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

is no reason in principle why an adversarial system could not adapt, while yet ruling out a wholesale adoption of an inquisitorial model.

 

In both systems a large number of cases is effectively determined before trial. Considerable discretion has been conferred on non-judicial bodies in the pre-trial stage. In the common law world this occurs, inter a/ia, through guilty pleas and plea-bargaining and in the choice of various diversionary processes made available to non-judicial authorities by statute. In civil law countries this occurs through the development of extra-legal discretion on the part of judicial police and prosecutors, as well as through various statutory diversionary powers (more assumption of discretionary powers than conferral by law).

 

It is clear though that there is major concern both about the nature and qua/ity of the choices available at the early stage of the process, and about the manner in which the choice is executed. Given that fact, and certainly if further non-judicial alternatives and alternative adjudicative processes are to be developed, there is a greater need for both effective judicial (ie objective and non-partisan) control and supervision of pre-trial decision making, and for greater judicial management. However, the risk of increasing cost unnecessarily through the creation of new supervisory structures must be avoided. Greater judicial management has the potential of saving costs and sparing resources, and greater judicial supervision could result in increased use of cheaper (and possibly more effective) diversionary measures. With those goals and concerns in mind, the centra/isation of existing functions in a pre-tria/ court, with some additiona/ powers of supervision is one possible option.

 

 

The following brief paragraphs give some indication of how a 'pre-trial court' may be introduced while maintaining some of the advantages of a basically adversarial model. The resulting system would have much in common with the Italian law of criminal procedure.

 

These suggestions are embryonic and are put forward for consideration and comment.

 

 

 

A pre-trial court

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

What the public thinks according to the QLD Law Committee

The specialised pre-trial court would effectively have as its exclusive jurisdiction the management, supervision and control of all the incidents of the pre-trial stage. Its powers would be, inter alia, to review decisions about diversionary measures (eg an agreement between the prosecution and accused to resolve a case in a certain way, for instance by the payment of an agreed fine, or performance of community service). Alternatively, it would determine or review a decision to proceed with a case in a certain judicial manner, for instance on the basis of a written file only, or by a summary trial or a full jury trial. It could also determine which court should hear a case.

The court would also be responsible for the granting of investigative or forensic powers such as search and seizure, remand, issuing of warrants (all measures that affect the rights and freedoms of the accused) upon the application of the police or prosecution.

The pre-trial court would further have an important role relating to evidentiary matters. It could resolve questions relating to the admissibility of evidence at an early stage. It would be responsible for the appointment of neutral experts, maybe even for the taking of evidence in cases where there will be no opportunity to repeat the evidence in oral form if an oral trial is ultimately ordered. Such a court could also have a more extensive management role, with the ability to impose time restraints upon parties, to order the exchange of information between parties and the identification of issues in dispute. The powers of such a court could incorporate the conduct of committal hearings if such proceedings are to be retained.

The advantages of such a specialised pre-trial court would be early and appropriate intervention; preventing the loss of certain forms of evidence; more effective management of cases; judicial supervision of the free choice of the accused, and consistent policy development, amongst others. Early intervention at a judicial level can prevent party dilatoriness. It can also speed up the occurrence of the trial, thus improving the quality of evidence heard at a trial, and also benefiting the accused. Greater judicial supervision may also allow a case to proceed without jeopardising both the rights of the accused to prepare an adequate defence, and the rights of the prosecution to prepare a case thoroughly.

Bill Potts president council for the Queensland Law Committee founded a interesting survey with other lawyers to demonstrate how effective the inquisitorial system would be in Australia. “The Committee had a deep look into the positive features of the inquisitorial system, if judges become investigating officers of the court where they examine and determine the truth of the case the inquisitorial features can ultimately be implemented in Australia as it makes the current legal system more effective whilst helping and ensuring victims are getting the justice they deserve.”

 

 

 

 

 

 

It is obvious that a trial judge with ultimate responsibility for fact finding is not an aspect of the inquisitorial systems that is appropriate for introduction in a basically adversarial system. Such a change would amount in effect to a wholesale introduction of an inquisitorial model. Nonetheless, a more interventionist brief could be given to trial judges within the confines of an adversarial model. For instance, by the grant of power and incentive to stop inappropriate or irrelevant cross-examination (even though the power exists, it is too infrequently exercised); of power (though limited and closely circumscribed) to ask questions of a witness; or power to order further forensic measures in cases where there is a clear need.

 

 

 

Judges could also be responsible for the appointment of independent experts who can be cross-examined by both sides, and that have to provide expert evidence in written form to both parties prior to trial. The appointment of the expert could be made by the pre-trial court.

 

 

 

 

A further area for reform may concern the general applicability of exclusionary rules of evidence. Naturally, some rules of evidence are the necessary consequence of having oral trials, be they before juries or judges alone; even so, where an oral trial is conducted before a judge it may be that many of the exclusionary rules of evidence could be further relaxed. In other words, there could be, like in some civilian systems, one set of rules applying to jury trials, and one to non-jury trials.

 

 

A possible model, and a process that is of course typical of inquisitorial systems, is to have at least the option of a documentary summary proceeding (as per the European models discussed above, see 'Guilty pleas and abbreviated processes'). Such evidence may well be open to challenge by the accused, in the form of witnesses, but any disputes about the documentary evidence itself could be resolved at pre-trial hearings. Naturally, proceeding via this route should be subject to the freedom of choice of the accused, even if appropriate incentives could be made available, and to appeal to a court that would re-hear the case on a more adversarial basis.

