Is Australia’s Legal System Adversarial Or Inquisitorial?

It has been an enduring habit among legal scholars to consider in terms of families of law: civil law families on the continent of Europe, common law families in Great Britain and her former colonies. Though differences within these systems are typically often considered as incidental, those between them are seen as necessary. From a comparative angle, the stimulating question arises whether the legal systems of continental and common law countries typically portrayed as completely opposed are gradually converging.

If that is certainly the case, does this entail that both systems will ultimately adopt so many of each other's description as to become no more than deviations on a theme their differences no longer important. It is also probable that the two systems are moving towards each other, but that junction beyond a definite point is out of the question for the simple reason that there is a decisive limit at which each system would start to risk degeneration.

This implies and it might be particularly true in the field of criminal justice that these systems are the personification of such divergent norms and values in the field of criminal justice, in their turn reflecting reflective societal values that they can never be brought as one entirely. And there is, obviously, a third and more radical prospect. Countries with diverse legal traditions like Australia, often faces similar problems, but have usually resolved them in contrasting and sometimes outwardly incompatible ways.

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As knowledge of, and expertise with, other systems increases, it is alluring to seek new resolutions in the experiences of others. But the feasibility and suitability of specific mechanisms and processes might often be linked to their context the norms and standards of the system as a whole. The inquisitorial system is depicted as the investigation of an occasion and the persons concerned in that event by the state with a view to ascertaining the truth--the state particularly present in the 'fact-collecting' prosecutor on the one hand and, on the other, an unbiased and independent judge enthusiastically involved in truth finding.

The adversarial system raise images of peaceful medieval folk gatherings under holy oaks, disputes solved willingly and satisfactorily by means of expletives before the elders of the tribe. The implication of inquisitorial proceedings is very much more appalling: the sinister red robes and piercing hats of an invincible Inquisition from which there is no escape, and the institution of 'truth' by means of confessions, taken out, if necessary, under torture.

Both ideas are, of course, quite preposterous when applied to modern criminal justice, and even in their conventional (i. . ideal typical) forms, the aims of adversarial and inquisitorial justice are much closer than the classical models entail. Both systems have the finding of truth as an elemental aim: the principle that the guilty must be punished and the guiltless left alone. Yet whatever the system, it is certainly fundamental that the truth in thus far as it can be established must be established in what is considered as a fair, and therefore communally legitimate, way. It is not here that the two systems differ, but in their elemental assumptions as to the best way of going about things.

Thibaut and Walker (1975, 1978) initiated a significant line of research on the nature of diverse dispute resolution procedures. This research comprises public perceptions concerning which procedures were fairer than others for determining certain disputes. Thus, the inquisitorial system, and the adversarial system are alternating methods of inquiry are predominately used to hold criminal cases. In an inquisitorial system, as one attorney who is court selected and assists the judge in investigating the case and presenting the facts for both sides. Attorneys in the inquisitorial system are unbiased and are not advocates for either side.

In contrast to this, the adversarial system employs two attorneys signifying each side of the dispute. The prosecutor serves as an advocate for the state's position and the defence attorney represents the defendant. The adversarial system is found on the premise that competition will stimulate both attorneys to conduct a thorough investigation, which will result in a more systematic and unbiased presentation of the evidence. Advocates of the adversarial system state that the lack of competition in the inquisitorial system might produce a less thorough investigation of the case than that which takes place in the adversarial system.

Research has tested this assertion. Lind, Thibaut and Walker ( 1978) assigned law students to either the task of adversarial attorney or the role of inquisitorial attorney. To stimulate the students to take their task seriously, the law students were told that undergraduate students were implicated in the case as disputants and decision makers and that the outcome had real consequences. The law students also had an individual incentive to take the task sincerely: They were informed that the extent of their payment would depend on how well they complete the task.

In addition, the researchers diverse the strength of the case against the client: Either 25, 50, or 75 percent of the confirmation supported their client. To test whether the adversarial system formed a more thorough investigation than the inquisitorial system, researchers requisite the "attorneys" to acquire facts about the case (the cost of which would be taken off from their eventual payment) and examined whether the number of facts bought speckled by the role of the attorney.

Adversarial and inquisitorial attorneys did not diverge in the number of facts they collected when the evidence was ambiguous (50 percent in favour of one disputant; 50 percent in favour of the other disputant) or favoured the adversarial attorney's client. However, when the evidence was more devastating against the adversarial client's position, the adversarial attorney bought a larger number of facts than did the inquisitorial attorney. The researchers also examined the degree of overall bias in the presentation of facts to the court whether the facts accessible in court reflected the universe of facts which the attorneys had received.

Inquisitorial attorneys offered an unbiased presentation of facts for all cases as their role requisite. The adversarial system, however, produced a deformed presentation of the evidence if the case was more obvious (75 percent of the evidence favoured one disputant's position), but produced an unbiased presentation of the evidence if the case was indefinite (50 percent favoured one disputant's position and 50 percent favoured the other disputant's position).

For the cases where proof devastatingly favoured one disputant, the adversarial system overrepresented the sum of evidence that favoured the disputant who had more actual facts against her, but the inquisitorial system offered an unbiased presentation of the facts. What do these findings say concerning the accuracy of the adversarial and inquisitorial systems? First, the inquisitorial system emerges to provide as thorough an investigation and as a precise presentation of the evidence for ambiguous cases.

When the evidence is devastating against one disputant, the adversarial system offers a more thorough investigation, but a presentation which disfigures the overall array of evidence against the disputant. This verdict can be judged both optimistically and pessimistically. The diligent investigation, but distorted presentation could have an affirmative benefit: "[I]t would reassure that a full investigation would be conducted even if the preliminary evidence seemed, erroneously, to designate an 'open-and-shut case'" ( Lind and Tyler, 1988, p. 5-26).

