Adversarial versus Inquisitorial legal systems.

[lionking]

This is a spin-off from the Amanda Knox thread and some of the comments about the differences between the system used in the US (adversarial) and that used by many European countries, like Italy (inquisitorial).

A simple definition:



Inquisitorial system= when judge plays an aggressive role, he is almost like a prosecutor, a party

Adversarial system= its all about fight (two opposite sides), when judge tries to determine the truth of the case.




I know that in some jurisdictions the two systems can intermix. There are also Directors of Public Prosecution in Australia and elsewhere who play an inquisitorial role and decide whether the evidence is strong enough to mount a case. But the systems still have basic differences. For example, the skill of the lawyer would seem to be a more important factor in an adversarial system.
So I am interested in opinions about the two systems. Which, on balance, is superior and why?

[gumboot]

This is a spin-off from the Amanda Knox thread and some of the comments about the differences between the system used in the US (adversarial) and that used by many European countries, like Italy (inquisitorial).

A simple definition:


I know that in some jurisdictions the two systems can intermix. There are also Directors of Public Prosecution in Australia and elsewhere who play an inquisitorial role and decide whether the evidence is strong enough to mount a case. But the systems still have basic differences. For example, the skill of the lawyer would seem to be a more important factor in an adversarial system.
So I am interested in opinions about the two systems. Which, on balance, is superior and why?


The adversarial is superior, because that's what we use. :)

[drkitten]

I know that in some jurisdictions the two systems can intermix. There are also Directors of Public Prosecution in Australia and elsewhere who play an inquisitorial role and decide whether the evidence is strong enough to mount a case. But the systems still have basic differences. For example, the skill of the lawyer would seem to be a more important factor in an adversarial system.
So I am interested in opinions about the two systems. Which, on balance, is superior and why?

I think the inquisitorial system is superior in theory, the adversarial system in practice. Basically, if all of your judges are intelligent, objective, and fair, then the inquisitor can quickly and cheaply arrive at The Truth or at least a reasonable decision. Neither side has an incentive to play stupid legal games like changes of venue or delaying tactics or quibbles about whether or not this particular document is admissible evidence or not.

Of course, no country has the luxury of that type of judge. Which means that you can't count on a fair judge, so you need to find a way to incentivize "fairness" if it won't be delivered for free.

The problem with this is that these incentives get very expensive and time-consuming. One aspect of the American adversarial system that I really hate (although it can be quite lucrative) is the duelling-experts, for instance. Even in most adversarial systems (e.g. the UK, Canada, &c.), most "experts" are hired by the court and expected to be impartial (and can be punished for perjury if they're not). So if this particular medical malpractice case hinges on whether unobtainizol is a standard treatment for athlete's foot, rather than getting six shills doctors on each side, you just get the podiatrist from the local hospital to tell you what he uses, cutting your costs tenfold and reducing the likelihood that someone will be able to snow the jury with technobabble.

[Fiona]

I do not think the OP has got the difference quite right. I am not a lawyer nor an expert of any other kind and so my view may well not be right: there are such people here and they will no doubt correct me. It is all good if we learn. With that caveat this is my understanding:

In an adversarial system the first thing you have to grasp is that the aim is not to find the truth. At all. The aim is to test the evidence, and to arrive at a verdict through hearing the best argument which can be presented by each side to explain the facts and the evidence which is deemed admissable.

In this system it is presumed that one has two equal adversaries and that they will each present the best case they can. There are rules about what counts as evidence and much is excluded. Someone has to decide what is excluded and there are rules about this: for example hearsay is not allowed.

The role of the judge is to "hold the ring". To ensure that the rules are followed, that is. The jury's role is to listen to these two carefully constructed versions of events and to come to a fair and impartial decision. But it is not a decision about the truth: it is a decision about who won. No information, no matter how relevant, which is not presented as part of a case should be considered in making that decison

Once the case has been decided it is presumed that the best case has been presented for each side (because that is the assumption on which the system rests): it follows that an appeal can only be made on the basis that the trial in some way breached the procedural rules which are in place to ensure that the process is fair: or because new evidence has come to light which could not have been presented at the original trial: or because the verdict was "perverse": that is could not have been reached by reasonable people who heard the evidence presented. There may be other grounds for appeal but those are basic ones I think.

An inquisitorial system differs fundamentally because it is founded on the idea of getting to the truth. One consequence of that is that some kinds of evidence which are excluded from an adversarial hearing are admitted here. The inquisitorial entity (be it judge or prosecutor) investigates what he believes to be relevant and he can ask the police or anyone else to look into anything which he thinks has a bearing. In most such cases gaps or confusions can be explored in the court (judge's in adversarial systems can ask for clarifications and so can juries when they are deliberating: but they cannot ask for anything new, I think) not just for clarification about that which is unclear in the argument, but about omissions etc. For this reason such trials can look a little less formal (or even chaotic) compared to an adversarial system. But the reason lies in the fundamental aim: they overtly seek truth and the adversarial system does not.

That fundamental aim also naturally leads to an easier route to appeal. The appeal is heard "de novo" because there is not the same possibility of final judgement if the aim is to get to the truth as there is if the aim is to determine who won. The questions to be addressed can be far wider.

I do not agree with drkitten that there is a difference predicated on a utopian approach on the one hand and a pragmatic one on the other. Each has its ideal form: and each has its real world failings.

Both attempt to recognise their particular weaknesses and to put in systems to minimise those. I think they largely both succeed.

I do not know that either is to be preferred with this major exception: I do not think an adversarial system is able to deal well with offences against the vulnerable: such as those with mental health problems or children; or with charges against those groups.

The system assumes two equal adversaries and in those cases that is not true. The barristers and lawyers who represent them are to some extent dependent on what their client can give them: and in those cases the parties are not equally competent.

Here, if nowhere else, I think that the inquisitorial system is more flexible because it can admit all that is known: that is much harder for an adversarial system. There is some recognition of that. For example there are special "vulnerable witnesses" arrangements in this country which are in place because the problem is recognised. Perhaps they are enough: but the presumption is against their use and until recently they were very limited in application. Recently there have been major changes to these special provisions so that the status must be offered to children, for example, rather than having to be applied for. But there is still a problem for other vulnerable people who do not fall into an obvious group. And there is still also a tension because such arrangements challenge the very foundation of the system itself: they are used with reluctance.

[drkitten]

In an adversarial system the first thing you have to grasp is that the aim is not to find the truth. At all. The aim is to test the evidence, and to arrive at a verdict through hearing the best argument which can be presented by each side to explain the facts and the evidence which is deemed admissable.

I think that's a misstatement. The adversarial system is supposed to find the truth as well. The assumption is that the truth will out when both sides of a dispute (fairly) present their best case, and any rational person can weigh the two cases and determine which one is true.

The assumption behind the inquisitorial system, on the other hand, is that suitably chosen inquisitor given free license to inquire can determine what is true.

There's way too much at stake to treat the adversarial system as simply some sort of "game" to see "who won."

It may help to look at some of the precursors and see why the adversarial system failed. The idea of trial by ordeal, or trial by combat, for example, was also a way to "find the truth," on the assumption that God would make truth manifest. This assumption (to put it lightly) could not be established reliably.

