Chapter 9.  A system of trial where the court is actively involved in determining the facts and conduct of trial.  Originated – 1000 year Roman law.

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Presentation transcript:

Chapter 9

 A system of trial where the court is actively involved in determining the facts and conduct of trial.  Originated – 1000 year Roman law  Variations of this system used in Europe, Asia and South American countries.

 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) France – d’intruction (investigating magistrate) Conducts the investigation, supervises the police work, finds and questions witnesses and suspects, orders searches and finds evidence

 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)

 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.’

 Lesser role due to judges active role  Assist judge with finding out the truth  This may include further questioning of witnesses

 No formal burden or standard is set  Judge is personally responsible for bringing evidence and finding out the truth.

 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. Decision maker more active role 2. Witnesses are mostly called by decision maker 3. Less reliance on legal rep 4. The decision maker controls the production of evidence 5. Cost of inquisitorial system is mainly born by the state 6. Use of mainly written statements reduces costs

1. The judge is less impartial 2. The parties may feel at the mercy of the investigating judge 3. Parties not able to call own experts 4. Greater reliance on written evidence 5. Judge is aware of character reports and past records

 Answer the 3 questions.  Circle key words  Plan your response – e.g. each paragraph new idea  Draft your answers in dot points

1. 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)

 Read and summarise pages 492 to 504  The jury system