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

probabilities). The standard in civilian jurisdictions is both universal and also more subjective: it is the standard of intime conviction, the inner certainty of the trier of fact (whether judge or jury). Indeed civilian jurists have some difficulty with the concept of different standards of proof in civil and criminal actions: either the judge of fact has an inner or moral certainty or not; there can not be any in-between standard. To achieve inner certainty the trier of fact can only benefit from being in possession of the fullest possible range of information, and thus exclusion of relevant evidence must be kept to an absolute minimum. The standard of moral certainty is obviously less open to appeal, no standard of reasonableness being involved. Whereas the guilty

 

 

 

verdict of a jury in an adversarial trial is open to appeal if it could not reasonably be entertained on the evidence, appeals in civil law jurisdictions will be limited to legal matters or formal defects in proceedings. The intime conviction can not be double-guessed by an appeal court. This obviously lends an element of greater certainty and predictability to criminal proceedings in civilian jurisdictions, even though it arguably increases the chance of error and bias to the detriment of the accused.

 

SIMILARITIES IN CONCERNS, PROBLEMS AND RESPONSES OF ADVERSARIAL AND INQUISITORIAL SYSTEMS

 

 

Common problems and concerns

 

lncreased demand and stagnant or decreasing resources

 

 

 

 

 

 

 

 

 

 

 

 

The problem of delay

The relevance of what follows below lies in the realisation that both inquisitorial and adversarial systems face considerable internal criticism, and both are actively engaged in a search for solutions for perceived problems. The following paragraphs only sketch them briefly. They are relevant to any comparison of advantages and disadvantages of the two systems, and it is apparent that whereas the fundamentals of each system are probably difficult to transport, solutions to common problems offer interesting ways forward across jurisdictional boundaries.

 

The literature concerning difficulties faced by the system of criminal proceedings in inquisitorial and adversarial jurisdictions shows striking similarities. Both clearly face increased case loads due to criminalisation of conduct and greater incidences of urban and white-collar crime, in an environment of decreasing resources available for courts and prosecuting and forensic authorities in general because of fiscal, budgetary and political constraints. Two common concerns result: first, an increased tendency to exercise executive discretion not to prosecute on the part of police and prosecutors; and secondly, considerable delays in adjudication of criminal cases, resulting in unfairness and injury to accused persons, as well as to others. In Australia maybe more than in most civil law jurisdictions (partly because the issue carries less weight because of the non-adversarial nature of those systems), there is also concern about the under-represented accused, ie the lack of private or taxpayer funded resources available to accused persons.

 

Delay has been a major concern in civil law as well as common law jurisdictions. In civilian countries excessive terms spent on remand ('preventative detention') as a consequence of delay are regularly condemned. Delays between the commission of an offence and trial are said to be due to the inherent complexity of the system at the pre-trial stage, which is formal and in which duplication of tasks often occurs. On the other hand, delays are also due to the inability of courts to deal with the workload, and the unavoidable prioratisation that flows from it. In common law systems, party prosecution is said to cause delays either through dilatoriness or because of strategic considerations, and the courts are also insufficiently resourced to deal with the case load. Many cases are still dealt with by way of jury trials, that could arguably be dealt with summarily. This is despite the high proportion of accused

 

 

 

persuns whu plead guilty. The pruulem uf delay is universal, in that it always affects the quality uf justice and results in great persunal and financial custs.

 

 

Municipal criticism of systemic failings

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Concerns about victims of crime

 

 

 

 

 

 

 

 

 

 

 

Common responses to common problems

 

Devising a wide spectrum of alternative responses to criminal conduct

us well as at the resuurce and efficiency level, uuth adversarial and inquisiturial systems face systemic criticism frum within jurisdictiuns cuncerning justice, fairness and effective prutectiun uf rights, althuugh with differing emphases. Thus civil law systems are criticised (uy cuurts, academic authurs, the media, and agents uf the system) fur impinging un the rights uf the accused, and particularly the rights tu silence, the presumptiun uf innucence, excessive reliance un cunfessiuns and cuncumitant pressure tu cunfess (see the maxim '/oeconfesseoneeste/oereeneeeesepreuves'), assuciated lung periuds in preventative detentiun, the lack uf 'equality uf arms', and underuprusecutiun uf certain types uf uffences. Cummun law systems face criticism regarding effectiveness

uf furensic methuds uuth in preutrial and trial stages; equality uf arms, particularly in the case uf indigent accused persuns; universal right tu legal representatiun; impruper prusecutiun and furensic methuds; excessive pressures un witnesses and victims uf crime, particularly at trials; lack uf preu trial supervisiun and judicial management and cuntrul; uecause rules and prucedures uften impede estaulishing the truth; and juries ueing given sanitised and fragmented versiuns uf events in a manner nut cunducive tu identifying the truth, tu name uut sume.

 

Buth jurisdictiuns are typified uy increased cuncern regarding the rights and invulvement uf victims uf crime. ut the level uf efficiency, uuth in civil law and in cummun law jurisdictiuns there is great cuncern auuut the perceptiun uf victims that nuthing is dune tu deter reuuffending and endemic crime in certain areas. There is alsu cuncern at the inadequacy uf cumpensatiun availaule tu victims uf crime. ut the level uf systemsudesign,there is cuncern in cummun law systems that victims and witnesses are suuject tu great strains in underguing crussuexaminatiun, and in facing the accused in cuurt. In uuth jurisdictiuns, victims cumplain uf a sense uf puwerlessness and a lack uf respect and cumprehensiun in the criminal cuurts.