The English, justifiably, did not trust their king or his appointed inquisitors, and the king lacked the authority to force them to accept it. Most of the Continent had stronger kings (and possibly more abusive barons) so the idea of the regal inquisitor sitting in judgment was more acceptable.


An inquisitorial system differs fundamentally because it is founded on the idea of getting to the truth. One consequence of that is that some kinds of evidence which are excluded from an adversarial hearing are admitted here.

Again, not... quite. You can show anything you like to the judge and he will make his decision about whether or not it's relevant or important; he fulfills the same role in an inquisitorial system. If you show him a dead vole or some other piece of trash, he will simply and silently disregard it, which has the same effect as ruling it inadmissible.

[Fiona]

I think that's a misstatement. The adversarial system is supposed to find the truth as well. The assumption is that the truth will out when both sides of a dispute (fairly) present their best case, and any rational person can weigh the two cases and determine which one is true.

Certainly. I was probably less clear than I should have been: it is an assumption that the truth will come out of that process. But it not an avowed aim: it is a premise that the truth will emerge in the course of this. If there is any reason to suppose that the process will not/has not achieved that, the truth loses out in favour of integrity of the procedure. I do not think that is open to doubt and I do not mean to imply there is anything wrong in the assumption. It is one way of approaching the problem and it certainly has its strengths.

The assumption behind the inquisitorial system, on the other hand, is that suitably chosen inquisitor given free license to inquire can determine what is true.

My turn: that is a mis-statement. The inquisitor pursues his investigation but the case is still heard by a jury and they determine what they believe happened. There are also very serious checks on the power of the inquisitor in that he must be able to convince independent judges that he has evidence on which to proceed. He has free licence only in that he can pursue lines of inquiry which seem relevant to him

There's way too much at stake to treat the adversarial system as simply some sort of "game" to see "who won."

I did not say it was a game: I said that who wins the formal argument is the essence of the verdict. Nowhere did I imply it is not a serious business and nowhere did I say it. But I do not think my characterisation is wrong.

The rest of your post does not seem to me to do what you set out to do but I do not propose to try to get my head round hundreds of years of judicial history in many countries with different systems in a post. It would necessarily be simplistic and I do not really see what it would add.

I will just say that neither system failed and to suggest that they did is odd

[drkitten]

I will just say that neither system failed and to suggest that they did is odd

Sorry, let me be more specific. The inquisitorial system was tried in England and failed there; the inquisitors were not trusted enough, and were viewed largely as an illegitimate extension of royal power. (See Carta, Magna.)

Hence the formalization of the adversarial system.

[Fiona]

The Scottish system is something of a hybrid, actually. But as I say, judicial history is beyond our scope here, at least in my opinion

[Tsukasa Buddha]

This has always interested me since we covered it in 9th grade Social Science. I thought it sounded like a good way to take care of the wealthy being able to get the best defence and the poor being told by a court appointed lawyer that they had better just plead guilty.

But I haven't found a good book for me to research how Inquisitorial systems work compared to the American Adversarial in the real world.

[lionking]

This has always interested me since we covered it in 9th grade Social Science. I thought it sounded like a good way to take care of the wealthy being able to get the best defence and the poor being told by a court appointed lawyer that they had better just plead guilty.

But I haven't found a good book for me to research how Inquisitorial systems work compared to the American Adversarial in the real world.

It's interesting in that many have said that Amanda Knox would be free now under an Adversarial system.

[Uncayimmy]

Certainly. I was probably less clear than I should have been: it is an assumption that the truth will come out of that process. But it not an avowed aim:

In many jurisdictions prosecutors are forced to turn over exculpatory evidence to the defense. The defense also has certain rights to the evidence the state intends to use. To me that indicates an avowed aim to get at the truth of whether the defendant committed the crime or not.

The prosecutors themselves are supposed to seek the truth, which is essentially what a judge would do in an inquisitorial system, the major difference is the former is in the executive branch and the latter in the judicial branch.

An inquisitorial system differs fundamentally because it is founded on the idea of getting to the truth.
Well, you certainly didn't convince me of this assertion.

[luchog]

This has always interested me since we covered it in 9th grade Social Science. I thought it sounded like a good way to take care of the wealthy being able to get the best defence and the poor being told by a court appointed lawyer that they had better just plead guilty.
That really isn't a failing of the adversarial system; however. In an inquisitorial system, the wealthy and influential have at least as much, possibly more, power in the courtroom, due to class privilege. This is a large part of the reason that the inquisitorial system failed in England. It was seen as protecting those of wealth and influence, loyal to the king; at the expense of the lower classes and those outside the king's favour. Money and power have a disproportionate influence in either system, and the best that can be done is create checks that limit that influence. In an adversarial system, a defendent who does not believe that his court-appointed attorney adequately represented his case can use that as a basis for appeal; or even in extreme cases to have him replaced during the trial (depending on jurisdiction).

The US does not rely exclusively on adversarial systems. In fact, cases involving summary judgement, such as low-level misdemeanor offenses and traffic courts, typically use more of a predominantly inquisitorial format.

The biggest problem with inquisitorial systems is judicial prejudice. This is harder to correct for in a purely inquisitorial systems than it is in an adversarial system. Typically, it's mitigated by having a trial presided over by a panel rather than a single judge, or by an indepenent review by a judge not involved in the trial. However, this is less able to correct for systemic or cultural biases than a juried adversarial system; particularly as the juries are appointed by the court, and not subject to voir dire as they are in an adversarial system.

The inquisitorial system lacks the presumption of innocence inherent to the adversarial sytem; but it also lacks the adversarial system's problem of politically motivated prosecutors.

Both have their inherent flaws; and the strength of any particularly judicial system is how well it uses its strength and compensates for its weaknesses.

[SezMe]

The prosecutors themselves are supposed to seek the truth, which is essentially what a judge would do in an inquisitorial system, the major difference is the former is in the executive branch and the latter in the judicial branch.
I thought the prosecution is supposed to seek convictions. They will not go to trial if they do not think they can prove their case beyond a reasonable doubt. That is not the pursuit of the truth.

[Uncayimmy]

I thought the prosecution is supposed to seek convictions. They will not go to trial if they do not think they can prove their case beyond a reasonable doubt. That is not the pursuit of the truth.

How is that not the pursuit of truth? The investigative arm of the government still did their investigation and typically does not close the case until someone is charged. The reality is that sometimes the truth is unknowable given the restrictions of time, budget and civil rights.

I'm not very familiar with the inquisitorial approach, but from what I can gather (http://law.jrank.org/pages/7663/Inquisitorial-System.html) they operate in a similar manner in that an investigative judge doesn't get involved until they believe there's a case to be made. Furthermore, it appears that the people deciding the case are not questioned for bias and only a 2/3 vote is needed to convict. How is *that* the pursuit of truth?

On the surface I see the two systems as having one huge, fundamental difference. The adversarial system will risk failure to find The Truth at the expense of letting the guilty go free while the inquisitorial system seems to be willing to find The Truth at the expense of locking up the innocent.

[Fiona]

Questioning of juries is not done in the UK and so far as I am aware the English system is wholly adversarial: the Scottish one is a bit of a hybrid but mostly adversarial I think it would be fair to say. So questioning of the jury is not part of the system per se: it is the american answer to potential bias and other places have different ways of dealing with that problem.

