2042 Adversarial v. Inquisitorial

Sunday, September 28, 2008

About three years ago I wrote an entry about what bothers me about American court procedures, as contrasted with the French system. While looking for samples of the LSAT, I found the following essay in a section on reading comprehension. It nicely describes the differences between the adversarial system (as used in the US) and the inquisitorial (similar to what is used in France). After reading this, which do you prefer? My conclusion, back in that early entry, was "If I were innocent, I'd want a French court. If I were guilty, I'd want an American court and a rich uncle. That doesn't sound nice at all."

There are two major systems of criminal procedure in the modern world--the adversarial and the inquisitorial. The former is associated with common law tradition and the latter with civil law tradition. Both systems were historically preceded by the system of private vengeance in which the victim of a crime fashioned his own remedy and administered it privately, either personally or through an agent. The vengeance system was a system of self-help, the essence of which was captured in the slogan "an eye for an eye, a tooth for a tooth." The modern adversarial system is only one historical step removed from the private vengeance system and still retains some of its characteristic features. Thus, for example, even though the right to institute criminal action has now been extended to all members of society and even though the police department has taken over the pretrial investigative functions on behalf of the prosecution, the adversarial system still leaves the defendant to conduct his own pretrial investigation. The trial is still viewed as a duel between two adversaries, refereed by a judge who, at the beginning of the trial has no knowledge of the investigative background of the case. In the final analysis the adversarial system of criminal procedure symbolizes and regularizes the punitive combat.

By contrast, the inquisitorial system begins historically where the adversarial system stopped its development. It is two historical steps removed from the system of private vengeance. Therefore, from the standpoint of legal anthropology, it is historically superior to the adversarial system. Under the inquisitorial system the public investigator has the duty to investigate not just on behalf of the prosecutor but also on behalf of the defendant. Additionally, the public prosecutor has the duty to present to the court not only evidence that may lead to the conviction of the defendant but also evidence that may lead to his exoneration. This system mandates that both parties permit full pretrial discovery of the evidence in their possession. Finally, in an effort to make the trial less like a duel between two adversaries, the inquisitorial system mandates that the judge take an active part in the conduct of the trial, with a role that is both directive and protective.
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