This is a powerpoint slideshow on evaluating legal systems

1. Evaluating legal systems –
Inquisitorial and Adversarial.
Chapter 13

2. What is the Inquisitorial System
• A method of legal practice in which the judge endeavors to discover facts
while simultaneously representing the interests of the state in a trial.
• The inquisitorial system can be defined by comparison with the adversarial,
or accusatorial, system used in the Australia, United States and Great Britain.
• In the inquisitorial system, the presiding judge is not a passive recipient of
information. Rather, the presiding judge is primarily responsible for
supervising the gathering of the evidence necessary to resolve the case.

3. The Origins
• The inquisitorial system was first developed by the Catholic Church during
the medieval period.
• The ecclesiastical courts in thirteenth-century England adopted the method
of adjudication by requiring witnesses and defendants to take an inquisitorial
oath administered by the judge, who then questioned the witnesses.
• The system flourished in England into the sixteenth century, when it became
infamous for its use in the Court of the star chamber, a court reserved for
complex, contested cases.

4. The Origins
• Under the reign of King Henry VIII, the power of the Star Chamber was
expanded, and the court used torture to compel the taking of the
inquisitorial oath.
• The Star Chamber was eventually eliminated as repugnant to basic liberty,
and England gradually moved toward an adversarial system.

5. The Evolution of the Inquisitorial system.
• After the French Revolution, a more refined version of the inquisitorial
system developed in France and Germany.
• From there it spread to the rest of continental Europe and to many African,
South American, and Asian countries.
• The inquisitorial system is now more widely used than the adversarial system.
• Some countries, such as Italy, use a blend of adversarial and inquisitorial
elements in their court system.

6. The Inconsistencies
• The court procedures in an inquisitorial system vary from country to
country.
• Most inquisitorial systems provide a full review of a case by an appeals court.

7. Criminal Trials
• In most inquisitorial systems, a criminal defendant does not have to answer
questions about the crime itself but may be required to answer all other
questions at trial.
• Many of these other questions concern the defendant’s history and would be
considered irrelevant and inadmissible in an adversarial system.
• A criminal defendant in an inquisitorial system is the first to testify.

8. Criminal Trials
• The defendant is allowed to see the government’s case before testifying and
is usually eager to give her or his side of the story.
• In an adversarial system, the defendant is not required to testify and is not
entitled to a complete examination of the government’s case.
• A trial in an inquisitorial system may last for months as the presiding judge
gathers evidence in a series of hearings.

9. Presumption of Innocence
• A criminal defendant is not presumed guilty in an inquisitorial system.
• since a case would not be brought against a defendant unless there is
evidence indicating guilt, the system does not require the presumption of
innocence that is fundamental to the adversarial system.

10. Decisions
• The decision in an inquisitorial criminal trial is made by the collective vote of a
certain number of professional judges and a small group of lay assessors (persons
selected at random from the population).
• Neither the prosecution nor the defendant has an opportunity to question the lay
assessors for bias.
• judges vote after the lay assessor's vote, so that they do not influence the
conclusions of the lay assessors.
• A two-thirds majority is usually required to convict a criminal defendant, whereas a
unanimous verdict is the norm in an adversarial system.

11. The Parquet
• This is a division of experts trained as investigating judges
• It is also known as a standing judiciary.
• Although it is called a standing judiciary, members of the parquet are not
trial judges or part of the judicial arm of government
• The parquet is a branch of French executive (The Government).
• It acts like the department of public prosecution in WA

12. Roles of the parquet
• It fulfils the roles of the prosecutors and magistrates in minor offences.
• This is similar to summary offences in Australia.
• The parquet performs a combined judicial and executive function when resolving minor
criminal cases.
• In more serious criminal cases there is a stronger separation of executive and judicial
functions.
• The parquet is responsible for initiating the trial.
• As the accusing party, a member of the parquet must start a trial by conducting an initial
investigation to determine if the case should be referred to a judge instructeur.