In Scotland we also have a majority verdict though it is not 2/3. I am fairly sure that is true in England too: but I could easily be wrong about that

[lector]

Originally Posted by Fiona
In an adversarial system the first thing you have to grasp is that the aim is not to find the truth. At all. The aim is to test the evidence, and to arrive at a verdict through hearing the best argument which can be presented by each side to explain the facts and the evidence which is deemed admissable.

Originally Posted by drkitten
I think that's a misstatement. The adversarial system is supposed to find the truth as well. The assumption is that the truth will out when both sides of a dispute (fairly) present their best case, and any rational person can weigh the two cases and determine which one is true.

Certainly. I was probably less clear than I should have been: it is an assumption that the truth will come out of that process. But it not an avowed aim: it is a premise that the truth will emerge in the course of this. If there is any reason to suppose that the process will not/has not achieved that, the truth loses out in favour of integrity of the procedure. I do not think that is open to doubt and I do not mean to imply there is anything wrong in the assumption. It is one way of approaching the problem and it certainly has its strengths.



I would like to qualify some of these statements, based on my one experience of serving on a criminal trial jury from start to finish. In some instances, the defense's sole argument is that there is insufficient evidence in the prosecution's case to justify a guilty verdict, and that is the sole truth that emerges. In such cases, a "not guilty" verdict establishes only that the prosecution couldn't prove its version of events beyond a reasonable doubt, even though that version might well have been the truth.

I think that Fiona's initial statement comes closest to characterizing the reality of a US criminal trial.

ETA - I guess this is just an expanded version of UncaYimmy's last paragraph above.

[SezMe]

How is that not the pursuit of truth? The investigative arm of the government still did their investigation and typically does not close the case until someone is charged. The reality is that sometimes the truth is unknowable given the restrictions of time, budget and civil rights.
I am not privy to criminal statistics but I do not think it is the case that an investigation is "typically" not closed until someone is charged. What evidence do you have for that statement.

I generally agree with your last statement although I wouldn't use the word "unknowable". Rather the restrictions that you rightly cite make the truth "unproveable", which I would argue is fundamentally different than unknowable.

[Uncayimmy]

I am not privy to criminal statistics but I do not think it is the case that an investigation is "typically" not closed until someone is charged. What evidence do you have for that statement.

I'm actually not sure what you are asking. To the best of my knowledge in the USA, unsolved cases are not closed until:

* Someone is charged and convicted
* Statute of limitations runs out.
* Is closed administratively (see below)

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/09/AR2008010902373.html
"Under General Order 304.1, D.C. police are allowed to close cases administratively under specific circumstances: a suspect is dead or commits suicide; two people kill each other; a dying suspect confesses; a suspect is already in prison or being prosecuted; or a suspect is in a country where extradition is not allowed."

This is why some departments have investigators assigned to cold cases. That is, cases that are still open but not currently active.

I generally agree with your last statement although I wouldn't use the word "unknowable". Rather the restrictions that you rightly cite make the truth "unproveable", which I would argue is fundamentally different than unknowable.

If you can't prove it, how can you know it? It becomes a matter of semantics as to whether you "know" or "can prove" someone violated a particular law. I say that if it's a matter of law, you can't "know" unless you "prove" it according to those laws. If you just wanna have a good idea of what happened, take it to civil court.

[INRM]

I think the adversarial system might be better off toned down a little.

For example the defense attorney's job perhaps should not be to win at any legal cost, but to simply insure the civil rights of the defendant are upheld.

With that in mind the prosecutor's position also should be changed to "win at any cost" to "uphold the law, try those who are likely guilty" and "try and find the truth within the Constitution's bounds" (In other words no unauthorized search and seizures, and such)

[KingMerv00]

For example the defense attorney's job perhaps should not be to win at any legal cost, but to simply insure the civil rights of the defendant are upheld.

That's what the judge is supposed to do.

[imjohn]

That's what the judge is supposed to do.
Usually at the prompting of the defense.

Judges in the US manage the trial, make decisions on legal challenges by the adversarial parties, and instruct juries on the law.

[gumboot]

In an adversarial system the first thing you have to grasp is that the aim is not to find the truth. At all. The aim is to test the evidence, and to arrive at a verdict through hearing the best argument which can be presented by each side to explain the facts and the evidence which is deemed admissable.

In this system it is presumed that one has two equal adversaries and that they will each present the best case they can. There are rules about what counts as evidence and much is excluded. Someone has to decide what is excluded and there are rules about this: for example hearsay is not allowed.


I disagree with this assessment, at least in the context of a criminal court. The adversaries are certainly not equal, and it's certainly not about deciding the best argument. The defense don't have to provide any argument at all - their position is the default accepted account. What the court does is decide whether the prosecution case has sufficient merit to overturn the de facto accepted account.

[drkitten]

If you can't prove it, how can you know it? It becomes a matter of semantics as to whether you "know" or "can prove" someone violated a particular law.

Not really. Or if you want to just call it a matter of semantics, it's a very important matter of semantics.

For example, if I have an inadmissible confession that so-and-so committed a crime, I may know that he did it, but be unable to prove it (because the law won't let me put that confession to evidence). I may have ironclad proof that so-and-so did it, but I can't compel the witness to show up and deliver the proof. (For that matter, I may not be able to compel the defendant to show up.) I may be dealing with a Mafia case where I can't empanel a jury that whose verdict I can rely on in the present of widespread tampering.

Or I may simply believe a particular piece of evidence, but I have no way of reliably conveying my belief and confidence to the jury. ("Yes, my primary witness is a convicted perjurer, but I say to you that this time he's telling the truth.")

[Uncayimmy]

Not really. Or if you want to just call it a matter of semantics, it's a very important matter of semantics.

For example, if I have an inadmissible confession that so-and-so committed a crime, I may know that he did it, but be unable to prove it (because the law won't let me put that confession to evidence). I may have ironclad proof that so-and-so did it, but I can't compel the witness to show up and deliver the proof. (For that matter, I may not be able to compel the defendant to show up.) I may be dealing with a Mafia case where I can't empanel a jury that whose verdict I can rely on in the present of widespread tampering.

Or I may simply believe a particular piece of evidence, but I have no way of reliably conveying my belief and confidence to the jury. ("Yes, my primary witness is a convicted perjurer, but I say to you that this time he's telling the truth.")

False confessions happen all the time, and when they refuse to admit a confession, it's often for a very good reason. How "iron-clad" is your "proof" if conviction relies solely on one person who won't testify? If you can't rely on a jury, then then what's your standard for The Truth? After all, prosecutors don't bring cases they don't believe they can win, but I don't consider them arbiters of truth.

It sounds to me like you're just saying that you know The Truth. Sorry, but I have a higher standard than that when it comes to determining if someone committed a crime. That standard exchanges missing convictions for reduced false convictions.

[D'rok]

The problem with this is that these incentives get very expensive and time-consuming. One aspect of the American adversarial system that I really hate (although it can be quite lucrative) is the duelling-experts, for instance. Even in most adversarial systems (e.g. the UK, Canada, &c.), most "experts" are hired by the court and expected to be impartial (and can be punished for perjury if they're not). So if this particular medical malpractice case hinges on whether unobtainizol is a standard treatment for athlete's foot, rather than getting six shills doctors on each side, you just get the podiatrist from the local hospital to tell you what he uses, cutting your costs tenfold and reducing the likelihood that someone will be able to snow the jury with technobabble.