Inquisitorial attorneys, however, did not impulsively stop investigations. Moreover, other researchers have found further biasing effects of adversarial systems. Witnesses interviewed by adversarial attorneys present the proof in a biased way that favours the side for which they are confirming. These biases are much less marked when witnesses are interviewed by inquisitorial attorneys. Within the criminal justice system, however, fundamental relationships between parties and within state institutions are varying.

Concerns regarding organized crime have resulted in escalating emphasis on secret undercover operations in criminal investigation--with all the dangers of set-up, cover-ups, and inherently complex verifiability and control. These developments leave a few traces in the dossier or even no map out at all. As the police gradually more come to see themselves as a party opposing (organized) crime, doubts concerning their definite commitment to truth-finding increase, and they lay themselves open to arraign of partisanship.

At the same time and simultaneous to the foregoing, the other integral guarantee that the dossier will be ingenuous is also under pressure. There are plans to hold back the truth-finding role and equivalent powers of the investigating judge (numerous countries with inquisitorial procedures have already done so), which will provide the public prosecutor the exclusive functionary accountable for the collection of evidence, with the investigating judge simply approving the use of intrusive investigative techniques by others.

This corresponds with the improvement of the prosecution service as quickly becoming the central government organization where strategy decisions are made on how to contract with crime, while destabilization the quasi-judicial and objective position of the prosecutor in continuance the due administration of substantive justice. The end result might well be a more adversarial relationship between resistance and prosecution, as the possibly deteriorating reliability of the dossier as an indication of 'pre-trial truth' inexorably involves the defence more in truth-finding.

There is another reason why we should expect more energetic involvement by the defence in pre-trial assessments. In an ideal-typical inquisitorial system neither side has any right to let the case rest, or to bargain concerning its outcome or about the way in which it will be tried. The Dutch system has never been completely inquisitorial in this sense prosecutors have always been capable to drop individual cases for reasons of public interest pertaining to the case.

In addition, modern tendencies have resulted in various ways of settling cases out of court with or without circumstances like the payment of a lawfully fixed or negotiated sum of money. subsequently the prevalence of negotiations between defence and prosecution is on the rise; even not called plea bargaining yet, the terminology has appeared in official documents. In adversarial systems, every party is accountable for developing evidence to support its arguments. Investigation is stimulated by self-interest rather than public interest.

There is no investigating judge to search for 'truth' and, despite official oratory about fairness in prosecution, the actual legal duties of police and prosecution lawyers do not extend to seeking out exculpatory evidence. certainly what constitutes the truth is subject to conciliation by the parties. Extensive plea bargaining merely produces an agreed approximation of events on which to support conviction and sentence. It is infrequent for any judicial authority to face these agreed assertions.

Procedural directive and structuring of the pre-trial process is conventionally limited. The system starts from a model of challenge linking equal and private parties and therefore the supposition that the state need simply provide an arena for the declaration of the conflict. The initial reliability of this model is maintained by confrontation to the development of a state police and the use of awful inquisitorial techniques of questioning under detention, and to the improvement of an organized public party to the pre-trial procedure equipped with restricted powers.

In the lack of these state institutions and powers, the suspect, with his right to snub to confirm or to co-operate, is in a position to retain his interests devoid of detailed pre-trial procedural rules. Indeed, with both parties accepted to develop separate and challenging accounts rather than to work from a single case file, the strengthening of a dossier with evidential significance is impractical in a system where the evidence that counts is oral evidence at trial.

In contemporary times the adversarial system has gradually more adopted the instruments of inquisitorial investigation: a structured police force and overt recognition of police power to restrain and interrogate so as to generate evidence against the suspect. This makes the traditional adversarial view of two equal, private parties difficult to protract. To the inquisitorial eye this moderated status of the accused is instantaneously recognizable: the suspect as objective of truth-finding in the hands of the state.

Moreover, regardless of the potentially imprecise outcomes which may result from adversarial systems in definite cases, an agreement exists in terms of public opinion. People from the United States, France, Great Britain, and Germany all have a preference on adversarial procedures more than inquisitorial dealings for handling their disputes ( Thibaut, Walker, 1978; Lind and Tyler, 1988; Lind, 1994). Thus, even in countries like France where trials follow an inquisitorial procedure, citizens favour pure adversarial procedures over the inquisitorial system (Lind and Tyler, 1988).

Despite of whether respondents imagined they were the destitute party or the disputant who had the advantage, they favoured adversarial procedures. The most significant perception shaping their preference was the professed fairness of the process. Yet when respondents were unaware of whether they had the advantage or not, respondents consigned most importance to the fairness of the procedure as compared to their perceptions concerning the likelihood of receiving a constructive outcome or their observations about the amount of power over they would have over the decision making.

Thus, Public preferences might be out of line with the definite accuracy of adversarial procedures. The public prefers adversarial procedures above inquisitorial procedures because they are seen as more expected to generate a fair process which consecutively will lead to a fair outcome. What is less clear is why the public think adversarial justice is more expected to generate a fair outcome. Confidence in the adversarial mode could spring from some intrinsic distrust of state-controlled adjudication.

More modern cross-cultural research with United States, Hong Kong, and Germany citizens further validates the significance accorded to procedural fairness in forming preferences, and divulges that people place significance on procedural fairness because they value association issues (Lind, 1994). More recent research, however, has extended the procedural options presented to respondents and has found that people favour initially to handle their disputes through negotiation or urging (Lind, Huo, and Tyler, 1994).

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