13. The Judge Instructeur
• The parquet commences a criminal trial by seizing a judge instructeur.
• This is a formal procedure performed by requesting a Judge Instructeur to carry any act that will assist in
discovering the truth.
• A Judge Instructeur is not part of the parquet, they are part of the separate judiciary.
• The Judge Instructeur is the trial judge.
• Once a Judge Instructeur takes action to discover the truth, the machinery of trial is engaged by law and
cannot be stopped.
• Actions of the Judge Instructeur can be appealed by the parquet, but the trial itself is now independent of
the parties and in the hands of the judiciary.
• Even an admission of guilt by the defendant will not end the trial, nor can the parquet abandon a trial.

14. Roles of the judge instructeur
• Direct the police to investigate and gather evidence
• Direct the gendarmerie to investigate and gather evidence
• Interview witnesses and take their statements in written form,
• Order a confrontation,
• Interrogate the defendant in camera and not under oath, but with the defendants legal representative present,
• Decide if the defendant has a case to answer,
• Issue warrants to facilitate the collection of evidence,
• Order expert reports,
• Select evidence to include in the dossier
• Widen the scope of the inquiry

15. The Defence
• Once a case has been referred to a judge instructeur the defence has more
power.
• It can request investigations, interviews, and confrontations.
• A confrontation is a meeting of the accused and the victim for a discussion.
• The defence can only request the judge to investigate. It cannot do its own
investigation.
• There is no pleading of not guilty. However, a defence can plead guilty.

16. Pleading Guilty
• Pleading guilty is limited in the following ways:
1. Defendant under the age of 18 cannot plead guilty
2. Defendant accused of certain crimes (such as breaching press laws, manslaughter, and
political misdemeanours) cannot plead guilty,
3. The guilty plea can only be made with the agreement of the parquet,
4. A rejected guilty plea is not recorded in the dossier and thus cannot be used as evidence in
the trial,
5. A successful guilty plea does not necessarily end a trial, the investigation may continue
under the judge instructeur until there is satisfaction of sufficient evidence is gathered.

17. Rights of the accused
• The accused has the right to assistance by a lawyer
• A right to silence
• A presumption of innocence
• A right to know the allegations against them
• The right to legal assistance can be temporarily suspended (12 hours for minor and
24 hours for serious matters) by the parquet if considered necessary because of an
urgent need to gather evidence in order to prevent another offence from occurring.

18. Evidence
• The best French translation of the English word ‘evidence’ is prevue or
‘proof’.
• The phrase ‘evidence of proof by any means’ is better thought of as the
‘most obvious conclusion suggested’.
• It is important to note the difference in attitudes to the quality of evidence
suggested by this definition.
• This system of judiciary admits any relevant evidence rather than the high
standards of evidence used in the adversarial system.

19. Witnesses
• Most evidence is written and contained within the dossier.
• A testimony orally from a witness can however be used as evidence, especially in the
assize courts.
• The witness testimony is in the form of ‘telling their story’ rather than answering
questions.
• Witnesses will tell their story uninterrupted by questions from the parties or the
judge instructeur.
• Witness evidence is not subject to rigorous testing through cross examination.

20. Western Australian
Adversarial System

21. What is the
Adversarial
System
• The Adversarial system is the term used for any
countries that use the system of law known as the
‘Common Law’ system.
• Countries that use this legal system are:
1. Australia
2. UK
3. Canada
4. USA
• Adversarial means that each party to the case
presents argument and evidence in support of his
or her version of events to the court, and the
court decides whether the party that commenced
proceedings has proved their version of events to
the relevant standard.

22. Adversarial Systems
The court can only make
decisions on the issues that the
parties indicate to the court are
in dispute and decides only
based on the evidence and
argument presented to the
court by the parties.
The court does not conduct its
own investigation or construct
its own version of events.

23. Adversarial System
In most cases a judge or magistrate alone will hear the evidence and make the decision in a
case.
They are also responsible for imposing sentences in criminal cases.
In some cases, superior courts may sit with more than one judge (for example the High
Court or Federal Court sitting as a Full Court).
Juries are used for serious (‘indictable’) criminal cases, and for some civil and coronial cases.