This is untrue about the Canadian system, or at least exaggerated. Duelling experts paid to give conflicting opinion evidence is quite normal here. Here's a simple example:

http://canlii.org/en/ns/nssc/doc/2008/2008nssc294/2008nssc294.html

Experts are "qualified" as experts by the court before being allowed to give opinion evidence, but it's still up to the trier of fact (judge or jury) to attach weight to the evidence. Juries can easily be snowed under by the "CSI effect" of expert testimony.

This is complicated by the fact that there are quite a few forensic laboratories run by the RCMP or local/provincial police where the experts and tests are primarily or only available to the Crown. (Although cross-examination is always an option). Depending on the issue, there isn't necessarily a similarly well-equipped pool of private experts/labs for defence counsel to turn to. In other words, there can a major power imbalance on top of the CSI effect.

[D'rok]

I think that's a misstatement. The adversarial system is supposed to find the truth as well. The assumption is that the truth will out when both sides of a dispute (fairly) present their best case, and any rational person can weigh the two cases and determine which one is true.

Nope. The goal is correctness, not truth. Although ideally, the two should coincide.

And it isn't a weighing of two cases; it's a question of whether or not the prosecution overcame the presumption of innocence beyond a reasonable doubt and within the rule of law (assuming we're talking criminal law). In a civil case, where the standard is a balance of probabilities, you would be somewhat correct.

[D'rok]

In many jurisdictions prosecutors are forced to turn over exculpatory evidence to the defense. The defense also has certain rights to the evidence the state intends to use. To me that indicates an avowed aim to get at the truth of whether the defendant committed the crime or not.
No. That's procedural fairness.

The prosecutors themselves are supposed to seek the truth, which is essentially what a judge would do in an inquisitorial system, the major difference is the former is in the executive branch and the latter in the judicial branch.

Sorry, this is totally wrong. Prosecutors are supposed to seek conviction to the fullest extent allowed by procedural rules, professional ethics, and the rule of law generally.

[D'rok]

Ah. I see others have already mostly made those points. (Will read whole thread next time).

[drkitten]

False confessions happen all the time, and when they refuse to admit a confession, it's often for a very good reason.

.... such as failure to Mirandize.

How "iron-clad" is your "proof" if conviction relies solely on one person who won't testify?

It can be quite ironclad. A lot of people don't want to testify, and a lot of people can be literally unable to testify (i.e. in a coma after being hit by a bus, or for that matter, dead or senile -- that's a major problem in a lot of cold cases; the witnesses are literally not there any more, so they can't testify.)



If you can't rely on a jury, then then what's your standard for The Truth?

This is nonsense. Laws against jury tampering exist for a reason, precisely because anyone with the common sense of a radish knows the difference between "Truth" and a jury verdict.

[Uncayimmy]

No. That's procedural fairness.

And the goal of "procedural fairness" would be what? To make us feel better about ourselves or arrive at the correct outcome (the truth)?

Sorry, this is totally wrong. Prosecutors are supposed to seek conviction to the fullest extent allowed by procedural rules, professional ethics, and the rule of law generally.
You should be sorry because you are wrong. The things you cite - procedures and ethics - are designed to prevent prosecutors from merely seeking convictions. This is why they have to present exculpatory evidence to the defense.

Take a look here:
http://www.ethicsforprosecutors.com/quotes.html
United States v. Wade, 388 U.S. 218, 256 (1967) (Justice White, concurring and dissenting).

“ Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain and present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that he defend his client whether he is innocent or guilty. The state has the obligation to present the evidence. He need not present any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecutor’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth”.

[Skeptic]

I do not know that either is to be preferred with this major exception: I do not think an adversarial system is able to deal well with offences against the vulnerable

Yes, indeed, but the problem is that the inquisitorial system cannot deal well with offenses by the vulenrable, unpopular, or demanded by the government for some reason. The adverserial system tends to let some of the guilty get off; the inquisitorial one tends to be unfair to those who are prosecuted.

[Uncayimmy]

.... such as failure to Mirandize.

Well, yeh.

It can be quite ironclad. A lot of people don't want to testify, and a lot of people can be literally unable to testify (i.e. in a coma after being hit by a bus, or for that matter, dead or senile -- that's a major problem in a lot of cold cases; the witnesses are literally not there any more, so they can't testify.)
So, basically you're saying you know the truth. It's not ironclad until the defense has a chance to address it. It's also not ironclad until you convince a jury. They are not always going to agree with you.

This is nonsense. Laws against jury tampering exist for a reason, precisely because anyone with the common sense of a radish knows the difference between "Truth" and a jury verdict.
I never said that juries don't get tampered with. I have explicitly stated that the American system allows the "guilty" to occasionally walk so we can avoid locking up the "innocent."

You didn't answer my question. If you can't rely on the jury, what do you rely upon? So far it seems to be your personal judgment.

I still stand by my comment that set you off:
"If you can't prove it, how can you know it? It becomes a matter of semantics as to whether you "know" or "can prove" someone violated a particular law. I say that if it's a matter of law, you can't "know" unless you "prove" it according to those laws. If you just wanna have a good idea of what happened, take it to civil court."

We're talking about crime here, which means a crucible with heat from specific definitions about the law that was violated, strict procedures for presenting and evaluating evidence, and a high degree of unanimous certainty from a group of people with no personal stake in the issue. If you don't put it in that crucible, you'll never know. Well, you might. If that makes you sleep better at night, that's fine by me so long as they don't start sentencing people based on your personal belief.

[D'rok]

And the goal of "procedural fairness" would be what? To make us feel better about ourselves or arrive at the correct outcome (the truth)?

The correct outcome is not synonymous with the truth. It would be an incorrect outcome if a person who really did commit a crime was convicted of that crime based on prosecutorial misconduct. The goal of procedural fairness is not truth. The goal is fairness.


You should be sorry because you are wrong. The things you cite - procedures and ethics - are designed to prevent prosecutors from merely seeking convictions. This is why they have to present exculpatory evidence to the defense.

Take a look here:
http://www.ethicsforprosecutors.com/quotes.htmlDid I say "merely"? Obviously not, because I enumerated several clear limits and overarching concerns. To the extent that truth emerges, it emerges as a result of a tripartite system in which each actor has a clearly defined role. The role of the prosecution is to prosecute as an advocate for the Crown (or equivalent); the role of the defence is to defend as an advocate for the accused; the role of the judge/jury is to impartially decide.

[Darat]

In the UK jury trails are I believe the exception for most criminal trials, most are held in a court that will either have a single judge or a few magistrates who will determine whether someone is guilty. I also thought in English common law courts the judge can interrogate a witness?

[INRM]

I'm John,

Usually at the prompting of the defense.

Exactly

[drkitten]

So, basically you're saying you know the truth. It's not ironclad until the defense has a chance to address it. It's also not ironclad until you convince a jury. They are not always going to agree with you.

That's, not to put too fine a point on it, ridiculous.

The same information that constitutes "ironclad proof" does not become more convincing by being presented to a jury, nor does it become more convincing by the fact that a jury has been convinced by it.

I can have information that would convince any reasonable person that the defendant is guilty beyond doubt. (That I might or might not be able to correctly identify that, or that I might not be competent to present that evidence properly, is not relevant to the quality of the evidence itself; if I mismeasure a rope, that doesn't make the rope any shorter.)

