Adversarial And Inquisitorial Systems Essay Typer

Theoretically, there is no longer any system in this world that is purely adversarial or purely inquisitorial. These legal systems have already evolved in an effort by the countries to improve their own criminal justice system. But for purposes of academic discussion, there are several known distinctions between the two legal systems.

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The Adversarial System which is the method used in the United States presumes that the truth can only be found if the litigants, the prosecution, and the defense, are in competition with each other. This system sees the court as a battlefield with either party seeking to be a victor. The prosecution aims to prove that the accused is guilty of the crime charged. They present documentary evidence and the eyewitnesses to prove that their claim is the truth. They also advance arguments and interpret laws in accordance with their interest. On the other hand, the accused does not have to prove anything at the initial stage of the trial because he has a constitutional presumption of innocence.

The Adversarial system believes that the responsibility for finding the truth should lie with the litigants, not to the judge. Thus, injury trials, the judge has a more limited role than in cases where there are no juries where the judge takes on a more active role. The role of the neutral and passive judge is only to ensure that the procedural rules are observed by excluding any irrelevant and improper evidence and ruling on objections and motions of the litigants. This system hopes that with its unique system of presenting evidence, direct examinations, cross-examinations, re-direct and re-cross-examinations, they could arrive at the truth.

On the other hand, the inquisitorial system, which was first developed by the Catholic Church during the medieval period, places the responsibility for ascertaining the truth in a legal controversy solely upon an impartial judge. The judge or the magistrate acts as the lead investigator who heads the investigation by the gathering of the facts, questioning the witness and the suspect and collecting the pieces of evidence. Unlike in the Adversarial System, the judge is not a passive recipient of information.He has a more active role as he supervises the gathering of evidence.

The role of the litigants and their representatives is very limited as their primary role is simply to assist the judge in ascertaining the truth. Although the lawyers of the litigants have an opportunity to conduct their questioning during the trial, this opportunity to conduct their direct examinations and cross examinations is very limited.


  • The Inquisitorial System. (2007) Retrieved 22 September 2007

The system of criminal procedure primarily utilized in the United States is the adversarial system. The term adversary is easily interpreted to mean opposition. Our present criminal procedure pits two sides against each other to present their respective evidence and issues surrounding a criminal act. This paper will address the adversarial system and its expressed use in criminal court proceedings in the United States. Among the questions this paper will take into consideration are: Is the adversarial system the best way to achieve justice in the criminal courts of the United States; what those limitations are; how those limitations deliver justice; alternatives to the adversarial system; and the advantages or disadvantages of those alternatives.

Achieving Justice

When confronted with the issue of the best method to achieving justice in criminal court proceedings; one must understand what the adversarial system entails.

The use of a jury, the standard of evidence relied upon and the standard of proof, the cross-examining of witnesses and the ability to plead guilty, contribute greatly to reaching justice in the adversary system. They are all reasons which help the adversary system in accomplishing fairness in criminal trials. The adversary system is a feature of the common law system and was brought to Australia with England. It has adapted to the Australian legal system. It is a system of trial where, the two sides of the case try to present and prove their version of the facts and disprove the version of the other side.(Cook, Creyke, & Geddes Hamer, 2005) A jury decides guilt or innocence, while a judge or magistrate guides the jury in areas of law, as well as deciding a suitable punishment for the defendant.

In criminal cases in the adversarial system of trial, justice is achieved through the use of evidence. In the adversarial system, the standard of evidence that can be used to support an argument is high. This is seen in the statement the rules of evidence are considerably stricter than the inquisitorial system. (Wikipedia Encyclopedia, 2008) This shows that the evidence that will be accepted is of reasonable quality and that it will less likely be made up. The burden of proof in criminal cases lies with the prosecution. The standard that guilt must be proven is beyond reasonable doubt. This is so that there is less chance of an innocent person being convicted. The statement, No matter how strong the prosecutions evidence may be, if the magistrate or the jury has any reasonable doubt that he or she is guilty, the accused is entitled to be acquitted( Nettheim, 2002) proves that there should be no doubt when convicting a person.

The standard of proof and evidence that the adversary system employs are among the factors that make it the best system for achieving justice in criminal cases. Evidence is such an important factor because often it can determine cases and the outcome of the case. For example, if there is not enough evidence presented in a committal hearing for a serious criminal offence then the case is dismissed. However, if the magistrate decides that there is enough evidence, then the case is referred to a higher court for trial.(Hamper, Derwnet, & Draper, 2002) With this in mind, evidence helps to achieve justice as enough of it and the presentation will allow the prosecution to prove that the accused is guilty of the actions they are claiming the other party to have done. This also works on the other hand, if the defendant is trying to prove their innocence, evidence can assist them in proving to the jury their innocence. If they are able to prove to one person that they are innocent, then they will be able to win their case. Thus, evidence plays an important role in the way that the adversary system of criminal trial is able to achieve justice.

The cross-examination of witnesses in the adversary system helps to make it a great system for achieving justice in criminal trials. This is an important aspect of adversary systems as it allows evidence to be used in a correct manner. This also allows for evidence that is false or misleading to be brought to light and dismissed. In some cases, the cross-examining of witnesses allows for evidence to be brought forward that was not available earlier. This can be through statements that witnesses may give. For example, a person who has omitted some small fact or matter because they thought it was irrelevant, cross-examining that person could bring the matter up and could lead to proof being found out about something that was uncertain previously. This is good for both the defendant and the prosecution as it allows both sides to contest evidence that is being presented and also to gather points for their own case.

Therefore, the defendant has the chance to prove their innocence and the prosecution will also have the opportunity to prove the guilt of the opposing party, making it fair for both sides. In this system, the prosecution and the defense present their case to an impartial court. The judge relies on both sides calling witnesses and presenting evidence to both judge and jury.(Hamper, Derwnet, & Draper, 2002) This can be seen in many cases, when cross-examining a witness to find out details assists a particular side and ensures that these points are considered when determining a verdict. The adversary system provides the best system for achieving justice in criminal cases through cross-examination of witnesses as it allows for evidence to be examined and for irrelevant or unimportant evidence to be discarded. Juries are an important element of criminal trials in the adversary system and aid it in being the best system for achieving justice. Through the use of plea bargaining in criminal trials, the adversary system is the best system for accomplishing justice.

The adversary system is the best system for achieving justice in criminal trials because of its use of several different elements. These elements combine to produce an effective and working system that provides justice to a majority of cases and instances. The implementation of plea bargaining, the standard of proof and evidence utilized, the use of juries and the cross-examining of witnesses are all features that the adversary system synthesiss to produce an efficient method for achieving justice.

Some of the disadvantages are the misconduct in the courtrooms. In the court room, just as outside the courtroom, there are always times in which misconduct of a courtroom player takes place. In today’s society, misconduct is usually dealt with by removing the individual from their position and if necessary bringing criminal charges against the individual. In the perfect society, we would continue to remove individuals from their positions if misconduct is proven and we cannot avoid bringing about criminal charges because this would just allow other courtroom players to believe that they could get away with crime.


Nettheim (2002). Understanding the Law (6th Ed.). Butterworths Australia: AustraliaCook, Creyke, Geddes & Hamer (Eds.). (2005). Laying Down the Law (6th Ed.).LexisNexis.

Hamper, Derwnet, Draper (2002). Legal Studies. Australia: Longman.

Wikipedia Encyclopidia. (1, January 2008). Adversarial System. Retrieved January 19, 2008, from, D. Derwent, B. Draper, A. (2002). Legal Studies- HSC Textbook. Longman: Australia

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