The Inquisitorial System of Trial

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defence. The system of trial used in many European countries such as France, and in some Australian courts, such as the Family Court and Coroner’s Court Based on the idea that a trained professional investigates both sides of the matter and has access to all the information about it so the truth will be discovered. Rather than being a contest, the inquisitorial system is an investigation

Role of the Parties Greatly reduced role – can have input via statements and making requests of the judges but they do not control proceedings or evidence. Better Burdon of proof is taken off parties, so it is less stressful and expensive for them Worse Parties may feel at the mercy of the judges and therefore less satisfied with the decision.

Role of the Judge The judge exercises almost complete control over the case. They collect and examine evidence, choose which witnesses to hear from and decide both the relevant law and the facts. Better Judges expertise is used Parties are not able to hide or manipulate unfavourable evidence. Worse The judge may lose some of their impartiality, being so involved in the investigation The judge does not have to investigate angles the parties think are important.

Rules of Evidence and Procedure Rules of evidence are almost non-existent: hearsay, prior convictions and written evidence are all allowed. Rules of procedure are not necessary as the judge conducts proceedings. Better Parties do not have to navigate complex and stressful procedures. All relevant evidence is taken into account Worse Evidence such as prior convictions may be unfairly prejudicial to the defendant Documentary and hearsay evidence cannot be tested thoroughly.

Burden and Standard of Proof There is no formal burden of proof as the judge investigates all angles of the case simultaneously. There must still be significant evidence to show that the defendant was at fault. Better The injured party does not ned to bear the burden of conducting the case Unfounded criminal or civil claims should still not succeed. Worse Because the defence’s case is examined before fault has been proven, the motion that the defendant is innocent until proven guilty is not felt strongly.

Need for Legal Representation Legal representation support the parties, explain the proceedings to them and can make requests of the judge. They may also assist the judge with investigating the case. Better Party’s success does not rest with their legal representation, so it decreases costs and doesn’t benefit wealthier parties as much Worse Parties cannot choose the person they trut the most to argue for them to given them the best chance for success

Comparison (pg 388) 8

Comparison 9