I can also either be prevented from presenting that evidence, or I can fail to get "reasonable people" on a jury. That doesn't weaken the evidence.


You didn't answer my question. If you can't rely on the jury, what do you rely upon?

Upon reality itself.


I still stand by my comment that set you off:
"If you can't prove it, how can you know it?

And I've already answered it. I can know it but be unable to prove it because of local rules, an unreasonable jury, or my own incompetence as an attorney.


We're talking about crime here, which means a crucible with heat from specific definitions about the law that was violated, strict procedures for presenting and evaluating evidence, and a high degree of unanimous certainty from a group of people with no personal stake in the issue. If you don't put it in that crucible, you'll never know.

Wrong. Indeed, that's one of the key aspects that you're overlooking in the adversarial system. Prosecutorial ethics dictate that you do not bring or prosecute a case that you do not already feel you have evidence sufficient to prove to the necessary standard. If you yourself are not convinced of the defendant's guilt, you are being unethical in bringing the case.

The question then becomes whether or not the jury agrees with your prior assessment that you have evidence sufficient to prove the defendant guilty.

[drkitten]

The role of the prosecution is to prosecute as an advocate for the Crown (or equivalent);

Er, no.

The role of the prosecution is to act as an advocate for The Truth and for Justice, not for the Crown.

As a simple reductio ad absurdum, the Crown would much prefer to collect the fines from everyone accused of a traffic offense, regardless of whether or not they're guilty. (Traffic fines are the financial mainstay of many small towns on major roads -- this has even been written into law/policy in some communities, although superior courts tend to object to such formalities such as ticket quotas and strike them down when they find it.)

That's exactly what US v. Wade says. The defense is acting as advocate for the defendant and is seeking the defendant's best interest (which is another way of saying the same thing). The prosecutor, in the case of "City of Smallville vs. Doe," is not seeking the city's best interest, but the interests of truth, justice, and fairness, which includes the ethical obligation not to prosecute even a winnable case if that would not be just.

[Uncayimmy]

The correct outcome is not synonymous with the truth. It would be an incorrect outcome if a person who really did commit a crime was convicted of that crime based on prosecutorial misconduct. The goal of procedural fairness is not truth. The goal is fairness.
What's fair about the prosecution being forced to turn over exculpatory evidence but the defense not being required to show evidence of guilt?


Did I say "merely"? Obviously not, because I enumerated several clear limits and overarching concerns. To the extent that truth emerges, it emerges as a result of a tripartite system in which each actor has a clearly defined role. The role of the prosecution is to prosecute as an advocate for the Crown (or equivalent); the role of the defence is to defend as an advocate for the accused; the role of the judge/jury is to impartially decide.
You said, "Prosecutors are supposed to seek conviction..." (your emphasis), which is simply wrong in the USA. Read those court rulings again. They very clearly spell out my position, and thus establish that my position is not a matter of opinion - it's the law in the USA that the "prosecutor’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done."

[D'rok]

Er, no.

The role of the prosecution is to act as an advocate for The Truth and for Justice, not for the Crown.

As a simple reductio ad absurdum, the Crown would much prefer to collect the fines from everyone accused of a traffic offense, regardless of whether or not they're guilty. (Traffic fines are the financial mainstay of many small towns on major roads -- this has even been written into law/policy in some communities, although superior courts tend to object to such formalities such as ticket quotas and strike them down when they find it.)

That's exactly what US v. Wade says. The defense is acting as advocate for the defendant and is seeking the defendant's best interest (which is another way of saying the same thing). The prosecutor, in the case of "City of Smallville vs. Doe," is not seeking the city's best interest, but the interests of truth, justice, and fairness, which includes the ethical obligation not to prosecute even a winnable case if that would not be just.

All of which is captured by the enumerated list of limits and overarching concerns in my previous post. Within that framework, yes, the goal of the prosecution is to secure a conviction on behalf of the Crown,

[D'rok]

What's fair about the prosecution being forced to turn over exculpatory evidence but the defense not being required to show evidence of guilt?

Re-balancing the power imbalance. The machinery of the justice system - i.e. the state - is a weighty thing when wielded against a lonely individual. Fairness doesn't mean prosecution and defence are treated precisely equally.



You said, "Prosecutors are supposed to seek conviction..." (your emphasis), which is simply wrong in the USA. Read those court rulings again. They very clearly spell out my position, and thus establish that my position is not a matter of opinion - it's the law in the USA that the "prosecutor’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done."Dishonest. Poor form. Shall we quote the entire sentence?

Prosecutors are supposed to seek conviction to the fullest extent allowed by procedural rules, professional ethics, and the rule of law generally.

[drkitten]

All of which is captured by the enumerated list of limits and overarching concerns in my previous post. Within that framework, yes, the goal of the prosecution is to secure a conviction on behalf of the Crown,

Except that it's not, and the various ethical statements directly contradict you.

Did you actually look at UY's quotations?

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.

The duty of the prosecutor is to seek justice, not merely to convict.

The primary responsibility of prosecution is to see that justice is accomplished.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty [...]whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

The District Attorney is a quasi-judicial officer. He represents the commonwealth and the commonwealth demands no victims. It seeks justice only--equal and impartial justice



Et cetera. You can quote-mine for yourself. These quotes and others like them are pretty firm that the primary goal of the prosecutor is not a conviction, but justice.

[D'rok]

Except that it's not, and the various ethical statements directly contradict you.

Did you actually look at UY's quotations?



Et cetera. You can quote-mine for yourself. These quotes and others like them are pretty firm that the primary goal of the prosecutor is not a conviction, but justice.

We seem to be saying the same thing in apparently contradictory ways. I am saying that within the framework of fairness and natural justice the goal of the prosecutor is to convict. Nowhere have I suggested that conviction at all costs or mere conviction is the goal.

[Uncayimmy]

That's, not to put too fine a point on it, ridiculous.

The same information that constitutes "ironclad proof" does not become more convincing by being presented to a jury, nor does it become more convincing by the fact that a jury has been convinced by it.
It doesn't become "convincing" until it is contested under proper conditions and judged to be convincing. Not to put too fine a point on it, but you seem to be defining a "ironclad" as something that you know with certainty will be admitted as evidence, stand up under cross, and be totally convincing, and that's rather silly.

I can also either be prevented from presenting that evidence, or I can fail to get "reasonable people" on a jury. That doesn't weaken the evidence.
LOL. Okay, so long as Dr. Kitten knows it's ironclad, we're good to go.


And I've already answered it. I can know it but be unable to prove it because of local rules, an unreasonable jury, or my own incompetence as an attorney.
Yep, Dr. Kitten can know. Might I suggest you look into acquiring a village in Ethiopia so that you can administer your form of justice.


Wrong. Indeed, that's one of the key aspects that you're overlooking in the adversarial system. Prosecutorial ethics dictate that you do not bring or prosecute a case that you do not already feel you have evidence sufficient to prove to the necessary standard. If you yourself are not convinced of the defendant's guilt, you are being unethical in bringing the case.
I'm "wrong" for stating that you cannot "know" the effect of your evidence until you actually put it through the process of knowing? Okay.

