JUSTICE AND LEGAL PROCEDURE
THE FACT FINDING PROCESS – ADVERSARIAL AND INQUISITORIAL METHODOLOGY OR,
“THE PURSUIT OF VICTORY”
VERSUS “THE PURSUIT OF TRUTH”.
US Supreme Court Justice Warren Burger once remarked that if he were innocent he would prefer to be tried by a civil law court, but if he were guilty he would prefer to be tried by a common law court.
Since “the facts” are an important (absolutely fundamental) premise in reaching any practical conclusion about parties’ legal responsibilities, the fact-finding – or rather the fact-proving – structure of a legal system has a very significant effect on the outcome. Although academics can discuss problems from an omniscient “eye of God” perspective, the real world cannot; if a party cannot “prove” a fact to whatever standard, and by whatever means, the legal system requires then it might as well have never happened. Early legal procedures attempted to overcome this handicap by relying on divine intervention to protect or support the party in the “right” – methods of proof that we would now find distasteful and unacceptable. Every legal system must therefore work with a reconstructed model of reality, the content of which is determined by the rules of procedure and evidence (but which should ideally furnish the most accurate approximation possible of what actually happened?) The processes for establishing your legal rights, and providing remedies for breaches of them, do in a very practical way determine what your rights actually are in any given case. In the Liberal Democrat model outlined earlier, we now expect that that these processes will be fair and consistent with the ideals of a just system. There are two major systems for establishing fact in world legal systems: • the Anglo-American adversarial (or accusatorial) system, and • the Continental inquisitorial system (also referred to as the civil law) system which applies in most of the non-English speaking countries of Europe. There are, however, no purely adversarial or purely inquisitorial systems in existence; rather there are hybrids which are to a greater or lesser degree adversarial or civil law in nature. All enlightened evidential systems are probably honest attempts to discover and protect the truth, and we should perhaps think of these alternatives as reflecting a fundamental (but not mutually exclusive) difference in approach which, in a large measure, determines the procedural and evidential processes that apply in the courts and affect the prospect of ascertaining “the truth” in proceedings. The rival systems differ fundamentally on a key method of investigation and adjudication: reliance on the accused to furnish testimonial evidence of their guilt. The essential character of these systems was summed up by the New Zealand Law Commission in 1996 in these terms: Adversarial systems require the judge to be an impartial arbitrator of facts presented in evidence by the parties to proceedings, and imply some degree of equality between the parties. These systems are also known as accusatory, so named because a person or representative of the community makes an accusation of criminal offending against a suspect. … Inquisitorial systems are systems of justice in which the judge has an investigative as well as an adjudicative role and proceeds with an inquiry on his or her own initiative (unlike adversarial systems where the parties conduct investigations and present the evidence). The Privilege Against Self-Incrimination, A discussion paper
Hence the cryptic description of the difference as The Pursuit of Victory versus The Pursuit of Truth. ie, in an adversarial system the role of the court is that of an impartial referee, adjudicating on the respective merits of the parties’ cases and relying on the skill of their advocates in investigating, preparing and arguing the case. In an inquisitorial system the court is itself actively involved in determining the facts of...