Advantages and disadvantages of the adversarial system in criminal proceedings, William van Caenegem [read novel full .txt] 📗

which in I988, substituted an adversarial system of criminal proceedings for its old inquisitorial model. However, after a short delay, with realisation dawning about the costs of an adversarial system, because of inherent legal- cultural attitudes, and partly out of a desire to deal with matters in more consensual ways by way of diversion or alternative judicial processes, Italy has

 

 

 

substantially (at least in terms of practice) reverted to its old inquisitorial ways due to recent amendments, as pointed out above. This reversionary trend lends some support to the thesis that there are limitations on the amount of borrowing from an inquisitorial jurisdiction that is possible in Western Australia.

 

Hybrid models

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion

Of interest is also the development of hybrid models with multinational scope. Presumably such a hybrid model will result from the work undertaken under article I5 of the Rome treaty establishing a permanent international criminal court.5I A Committee is developing rules of criminal procedure that will apply in the court, and that will presumably borrow from both types of jurisdictions.

 

In the European Union, uniform provisions of criminal law and criminal procedure are being developed for the purpose of the protection of the financial interests of the European Union (ie, a unified European Union criminal law dealing with fraud).52 Again the procedures developed borrow from both adversarial and inquisitorial systems. Reference should also be made here to the procedure that applies before the war crimes tribunal concerning the former Yugoslavia, and the Rwanda war crimes tribunal. All these developments are giving rise to the emergence of a body of law with common and hybrid characteristics in criminal procedure that is relevant to the law reform process in any national or sub-national jurisdiction.

 

The inevitable conclusion flowing from the striking parallels in problems and solutions is that, on the one hand, many of the difficulties that seem restricted to our jurisdiction are in fact generic; and maybe more relevantly in the context of this inquiry, that the adoption of a civil law system, or some elements of a civil law system, may resolve some of our current concerns, but would most likely import a whole new set of different problems, equally pressing. In any case, it should not be forgotten that both jurisdictions are marked by the same history of, and trends towards, the rule of law, respect for human rights and effective administration of justice. In that light, it appears unlikely that either would show fundamental failures that are not replicated in the other system. In the meantime, there is a risk that with the bath water (the adversarial system), some important babies (certain basic rights that the common law has jealously guarded) may be thrown out. That leaves the question open of what advantage could be derived from borrowing some elements from the inquisitorial system. The unanswered question, and one that is inherently difficult to answer, remains as to the differential cost-structure of both systems. It may be that so many factors come into play in making such a comparative calculation anyway, that it will never be very useful to undertake it. Ultimately the matter of cost is one that is closely connected to values, democracy, and political choice, rather than only to efficiency, when one considers criminal

 

 

 

justice, which is so intimately concerned with people's most basic rights and freedoms.

 

DISADVANTAGES OF THE ADVERSARIAL SYSTEM, WITH REFERENCE TO THE INQUISITORIAL MODEL

 

Results of the congruence of party prosecution and the rules of evidence

Some disadvantages of an adversarial system can be identified. The main themes are as follows:

I. the congruence of party prosecution and the rules of evidence;

'equality of arms' in the adversarial system; and

judicial management and supervision of the pre-trial stage.

 

It is arguable that the congruence in an adversarial system of, on the one hand, the rules of evidence that require testimonial proof at the trial, and, on the other hand, party prosecution, with its attendant potential for stratagems and delay, have a detrimental effect on the capacity of the system to identify the truth. The fact that both sides are subject to the same handicaps gives scant comfort. The equality of handicaps, if it exists, will not guarantee a fair outcome. It is unsatisfactory at the conceptual level. Furthermore, the actual inequality of means between the parties arguably results in an unfair advantage for the prosecution. On the other hand, concerns are often expressed that the whole trial process, and rules of procedure and of evidence, are in fact heavily weighted in favour of the accused.

 

The obvious solution, which would in effect result in an approximation of the inquisitorial system, might then to be to abolish party prosecution and oral and continuous trials. Exclusionary rules of evidence would lose their significance as well. A necessary consequence would be the abolition of jury trials. However, it is undeniable that the rules of evidence, although they are to a large extent inspired by the risks inherent in jury systems, also embody important guarantees for an accused. Thus wholesale abolition may have detrimental effects on the rights of the accused; it would also affect the advantages derived from immediacy and reliability-testing.

 

A more acceptable solution would be one that focuses primarily on accelerating the trial process. The oral presentation of evidence, with its advantages of directness and testability through cross-examination, is less subject to the vagaries of memory and external influences on witnesses, the c/oser to the actua/ events it takes p/ace. Speedy trials, of course, have important benefits in terms of the accused, certainly where he is on remand, and in terms of the victim and society as a whole. In more ways than one, justice delayed is justice denied.

 

The point of focus of reform should thus be party prosecution, rather than party presentation and orality. Greater judicial intervention at the early pre- trial stage should prevent delaying tactics, clarify issues, allow the identification early on of the most appropriate way to proceed, and speed up trials.