The question then becomes whether or not the jury agrees with your prior assessment that you have evidence sufficient to prove the defendant guilty.
To be clear, it's not just a matter of providing sufficient evidence. In the USA the witness oath requires presenting the truth, the whole truth, and nothing but the truth. There's a reason for that. You can have "sufficient evidence" to convict, but if the defense presents other evidence, it could blow your case out of the water - your case may not be the "whole" truth. In other words your case with "sufficient evidence" may turn on the presence or absence of one piece of information the defense might offer.

You might say, "I have ironclad proof the defendant raped the victim. Here's the DNA evidence." You know you could have a conviction if you could only present it.

When submitted to the crucible, the defense says, "There was an anomaly in the chain of evidence. One handler was the defendant's ex-girlfriend, and they had a nasty breakup. Turns out that on the day in question she contacted the defendant for the first time in six months and they had sex. He left the used condom in her apartment. We also have incriminating e-mails from the ex implying that she is going to see that he gets convicted no matter what."

The only way you can "know" is if your are omniscient.

[Uncayimmy]

Et cetera. You can quote-mine for yourself. These quotes and others like them are pretty firm that the primary goal of the prosecutor is not a conviction, but justice.
Which ties into the point I made earlier that it seems, based on my limited experience with inquisitorial systems, that the so-called adversarial system is in many ways inquisitorial on the side of the prosecution and adversarial from the perspective of the defense.

[drkitten]

It doesn't become "convincing" until it is contested under proper conditions and judged to be convincing. Not to put too fine a point on it, but you seem to be defining a "ironclad" as something that you know with certainty will be admitted as evidence, stand up under cross, and be totally convincing, and that's rather silly.


LOL. Okay, so long as Dr. Kitten knows it's ironclad, we're good to go.

No, we're not. You seem to be under the mistaken impression that I'm proposing that someone be punished based on my (or the prosecutor's) belief in the defendant's guilt.

Obviously, there are some substantive procedural steps that need to be followed, including giving the defense a chance to challenge the evidence.

But the first and most important procedural step that needs to be followed is that the prosecution needs to believe both that it has a case and that the case represents the truth.

If the prosecutor is not himself already convinced beyond a reasonable doubt by the case he intends to present, then he should not even be charging the defendant.



I'm "wrong" for stating that you cannot "know" the effect of your evidence until you actually put it through the process of knowing?

No, you're wrong for stating that the process of convincing a jury is the process of "knowing."


You might say, "I have ironclad proof the defendant raped the victim. Here's the DNA evidence." You know you could have a conviction if you could only present it.

Absolutely. Because if I don't know (in the sense you are using above) that I could have a conviction, I shouldn't even be trying.

Turn it around. Why is it an ethical (and legal) violation if I am aware that the DNA was mishandled at the lab, and I don't mention it to the defense? Precisely because in light of that finding, I myself have -- or should have -- reasonable doubt about the legitimacy of the conviction that I could obtain. Even without being omniscient, I should "know" in this circumstance that an attempt to convict is neither fair, just, appropriate, nor ethical.

[drkitten]

We seem to be saying the same thing in apparently contradictory ways. I am saying that within the framework of fairness and natural justice the goal of the prosecutor is to convict.

Yes. And what you're saying is wrong.

Let me put it to you in very simple terms.

The goal of the prosecutor is not to convict.

[D'rok]

Yes. And what you're saying is wrong.

Let me put it to you in very simple terms.

The goal of the prosecutor is not to convict.

You must not know any prosecutors.

[drkitten]

You must not know any prosecutors.

Maybe I can put it to you in these terms.

Is it the goal of a teacher to fail students?

[D'rok]

Maybe I can put it to you in these terms.

Is it the goal of a teacher to fail students?

Yeah, I'm afraid the condescension level just exceeded my tolerance. Le sigh.

[drkitten]

Yeah, I'm afraid the condescension level just exceeded my tolerance. Le sigh.

Well, it would really help if you weren't arguing in the teeth of official prosecutorial ethics statements....

When case law and official codes of ethics say "black is not white," and you're saying "under the proper conditions, black is white," you've set yourself a difficult task.

[Uncayimmy]

No, you're wrong for stating that the process of convincing a jury is the process of "knowing."
I thought I had clarified that position. We're talking about "knowing" that a crime has been committed and the person(s) who committed that crime. Those are all matters of law, and without going through the process of law, you cannot "know" anything. As I said, if you just want a pretty good idea, go to civil court or write an article in Slate.

Turn it around. Why is it an ethical (and legal) violation if I am aware that the DNA was mishandled at the lab, and I don't mention it to the defense? Precisely because in light of that finding, I myself have -- or should have -- reasonable doubt about the legitimacy of the conviction that I could obtain. Even without being omniscient, I should "know" in this circumstance that an attempt to convict is neither fair, just, appropriate, nor ethical.
It's not a matter of ethics for you not to make connections that the defense might make. After all, the defense is probably going to tell the defendant to keep quiet very early on in the investigation. I think we can agree that I can construct any number of hypothetical situations where a diligent prosecutor may not be aware of exculpatory evidence.

This is why I am saying that the idea of "knowing" what will happen in a court of law is unknowable until you actually go through the process. You have noted several potential issues. In addition I have pointed out that your "ironclad" evidence may not be so simply because you may not be aware of all the facts. At the same time I am saying that you cannot "know" if somebody committed a crime without actually going through the court.

The idea of it simply being knowable but "unprovable" is built upon a number of assumptions such as the "reasonableness" (ha!) of the jury, effectiveness of presentation, rules of evidence, definition of the law, jury instructions, and most importantly, other evidence that the defense may offer.

I consider this avenue beat to death. The last word is yours.

[rjh01]

<snip> - it's the law in the USA that the "prosecutor’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done."

If the prosecutor's job was to seek justice (and they actually did it) then there would be no role left for the defence. That is except perverting the course of justice by attempting to get people who are guilty released by such methods as confusing honest witness or at least make them LOOK bad (when they are not bad).

[Uncayimmy]

If the prosecutor's job was to seek justice (and they actually did it) then there would be no role left for the defence. That is except perverting the course of justice by attempting to get people who are guilty released by such methods as confusing honest witness or at least make them LOOK bad (when they are not bad).

First, there's no "if" about this. As I said, these are not editorial opinions. They are binding court decisions. That said...

I completely disagree. People make mistakes, including prosecutors. We all know how hard it is to find our own mistakes, and we all know that nobody will scrutinize something as diligently as somebody whose finances, freedom and even life are on the line. You can think of the defense as a second set of eyes reviewing the case.

There are also countless matters of legal opinion about which even the most educated and experienced judges will strongly disagree. There needs to be an advocate for the defendant who will raise those issues and fight for the other position if necessary.

Then, of course, we have the issue of corruption or at least malfeasance. Without the watchful eye of the defense, how can we be confident that they are, in fact, seeking justice? It's an integral part of the system of checks and balances. It's not just the prosecutor who could be out of line - anybody in the executive *and* judicial branch could be conducting themselves improperly.

These court rulings about what the prosecution is supposed to do allow for remedies such as throwing the case out of court and not allowing charges to be brought again.

[Skeptic]

The main point of the adversarial system is that as good as a "let's just look for the truth" system sounds in theory, in practice it is gives an enormous benefit to the prosecution. Most of the adversarial system's "forget the truth, let's have a contest!"-seeming rules are really an attempt to address this inherent unfairness between the power of the state and that of the defendant.