 

 

Development of a code of criminal procedure may also be considered worthwhile.

 

 

 

Further comparative study

The most useful comparative investigations would be into the abbreviated processes being developed in various inquisitorial jurisdictions, such as the incidente probatorio and the guidizio abbreviato on the basis of the dossier alone,55 or the German or French models mentioned above. In general, a closer study of the Italian model as a whole may provide useful insights, as well as of some of the hybrid multinational models being developed.

 

 

 

 

 

 

 

SUMMARY OF PROPOSALS

(Although sub-section I.3 is primarily concerned with identifying advantages and disadvantages of the adversarial system, a number of proposals have been formulated in the course thereof. A summary of the proposals outlined follows. Major options are found under the heading 'Conclusions'.)

 

 

 

 

 

 

ENDNOTES

See further below. See also B De Smet, 'De inquisitoire onderzoeksmethode op de beklaagdenbank' ['The inquisitorial method of investigation in the dock'] (I995) Panopticon 34I.

See the various public submissions made under this reference to the LRCWA.

See eg in E Whitton, The Carte/, Lawyers and Their Nine Tricks (I998).

For a useful recent work describing the various European systems of criminal procedure, see C van den Wyngaert (ed), Crimina/ Procedure Systems in the European Community (Butterworths, I993). See also for a less theoretical account, B McKillop, Anatomy of a French Murder Tria/ (I997). A useful description in English is also given in Royal Commission on Criminal Justice (L Leigh, L Zedner), A Report on the Administration of Crimina/ Justice in the Pre-tria/ Phase in France and Germany Research Study No I (London: HMSO, I992). Some detail concerning the distinctions between various systems is also given in JF Nijboer, 'Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective' (I993) 4I American Journa/ of Comparative Law 299 (an article that also reviews William Twining's, Rethinking Evidence (I99O)). As to the law in Belgium, in Dutch: see C van den wyngaert , Strafrecht en strafprocessrecht in hoofd/ijnen (MAKLU, I994). Although Italy is listed here as an inquisitorial system, that is no longer truly the case, since the introduction of the New Code of Criminal Procedure, the Codice Vassa//i, in I989, which substituted an adversarial system of criminal proceedings for the inquisitorial model represented by the previous Codice Rocco (I93O).

Although in both systems individuals can set the machinery of the state in motion, eg by launching a private prosecution in common law countries, or by requiring the juge d'instruction to undertake an official investigation by a requisition by the partie civi/e, where the prosecutor has refused to take the case any further.

The monopolisation of criminal prosecutions, and of the use of force and compulsion in the hands of the state, has as its counterpart the prohibition of the use of retributory force by private citizens.

In this context the law of evidence relating to criminal cases, is treated as part of the law of criminal procedure.

Note Geoffrey Davies J, 'Fairness in a Predominantly Adversarial System' (I997) 7I Reform 47.

For an interesting perspective on this question, see WJ Stuntz, 'The Uneasy Relationship Between Criminal Procedure and Criminal Justice' (I997) IO7 Ya/e Law Journa/ I, and the response by DK Brown, 'Criminal Procedure, Justice, Ethics and Zeal' (I998) 96 Michigan Law Review 2I46.

IO For instance, a totally inefficient system of criminal procedure will defeat the goal of deterrence that substantive criminal law pursues. Conversely, substantive criminal law that strives for absolute, rather than relative deterrence, will place unbearable strain on the law of criminal procedure.

For instance, the standard of proof 'beyond reasonable doubt' is not a standard of absolute certainty; such a standard would have important resource implications; it is also not the same as the civilian standard of proof, the in time conviction, which applies in civil and criminal cases alike.

I2 For a discussion concerning possible limitations on reform of an adversarial system, see DA Ipp, 'Opportunities and limitations for change in the Australian adversarial system' (Paper presented at the Australian Institute of Judicial Administration Conference, Brisbane, August I997).

I3 See eg Phil, Fennell (ed), Crimina/ Justice in Europe: A Comparative Study (I995), Ch I9 (Conclusion: Europeanization and Convergence: The lessons of Comparative Study). See also CM Bradley, 'The Convergence of the Continental and the Common Law Model of Criminal Procedure (I996) 7 Crimina/ Law Forum 47I.

I4 Most striking example is the introduction of an adversarial system of criminal procedure in Italy (see above n 4). But other inquisitorial jurisdictions are showing a keen interest in adversarial systems; see eg B De Smet, 'De versnelling van de strafrechtspleging met instemming van de verdachte; is de invoering van een 'guilty plea' naar Angelsaksisch model wenselijk?' ['Accelerating criminal procedure with the consent of the accused; is the introduction of a 'guilty plea' after the Anglo-Saxon model desirable'] (I994) Panopticon 42O; see also the report of the French parliamentary mission to the UK to look into the functioning of the adversarial system.

I5 See, J Pradel, Ch 4 'France'and P Corso, Ch 8 'Italy' in C van den Wyngaert (ed), Crimina/ procedure systems in the European Community (I993) IO5-I35 and 223-259.

I6 A seminal contribution to the understanding, in common law jurisdictions, of this dichotomy was made in S Goldstein and M