 

Buth in civil law and in cummun law jurisdictiuns cunsideraule attentiun has ueen fucused un devising a wide spectrum uf alternatives tu the 'urthudux' system uf criminal prucedure (that is, the judicial determinatiun uf criminal matters). There is a muve away frum a unified system where there is une way uf duing things, plus sume lesser alternatives, tu une where the essence uf the system is flexiuility and the availauility uf alternatives uf equal value that are well adapted tu the circumstances uf each case (if yuu like, a hulistic appruach tu criminal cunduct). There is a cummun attempt tu devise a system in which the respunse is mure finely attuned tu the nature uf the uffence and th

 

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that the responses can be rendered more effective by such an approach. Only in a minority of cases is the traditional judicial route seen as the most appropriate. Thus the development of alternative response systems is a quality alternative, one that can improve the results of the system as a whole, not one where cheaper but less desirable alternatives are substituted for 'the one right way' in a search for savings.

 

At the same time both systems have engaged in a search for acceptable incentives to take up alternatives, and to find in those incentives, an acceptable balance between the extent of the incentive and respect for the rights and freedom of choice of the accused. Appropriate circumstances for making the choice must be devised. Above, under the heading 'Guilty pleas and abbreviated processes', some of the alternatives used in civil law jurisdictions are mentioned; below under 'Conclusions', some further discussion of alternatives is to be found.

 

Irrespective of alternatives to the judicial approach (that is, 'diversion'), neither inquisitorial nor adversarial systems are monolithic and without choice. Both common law and civil law jurisdictions have for a long time now been marked by the development of two tiers within the orthodox structure of criminal proceedings (ie, ones that are centred on adjudication by a judicial body). In common law jurisdictions, the full jury trial (with a jury) versus summary proceedings and guilty pleas; in civil law jurisdictions, major cases conducted under the control and supervision of an investigating magistrate versus more summary processes in other cases. The balance between those two systems, and the accessibility of the 'Rolls Royce' system, are a matter of concern in both systems. Naturally that concern cannot be analysed in isolation from consideration of the development of non-judicial methods of dealing with offences.

 

Underlying the question of alternatives and diversion is the issue of cost. Certainly in common law jurisdictions, the full-blown trial is seen as cost- intensive, and therefore there is pressure to limit the incidence of full-scale trials. In the civilian system, trials themselves are on the whole less expensive, being less time consuming and involving fewer personnel. Jury trials are extremely rare. Nonetheless, the degree of duplication and waste of resources because of the statutorily prescribed involvement of judicial police, prosecutors, and investigating magistrates (the latter at least in major cases) may significantly affect the cost to the state of such a system.

 

 

Addressing the problem of delay

There is also a common desire to find solutions for the problem of delay. In common law countries there has been a call for more summary trials. Ways of dealing informally with matters soon after the commission of an offence (diversion) have been introduced in both kinds of jurisdictions. Again, the difficulty experienced in both jurisdictions is how to devise an acceptable

 

 

 

balance in the imposition of diversionary measures between discretion and

/ega/ity. In other words, most systems want to give more discretion to (non- judicial) officers who come into contact with an offender early in the piece, but on the other hand seek to retain judicial and legal control and supervision over those processes. Supervision and control, however, add to delay and cost. In all these matters, the issue of choice is the key, ie to ensure that there is a genuine choice for an alleged offender to have recourse to the courts, and not be under excessive pressure to submit to diversionary measures, which lack judicial supervision and impartiality.

 

The sssuuupppeeerrr111111iiisssiiiooonn of the pre-trial stage

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common interest in different jurisdictions

One of the main issues in considering reform of the adversarial system, is how to introduce both greater judicial management, and also greater judicial contro/ and supervision, over the pre-trial stage of criminal procedure. This is both with the aim of avoiding unnecessary costs and delays, and with the aim of improving the forensic process and the protection of the rights of the accused. The difficulty facing us is how to introduce effective change of that nature within the framework of an adversarial system.

 

Although the extent of judicial control and management in the pre-trial stage is far greater in inquisitorial systems (indeed this is in a sense the essence of the difference between the two), controversy over appropriate judicial supervision of the pre-trial stage rages in inquisitorial nations also. The issue takes the following form: should the position of investigating magistrates (combining investigative and judicial functions) be abolished in favour of a supervising court or judge? The pros and cons of such a move are constantly debated; Italy has abolished the position of investigating magistrate (juge d'instruction) in favour of a specialist supervising court (juge de /'instruction;).49 Some argue that there are many benefits in retaining the position of investigating magistrate, as it allows for close supervision of the police investigation of an offence, rather than a hands-off role in which the investigating judge is little more than the puppet of the police.5O If in an adversarial system one were to introduce greater pre-trial judicial responsibility, it would tend to take the form of the juge de /'instruction, rather than that of the juge d'instruction, because the latter, with its joining of judicial and investigative functions in a single person, would be so fundamentally incompatible with an adversarial system that its introduction cannot realistically be contemplated. That is not necessarily the case with the former, as is further debated below.

 

It is striking to what extent both systems have looked to each other for solutions. The most radical experiment in this regard was probably undertaken in Italy,