Take "guilty beyond a reasonable doubt" (I know this applies to the inquisitional system too, but bear with me). By definition this means that the truth -- or the probable truth -- must often be ignored by the jury! If someone is with a probability of 80% guilty, or even with a 95% probability guilty, he must be set free. Why? Because it is a way to limit the inherent superior ability of the state to bring evidence over that of the defendant, and to avoid as much as possible innocents being punished.

The "contest" - seeming issues of the adversarial system, with a neutral judge, attempts to put defense and prosecution more or less on par. The "inquisitional system", with the judge -- the representative of the state -- having the power to question the defendant, for example, and decide the verdict (as opposed to the jury), was often abused.

I am not saying the inquisitional system is necessarily oppressive. If I were accused of murder and knew myself to be innocent, I would with all probability prefer to be tried by a judge -- at least in a free country.

But what if I were from a minority group the government dislikes?

[drkitten]

If the prosecutor's job was to seek justice (and they actually did it) then there would be no role left for the defence.

Only if the prosecutor could be relied upon always to fulfill his job.

Common law systems (and the US Constitution, which took a lot of inspiration from them) were designed on a belt-and-braces system so that a single person would not have enough power to create a dictatorship.

There are basically three people involved in a court case -- four if you treat "the jury" as a person -- any of whom have the power to clear the defendant, and NONE of whom have the unilateral power to convict him.

The prosecutor can simply withdraw the charge. The judge can order the case dismissed. The jury can acquit. And of course, the defense is charged with persuading any one of them to do just that.

Only if the first three agree can the defendant be convicted. By design.

[Fiona]

So do adversarial systems produce fewer convictions? What are the comparative rates? Does anyone here know?

[quadraginta]

So do adversarial systems produce fewer convictions? What are the comparative rates? Does anyone here know?


Maybe not the best question to ask. The process by which a trial is approached has to be taken into account as well. In other words, do an equal number of like cases actually culminate in a trial of the merits of evidence?

I'm still struggling with the comparative definitions of the two systems. Apologies for my intransigence and comprehension deficit. Anyone willing to tackle a recap which meets with general acceptance?

[Fiona]

I understand that there are differences in a lot of areas which would lead to a differential outcome, quadraginta. But I am interested in the assertion that there are fewer safeguards for the accused in an inquisitorial system because I just don't see how that is so. It seems reasonable to me to expect that there would be more convictions, in general, if it were true: and that it would be possible to show that by comparing very broad indices such as attrition rates; conviction rates etc.

It would be open to a lot of error certainly: but if it cannot be done then how can it be asserted that the adversarial system actually results in more protections?

[quadraginta]

I understand that there are differences in a lot of areas which would lead to a differential outcome, quadraginta. But I am interested in the assertion that there are fewer safeguards for the accused in an inquisitorial system because I just don't see how that is so. It seems reasonable to me to expect that there would be more convictions, in general, if it were true: and that it would be possible to show that by comparing very broad indices such as attrition rates; conviction rates etc.

It would be open to a lot of error certainly: but if it cannot be done then how can it be asserted that the adversarial system actually results in more protections?


I think (?, i.e. fairly certain) that I agree with you. I'm having difficulty establishing metrics by which to make a comparison. If instances of prosecutorial exuberance (for whatever reason) are diminished by, for example, the investigative perogatives of a judge in the inquisitorial model then there might be an accordingly higher proportion of actual trials which lead to conviction, simply because the more frivolous or opportunistic ones do not reach that point.

I might not be expressing myself well.

[drkitten]

I understand that there are differences in a lot of areas which would lead to a differential outcome, quadraginta. But I am interested in the assertion that there are fewer safeguards for the accused in an inquisitorial system because I just don't see how that is so.

Don't confuse "fewer" safeguards with "less effective" safeguards.

If you've got Lensmen acting as judge, jury, and executioner, you wouldn't need any safeguards, and you'd have a 100% conviction rate because the Lensmen would in fact never accuse an innocent person. Doc Smith was very careful to write them up that way.

[drkitten]

I think (?, i.e. fairly certain) that I agree with you. I'm having difficulty establishing metrics by which to make a comparison. If instances of prosecutorial exuberance (for whatever reason) are diminished by, for example, the investigative perogatives of a judge in the inquisitorial model then there might be an accordingly higher proportion of actual trials which lead to conviction, simply because the more frivolous or opportunistic ones do not reach that point.

I might not be expressing myself well.

I think you're expressing yourself beautifully. There are at least two explanations that could be offered for a system with a near-100% conviction rate. The first is that the investigation and pre-screening is so tight and so well-done that very few innocents are ever brought into the courtroom at all. The other is that the trial system itself is so corrupt that no one brought into the courtroom is acquitted, regardless of the actual facts of the case.

I'd consider one of those two situations to be a good thing, the other a bad thing. But simply telling me that 78% of trials end in a conviction doesn't tell me which it is.

[Fiona]

I have no idea what you are talking about drkitten. I did not read the lensman series because the first book I attempted was unmitigated rubbish. IMO. But if you and others are not arguing that the safeguards for the accused are less effective/important in inquisitorial systems then I am afraid I have completely misunderstood this part of the discussion

[Fiona]

I think (?, i.e. fairly certain) that I agree with you. I'm having difficulty establishing metrics by which to make a comparison. If instances of prosecutorial exuberance (for whatever reason) are diminished by, for example, the investigative perogatives of a judge in the inquisitorial model then there might be an accordingly higher proportion of actual trials which lead to conviction, simply because the more frivolous or opportunistic ones do not reach that point.

I might not be expressing myself well.


That is why you would have to include attrition rates at the very least: but if it cannot be done then to say this is a difference between the two systems is just an assertion is it not?

[quadraginta]

That is why you would have to include attrition rates at the very least: but if it cannot be done then to say this is a difference between the two systems is just an assertion is it not?


Yes, it is. On that aspect we are in full agreement.

[Uncayimmy]

It would be open to a lot of error certainly: but if it cannot be done then how can it be asserted that the adversarial system actually results in more protections?

We'll never be able to demonstrate it in a statistically reliable manner. There are far too many variables. It's generally accepted that the adversarial system is slanted towards protecting the individual while the inquisitorial is slanted towards protecting the public. Maybe the experts are wrong and all the differences in procedures cancel each other out such that the false-positive and false-negative errors are the same in each system.

[drkitten]

I have no idea what you are talking about drkitten. I did not read the lensman series because the first book I attempted was unmitigated rubbish. IMO. But if you and others are not arguing that the safeguards for the accused are less effective/important in inquisitorial systems then I am afraid I have completely misunderstood this part of the discussion

I'm arguing that the inquisitorial system provides fewer safeguards for the accused (which should be fairly obvious). For example, there is no such thing as an "exclusionary rule" because the rules of evidence in inquisitorial systems don't usually allow you to let the judge look at a proposed piece of evidence in order to determine whether or not that piece of evidence can be shown to the judge. Such an idea would be patent nonsense.

The question is whether an exclusionary rule is needed or useful. Doc Smith's lensmen were, by design and authorial omnipotence, both telepathic and sea-green incorruptible; they could literally look in your own mind to discern The Truth and would never rule inappropriately. In such a system, you don't need to exclude any sort of "evidence," because the lensman will automatically ignore everything that doesn't lead him straight to The Truth.

