Chapter 9
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A system of trial where the court is actively
involved in determining the facts and conduct
of trial.
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Originated – 1000 year Roman law
Variations of this system used in Europe, Asia
and South American countries.
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Due to judges having more control, parties
have a reduced role.
Required to respond to the directions of the
court
Can reduce the effect of inequalities between
the parties
Places control in the hands of the third party
Judge takes a more active role
Includes:
 investigating issues,
 Defining the issues to be resolved
 Gathering evidence (together with police)
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France – d’intruction (investigating magistrate)
Conducts the investigation, supervises the police
work, finds and questions witnesses and
suspects, orders searches and finds evidence
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The objective is to find the truth of the
matter
How? By finding both incriminating and
exonerating evidence.
Compiles a documentary record establishing
facts of the case called a (dossier)
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Can call witnesses/question
Not restricted to issues at question in the trial
Even raise matter that are considered
irrelevant by the parties.
‘The effective operation of the legal system is
of benefit to society as a whole. Therefore it is
the responsibility of the state to ensure that
the relevant information is brought out and
the truth is reached.’
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Lesser role due to judges active role
Assist judge with finding out the truth
This may include further questioning of
witnesses
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No formal burden or standard is set
Judge is personally responsible for bringing
evidence and finding out the truth.
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Emphasis on finding out truth
Less reliance on strict rules of evidence and
procedure
Many of exclusionary rules for evidence do not
apply
Extensive use of written evidence and witnesses
are able to tell their side of the story,
uninterrupted and in discursive form rather then
answering to questions
Could also include character evidence and prior
convictions
1.
2.
3.
4.
5.
6.
Decision maker more active role
Witnesses are mostly called by decision
maker
Less reliance on legal rep
The decision maker controls the production
of evidence
Cost of inquisitorial system is mainly born by
the state
Use of mainly written statements reduces
costs
1.
2.
3.
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The judge is less impartial
The parties may feel at the mercy of the
investigating judge
Parties not able to call own experts
Greater reliance on written evidence
Judge is aware of character reports and past
records
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Answer the 3 questions.
Circle key words
Plan your response – e.g. each paragraph
new idea
Draft your answers in dot points
Compare and contrast the operation of the
adversary system with the operation of the
inquisitorial. (Page 473 to475)
2. What features of the inquisitorial system are
currently used or can be used in the future to
improve the adversary system? (Page 475 to480)
3. Discuss how at least three features of the adversary
system of trial that aim to provide a fair and
unbiased hearing. In your discussion explain whether
these features are successful in contributing to a fair
and unbiased hearing or whether these features limit
the achievement of a fair and unbiased hearing.
(Page480 to 481)
1.
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Read and summarise pages 492 to 504
The jury system