 

 

 

Lack of equality of arms

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ineffective supervision at the pre-trial stage

Maybe the most fundamental reason for the lack of equality of arms in the common law system of criminal procedure, is the major role ascribed to the accused's legal representative. A considerable forensic responsibility rests on the shoulders of lawyers for the accused, unlike in inquisitorial systems, where officialdom takes all such responsibility. The barrister or solicitor is the key to the effective and fair operation of the system, with an obligation both to the client and to the court. Nonetheless this is a potential weakness of the system as well, evidently where the accused is not represented, but also in cases where the accused is under-represented. In such circumstances the accused may be encouraged not to pursue a potential chance of acquittal because this route in some way (eg because of lack of resources, time or other factors) is not in the interest of the legal representative. To simply impose a greater moral obligation on lawyers is not the solution, since the under-funding of a system, be it systemic or fiscal, cannot be solved by exhortations that in truth amount to an obligation to work without adequate reward: the system should not be systematically dependent on professional altruism, even if it may depend substantially on professional ethics.

 

A further major difficulty that enhances the potential for grave imbalance is that more often than not, for various reasons both social and systemic, the clientele of the criminal justice system, is on average less well resourced and less educated than the population in general. In a period of hardening of attitudes towards law and order, this unfortunate effect is further enhanced, because increased criminalisation, the imposition of more frequent and harsher penalties, and less emphasis on rehabilitation, will have the effect of rendering those likely to come into contact with the criminal justice system even less able to ensure their own fair and just treatment within that system.

 

It is worthy of note that although the question of equality of arms is a critical issue in adversarial systems, it is equally problematical in inquisitorial jurisdictions (but on different grounds), as is revealed by the jurisprudence of the European Court of Human Rights concerning article 6 thereof. The concern is that the inquisitorial system, which relegates the accused to the second rank, denies the accused the right to put his side of the case. In particular, he or she is not in a position effectively to cross-examine witnesses or test evidence, nor independently to introduce evidence at trial.53

 

So although greater official responsibility for truth finding may solve the problem of inequality of arms that exists in adversarial systems, wholesale importation of the inquisitorial model may also systematically disadvantage the accused.

 

Because the pre-trial stage is secret and not normally contradictoire in a civilian jurisdiction, the accused does not have any great role to play at that stage. Nonetheless there is more judicial supervision of processes and procedures at that stage, and the power of supervision is far more systematised. There

 

 

 

are various layers of pre-trial supervision in the inquisitorial systems, at least in theory: the prosecutor supervises the police; the investigating magistrate supervises the prosecutor; and the chambre d'accusation supervises the investigating magistrate (by way of appeals against the judicial determinations of the investigating magistrate). A further move in civil law countries would see the accused given a greater role at the pre-trial stage, through the introduction of a juge de /'instruction as opposed to a juge d'instruction. In effect this would enable the accused to request the ordering of certain investigative measures from a court; however, the result may be a cumbersome and inefficient process.

 

Such supervision is lacking in adversarial systems. Supervision is, however, more important at the pre-trial stage in inquisitorial systems than in adversarial systems, to ensure the objective composition of the dossier, since the latter will be communicated to the trial court in a manner less contradictoire than the presentation of evidence in an adversarial trial court. Hence in the inquisitorial system, strict and continuous supervision of the police, both by the parquet and by the investigating magistrate, is of crucial importance.

 

That is less the case in adversarial systems, and a greater focus on judicial management, rather than judicial supervision may be more appropriate in such systems. Obviously, where an investigating magistrate is involved, there is effective judicial management of the progress of a case. But the Italian model may be of more relevance to Western Australia, with a juge de

/'instruction who does not conduct the investigation but provides judicial control over various vital steps in the process (eg measures affecting rights or liberty of the accused; classification of offences; appropriateness of diversionary measures or summary procedures), and has a judicial management function.

 

CONCLUSIONS

Some of the disadvantages of the adversarial system have been discussed earlier in this sub-section. Irrespective of those advantages and disadvantages, the attempts to tackle the common problems of both adversarial and inquisitorial systems have provided interesting comparative insights. Those attempts reveal important contemporary goals of criminal procedure: the development of alternative processes of equivalent value, based on an appropriate taxonomy of cases;54 the development of an incentive structure to motivate offenders to adopt alternatives to judicial determination of their cases; the maintenance of effective guarantees that the choice of the accused to forgo judicial determination is made freely and competently; and the maintenance of a fair, effective and well adapted system of judicial determination of cases. The broad realisation that a/ternative ways of dea/ing with offenders can be both more effective, cheaper and faster than the judicial method, underlies the search for more flexibility. But choice and flexibility are subject to the crucial proviso that the accused's right to have his case

 

 

 

considered judicially, with all the guarantees of fairness, civil rights and objectivity that that implies, must be effectively maintained.

 

The inquisitorial system, with its established level of supervision and judicial control at the pre-trial stage, theoretica//y lends itself better to a more flexible process in which the trial is only one of a number of options of equal value; whether it does so in practice is less certain. Nonetheless, there