evidence about the character and antecedents of the accused, since guilt and sentence are considered simultaneously by the court. As a consequence, the objecitivite du dossier (objectivity of the case file) is a vital goal for the system of criminal proceedings in inquisitorial countries, since the dossier will be largely determinative of the outcome of the case at trial. The main guarantees of the objectivity of the dossier are twofold: first, that the obligation of the prosecution is not to obtain a conviction but to reveal the truth, and thus to gather in the dossier evidence for and against the accused. And secondly, the intervention, first, of the prosecutor, whose role at least in part is to supervise the police, and secondly, of the investigating magistrate, who, being a judicial officer, will

 

 

 

supervise the police and the prosecutor and ensure that an objective balance is struck in all investigative measures. In particular, he or she will be able to ensure that no excessive pressure is used to obtain a confession, the latter being the principal goal of police conduct of the investigation in most cases.

 

The problems, however, with both those guarantees of objectivity, are, first, that the prosecutor (parquet) is naturally inclined, because of the nature of his role, to take a partisan position against an accused, of whose guilt he may have become convinced, and is often in the power of the police, rather than effectively supervising police conduct of the investigation; and secondly, that the investigating magistrate, key figure in the process, because of lack of resources, is only involved with a minimum of cases (less than IO per cent in Belgium, for instance), and then often only for the purpose of ordering specific measures in his judicial capacity, rather than to conduct and supervise the investigation. The instinctive scepticism about a system based on documentary proofs of evidence experienced by a common lawyer is thus in part justified. The dilemma facing many inquisitorial jurisdictions, however, is how to counterbalance these long-standing developments. A clearer taxonomy of cases to be submitted to the investigating magistrate is a common focus of the search for solutions.

 

Balancing rights

Ensuring systemic respect for rights is a primary goal of the law of criminal procedure.44 At the whole-system level there is a balance to be struck between the rights of society and the rights of individual accused persons: a balance between private rights and public efficiency.45 A system of criminal law must not amount to a system of repression. At the level of a given prosecution a balance must be struck between the rights of the individual and the rights of the prosecution. The individual has a basic right both to procedural justice and to respect for human rights, but the rights of the prosecution are exclusively concerned with procedural justice. In more recent times, more emphasis has also been put on the rights of the victim(s) of an offence, which are manifold (the right to prosecution, the rights to be heard, the right to compensation etc), and on respecting those rights through appropriate involvement with the process of criminal justice. The rights of witnesses have also received wider consideration.

 

Although victims can play a more active role in civil law jurisdictions, similar concerns have been expressed there. Victims in civil law jurisdictions can appear as civil claimants (for damages) in criminal cases ('party civi/') and their claim for compensation can be heard at the same time as the criminal case. Victims can also have recourse to the investigating magistrate and demand that a criminal investigation be undertaken in cases where the parquet refuses to prosecute (at least in Belgium). The investigating magistrate is then obliged ex officio to investigate the matter. The advantage to the civil claimant lies partly in so obtaining proof that may assist him in establishing his civil claim.

 

 

 

Furthermore, once there is a civil claimant, the prosecutor can not classify the case without further action or proceed with the case by way of a non-judicial measure.

 

At the same time, in inquisitorial systems, witnesses, including victims, are not subjected to the rigours of cross-examination, their written depositions as they appear in the dossier amounting to the full extent of their involvement in the process in most cases. This obviates the many concerns about the adversarial system expressed on behalf of youthful victims, victims of sexual offences, and witnesses of minority and disadvantaged backgrounds.

 

There is another interesting contrast in the matter of rights, between civilian and common law jurisdictions, that flows from the fact that civil law jurisdictions are code-based, and in particular, from the existence of a detailed separate code of criminal procedure as well as a substantive criminal code. The codes are rights-based, in the sense that they are expressed in terms of procedural rights: for instance, the accused has a statutory right to representation and the right to have all forensic measures repeated before the trial court. But the reality is often different, either because those rights are expressed in a manner that can not possibly be sustained in practice, or because those rights are subject to judicial discretion. There is a great gap between legalistic prescripts and reality in many civilian systems, which may be the inevitable effect of codification and its attempts to formalise and circumscribe discretionary decision making in an unrealistic manner. Adversarial systems are less concerned with rights, because the relationship between the accused and other parties, and the officials and institutions that conduct the investigation and prosecution is not as central as it is in an inquisitorial system.

 

Ultimately the balance of rights that is struck in Western Australia, in the absence of a bill of rights, is a political matter. Nonetheless it is important that rights are emphasised and suggestions are made concerning an appropriate balance when conducting a legal analysis of the system of criminal prosecutions. The process must be conducted in an atmosphere of vigilance concerning human rights. There is a limit on the extent to which a government can, on the one hand, criminalise more forms of conduct, or impose greater criminal sanctions for the same conduct, and on the other hand decrease the rights of the accused person, either by express measures to that effect, or by allocating fewer resources for the conduct of criminal proceedings. There are absolutes, expressed in terms of rights and principles, that must stand in the way of such moves in a democratic state. It is obvious that the right to silence of the accused is an important issue in this respect.

 

The presumption of innocence and the right to silence

Adversarial jurisdiction, greatly emphasise the right of the accused not to contribute to the case against him (the right to silence). This question of the presumption of innocence is often raised in a comparative context, because

 

 

 

it is sometimes presumed not to exist on the continent of Europe, and it is probably worth saying a little more about the issue here. It is also appropriate to do so in the context of the revision of the right to silence in some Australian jurisdictions.46 It is sometimes argued that the right to silence forms an unnecessary barrier to the finding of the truth in adversarial jurisdictions.

 

Many of the methods used to obtain evidence in inquisitorial jurisdictions have come under severe criticism, both from courts and commentators, for their deleterious effect on the right of silence and the presumption of innocence of the accused. There is considerable concern that a suspect is put under excessive pressure at the early stage after an offence is committed (eg during the garde a vue), and that confessions are sought in an atmosphere where an accused is powerless.47 It is not clear that the accused who has confessed has sufficient opportunity to recant or put forward his or her version of events before the court at the trial stage either, and from this perspective important questions may be asked about the 'presumption of innocence' in inquisitorial systems.

 

There is certainly a greater tendency towards undermining the right to silence and a surreptitious reversal of the onus of proof in civil law systems. Thus it is arguable that in an inquisitorial system, there will be greater pressure on an accused to explain away certain evidence gathered against him, irrespective of how probative that evidence may be, subtly shifting the onus away from the prosecution. (Note in this respect that the garde a vue is used for the purpose of questioning a suspect and provides an opportunity for undue pressure). The common law more emphatically denies this avenue, through strict adherence to the right of the accused to stay silent at all times: he need not contribute to (either his own or) the prosecution's case, and nothing can be said about his unwillingness to do so.48 Changes to the right of silence of the accused are considered in sub-section 4.2 of this review.

 

The standard of proof

One important safeguard for an accused person in the common law world is the high standard of proof that applies in criminal matters: beyond reasonable doubt. This standard is higher than in civil matters (on the balance of