Sunday, August 29, 2010
So i just finished my Legal Studies essay for school, if you guys are interested, please read :p
1. Describe and explain four differences between the adversarial and inquisitorial systems of trail. (12 Marks).
The Australian Court system is mainly based on an adversarial court system, this system aims to provide society with peaceful ways to resolve conflicts between individuals. Courts use adjudication as their dispute settlement method. However many countries, such as Germany, use the inquisitorial system as an alternative method of dispute resolution. The crucial aim of the Adversarial system is to find winner, whilst the inquisitorial system aims to find the truth.
The role of the individual plays a crucial part over the conduct of the case in an adversarial system, whilst the role is very limited for a inquisitorial system. In the adversary trial, individuals are responsible for the preparation and presentation of a case. Parties can initiate the case, parties can decide on the facts and issues that are presented to the case. Parties can also determine when and where the trial will take place, and parties are responsible for presenting their case. In the Inquisitorial system, parties are limited to only responding to the directions of the court in presenting arguments to the court.
A significant difference is the role of the judge. In an Adversary trial, the role of the judge is mainly to umpire disputes between parties by applying the relevant law. The Judge is not involved in investigations of matters that go to trial. In an adversary trial, the collection of facts can be limited by the role of the individual plays in the preparation and presentation of evidence. In the adversary trail, the truth is ascertained from the evidence presented by both parties. On the other hand the inquisitorial system allows the judge to actively ensure that all of the facts have been collected and presented. The courts are involved in the investigation process. The judges have control over the collection of evidence as well as having the discretion to decide the admissibility of evidence. Inquisitorial judges can call witnesses and question the witnesses. Judges of the Inquisitorial system are not bound by the strict rules of evidence used in Adversary trials. When a jury is used in the adversary trail, it is the jury who make a decision as to guilt. When a jury are used in the inquisitorial system they work with the judges and also may be involved in determining the sentence.
In contrast to the adversary system, there is less reliance on strict rules of evidence and procedure in the inquisitorial system. There are extensive pre-trial procedures. Undertaken in the inquisitorial system, and sometimes the innocence of the accused will be established then, so a trial can be avoided. At trial, the emphasis is on finding the truth, so new evidence or material can be brought in by the judges at any time. There is much greater reliance on documentary evidence, whereas evidence in an adversary trial is predominantly oral. Also, witnesses in the inquisitorial are free to describe their story of evidence in their words, rather than respond to direct questioning by legal counsel. Any questioning of witnesses is undertaken by the judge(s). However, in an Adversary system, rules of evidences are concerned with proof of facts, and are there for the protection of both parties. Admissible evidence includes: oral evidence, objects and circumstantial evidence. Rules of evidences are concerned with proof of facts, and are there for the protection of both parties.
In addition, the burden of proof (party with the responsibility of proving the case) is on the party bringing the case that is either the prosecution (criminal) or plaintiff (civil) the Adversary system.
The standard of proof (extent to which case needs to be proven) should be beyond reasonable doubt (criminal) or on the balance of probability. The burden of proof for the Inquisitorial System is not significantly different from that in Australian courts. The case against the defendant must prove the case beyond reasonable doubt.