24. Criminal vs
Civil
• Civil law is about resolving disputes, while
criminal law deals with crime.
• Civil law deals with relationships, agreements
and obligations between two or more parties,
covering a wide range of formal and informal
duties, obligations and rights:
i. Formal – terms, conditions and requirements
explicitly set out by contract or other
agreements
ii. Informal – obligations that aren’t written down,
but which are expected nonetheless
• By contrast, the purpose of criminal law is to
protect the community and punish the
perpetrators of crime.
• While civil cases are between individual parties,
criminal cases pit someone accused of a crime
against the community as a whole.

25. Remedies
and
Penalties
• The purpose of civil penalties is to
restore the affected party and to as best
as possible undo the harm caused by
the issue that triggered the civil case.
• While monetary compensation is the
most common remedy ordered by civil
courts, it can take all sorts of different
shapes, including transfer of assets and
property, as well as orders to stop or
commence work (all of which are
delivered directly to the plaintiff).

26. Criminal
Remedies
• By contrast, the purpose of legal
remedies in criminal cases are to:
i. Punish the offender
ii. Remove the offender from the community
iii. Deter other offenders
iv. Protect the community
v. Attempt to rehabilitate the offender
• Because of these different goals, the
penalties used in criminal law are
different from the ones in civil law.

27. Criminal remedies
• Each crime comes with a range of prescribed penalties as laid out
under the law of the specific jurisdiction, and may include:
i. Fines
ii. Prison time and suspended sentences
iii. Community service
iv. Mandated therapy
v. Suspension of drivers licenses

28. WA Court System
• In Western Australia we have 6 main courts these include:
• Superior courts (Supreme Court of Western Australia, Family Court of
Western Australia).
• Intermediate Courts (District Court, Children’s Court of Western Australia)
• Inferior Courts (Magistrates court, Coroners Court)
• All main courts have a criminal and a civil division.

29. Rules of
Evidence
in an
adversarial
system
• In the English language the definition of evidence is
“body of facts indicating whether an allegation is true”.
• Obviousness is a less damming definition.
• In the adversarial system evidence is:
i. collected by the parties
ii. Strict rules are given to what can be used to ensure
the quality of evidence.
iii. Parties must object to evidence if the judge is to
make a ruling on the validity of the evidence.
iv. High reliance on oral evidence, but importance of
written evidence is growing.
v. Witnesses answer questions asked by parties
vi. Character of defendant is not allowed as evidence.

30. Burden of Proof
• In Criminal cases the burden of proof is beyond reasonable doubt.
• This means that the onus of proof is extremely high.
• This is not the case for civil trials where the onus of proof is the balance of
probability.
• In the adversarial system the burden of proof rests with the prosecuting
party, the defendant has no burden of proof.
• This can be seen as an accused is innocent until proven guilty.

31. Roles of the Judge in adversarial systems
• The role of the judge is impartial to the case and should bear no bias.
• In the adversarial system judges are also known as passive judges meaning they do
not investigate nor do they question witnesses.
• Judges do not introduce evidence in the adversarial system nor do they compile
evidence or direct trials.
• The judge merely oversees the contest between two competing parties ensuring
both sides adhere to strict processes that enable procedural fairness.
• The judge is a neutral referee.

32. Roles of
the judge
in an
adversarial
system.
• Judges must also explain the reason for their
decisions. (Ratio Decidendi)
• This is the process of making sure judicial
thinking is transparent and subject to appeal
by either parties.

33. Role of the
Parties
• The prosecution (or plaintiff) and defence run the case.
• Each party must:
i. Find and present evidence
ii. Call and question witnesses
iii. Test evidence through cross examination
iv. Object to evidence that may contravene the rules of
evidence
v. Argue the meaning and interpretation of the law
vi. Open and close the case.
• Either party can close the case without any consent of the
judge
• The prosecution does this by abandoning the trial.
• The defence does this by pleading guilty
• The same power exists in civil trials, or they may reach an
agreement to resolve a dispute out of court.

34. Questions
1. Discuss the ‘rules of evidence’ in the
adversarial system.
2. Explain what is meant by the presumption
of innocence.
3. Investigate the rules of evidence in the
adversarial system and describe key strengths
and weaknesses of these features.
4. How is transparency and openness evident
in the adversarial system.