[Fiona]

Ok drkitten: I have tried to see some relevance but I just don't. Perhaps someone else can pick up this part of the conversation though :)

[quadraginta]

We'll never be able to demonstrate it in a statistically reliable manner. There are far too many variables. It's generally accepted that the adversarial system is slanted towards protecting the individual while the inquisitorial is slanted towards protecting the public. Maybe the experts are wrong and all the differences in procedures cancel each other out such that the false-positive and false-negative errors are the same in each system.


Whom are these "experts" of which you speak?

I'm still trying to wrap my mind around a good working definition of the differences between the two. Until I've managed that I cannot be certain that "experts" are even addressing the right questions, much less whether they are addressing them cogently.

To offer what I'm sure is not the best analogy, it's like seeking out "experts" to judge the relative merits of conservatism vs. liberalism. Most of the time I'm reasonably confident that regardless of their perspective or the wisdom of their discourse there is not a shared definition of the terms to begin with.

[quadraginta]

I'm arguing that the inquisitorial system provides fewer safeguards for the accused (which should be fairly obvious). For example, there is no such thing as an "exclusionary rule" because the rules of evidence in inquisitorial systems don't usually allow you to let the judge look at a proposed piece of evidence in order to determine whether or not that piece of evidence can be shown to the judge. Such an idea would be patent nonsense.

The question is whether an exclusionary rule is needed or useful. Doc Smith's lensmen were, by design and authorial omnipotence, both telepathic and sea-green incorruptible; they could literally look in your own mind to discern The Truth and would never rule inappropriately. In such a system, you don't need to exclude any sort of "evidence," because the lensman will automatically ignore everything that doesn't lead him straight to The Truth.


Using the Amanda Knox case as an example (since it inspired this thread), the two statements which Knox made while she was being interviewed as a "witness" during the infamous interrogation were excluded from the trial because she was not at the time being treated as a "suspect", and thus the testimony was declared inadmissible. Only her final statement subsequent to that change of status was.

Was this not "exclusionary", or am I misunderstanding your use of the term? Would this not be considered a "safeguard for the accused"? Or are you suggesting that the Italian system is not an accurate presentation of the "inquisitorial" model?

[Fiona]

http://en.allexperts.com/e/a/ad/adversarial_system.htm

Don't know if that helps, quadraginta

[quadraginta]

http://en.allexperts.com/e/a/ad/adversarial_system.htm

Don't know if that helps, quadraginta


Your efforts are appreciated, Fiona, but I have troubled myself to investigate the most basic definitions :). It is a commonality of definition that I am seeking.

The impetus for this thread was the Amanda Knox thread, along with the underlying concurrent suggestions that the "inquisitorial" Italian system somehow did not afford the same degree of protections to the accused that our "adversarial" system does.

Upthread UncaYimmy commented that ...

It's generally accepted that the adversarial system is slanted towards protecting the individual while the inquisitorial is slanted towards protecting the public....and mentioned experts, which I questioned. In the document you just cited it says,

Basic features of the adversarial system

As an accused is not compelled to give evidence in a criminal (http://en.allexperts.com/e/c/cr/crime.htm) adversarial proceeding, he may not be questioned by prosecutor or judge unless he chooses to do so. However, should he decide to testify, he is subject to cross-examination (http://en.allexperts.com/e/c/cr/cross-examination.htm) and can be found guilty of perjury (http://en.allexperts.com/e/p/pe/perjury.htm).Now, in the Knox trial we know that the accused were not only not compelled to testify, but the testimony that they did provide was not even required to be under oath, which means that even perjury was not a potential threat.

So is it the case that the Italian system is not, after all, an "inquisitorial" one, with all the thinly veiled suggestions of mistreatment of the accused that are alleged to be bag and baggage of such a system, or is there perhaps some degree of hybridization, which might suggest that the general pronouncements of "experts" are less useful to this discussion?

Also from your cite is this,

One of the most significant differences between the adversary system and the inquisitional system occurs when a criminal defendant admits to the crime. In an adversary system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution (http://en.allexperts.com/e/a/al/allocute.htm) of her or his crime, a false confession will not be accepted even in common law courts. By contrast, in an inquisitional system, the fact that the defendant has confessed is merely one more fact that is entered into evidence, and a confession by the defendant does not remove the requirement that the prosecution present a full case.I don't necessarily see this as a detriment to the accused. Again, in the Knox case, this approach would seem to have weighed more to her advantage than otherwise, considering the allegations made by her defenders.

These are only a couple of examples.

This is why I'm unsure that I'm phrasing my points well. To some extent I am thinking out loud, but I have the sense that we haven't arrived at the point where we are comparing apples to apples yet.

[Fiona]

Sorry quadraginta: I did not mean to insult you in any way. Sometimes I do not do research on a definition question: I just ask. Clearly you are more conscientious than I :)

The problem here, I think, is that we moved from description/definition to an argument about merits far too quickly. And, as it says in that same article, there is no evidence for the superiority of one system over the other, and none which demonstrates the benefits claimed here. That is what I was trying to address latterly but I accept it was premature.

I do not think either system exists in pure form anywhere, but I am very willing to be told of examples.

[quadraginta]

Sorry quadraginta: I did not mean to insult you in any way. Sometimes I do not do research on a definition question: I just ask. Clearly you are more conscientious than I :)

The problem here, I think, is that we moved from description/definition to an argument about merits far too quickly. And, as it says in that same article, there is no evidence for the superiority of one system over the other, and none which demonstrates the benefits claimed here. That is what I was trying to address latterly but I accept it was premature.

I do not think either system exists in pure form anywhere, but I am very willing to be told of examples.

No insult perceived. I appreciated the help in the spirit it was offered.

I believe our thinking here is along similar lines.

[quadraginta]

@ Fiona, et. al.

One more quote from the source you cited. (There is some interesting commentary there. Thanks again. :))

Comparisons with the inquisitorial approach

In many jurisdictions the approaches of each system are often formal differences in the way cases are reviewed. It is questionable that the results would be different if cases were conducted under the differing approaches; in fact no statistics exist that can show that these systems do not come to the same result. However, these approaches are often a matter of national pride and there are opinions amongst jurists about the merits of the differing approaches and their drawbacks as well.Highlighting is mine, of course. I think that this and the following sentence may well compare with some of the issues we are encountering in this thread.

[Fiona]

Yes :)

[ZirconBlue]

Does Spain use an Inquisitorial system? That would be . . . unexpected.

[quadraginta]

Does Spain use an Inquisitorial system? That would be . . . unexpected.


Well done.

Now we need the appropriate Tom Lehrer tune.

I'm torn between "Lobachevsky" and "The Hunting Song".

[Fiona]

I think the Irish folk song? Or perhaps that is for another thread...

[quadraginta]

I think the Irish folk song? Or perhaps that is for another thread...


I was looking for ridicule of legal niceties, but on reflection I like yours better. :D

Not only is there nothing a Tom Lehrer song can't be found for, he even gave us choices!

[rjh01]

Thanks for the two responses to my post.
UncaYimmy - That is not how I read the attachment you gave.
drkitten - It would be great if as you say the role of the defence was to review the evidence and ensure that the prosecutor was doing their job properly. But the attachment says it is to get a not guilty verdict by almost any means.