18 March 2012 Written by  Aderajew Teklu and Kedir Mohammed

Systems of Criminal Procedure


Adjudicatory Processes

The process of adjudication is typically either adversarial (also called accusatorial) or inquisitorial in nature… Both systems have the finding of truth as a fundamental aim, and each is guided by the principle that the guilty should be punished and the innocent left alone… The differences between the two are in their assumptions about the best way to find the truth.

The adversarial system is often considered the successor to the private vengeance. As societies evolve, the power to initiate action first lies with the wronged person (the accuser). That power eventually extends to relatives of the “victim,” then to all members of the person’s group, and finally to the government responsible for the well-being of the person. In time, then, the accuser moves from being the individual to being the state (as in State of Texas v. Jones). The setting for the accusation is before an impartial official serving as referee (judge). Because the disputing parties (the state and the accused) behave in a manner similar to a contest, they are considered adversaries.

The inquisitorial process also shows societal evolution but along a different path. Here, the wronged person is eliminated as a private accuser and replaced with a public official. Unlike the adversarial process, the inquisitorial process does not keep the pubic official in the role of accuser. Instead of accusation, there is now, investigation. Because the parties are not engaged in a contest, a referee is not necessary. Instead, the impartial official (judge) serves as an inquisitor actively seeking to determine what transpired.

In general terms, the common legal tradition uses the adversarial process, whereas the civil legal tradition follows one of inquisition. Because of its civil roots, the socialist tradition also exemplifies the inquisitorial process. The Islamic legal tradition offers a unique combination relying on the private accusation in an inquisitorial-type setting.

The Adversarial System

The adversarial system is often compared to a game or contest in which both sides are trying to win and a neutral umpire decides two things: (1) whether they are playing by the rules and (2) which side wins. Often, the judge acts as umpire for both these aspects of the contest. In some cases, the judge’s chief responsibility is to make decisions that ensure a fair contest, while a jury declares the actual winner.

The analogy to a game is not inappropriate when analogy to a game is not inappropriate when describing an adversary system. Not only is the accused not obligated to cooperate with the government in a case, but the government may fail to disclose crucial elements of its case against the accused. This does not mean that the government has the right to ignore or suppress evidence that would help the other side in the case-only the accused has that right. But it does mean that the prosecutor, who represents the government, is expected to devote his or her efforts to providing guilt rather than potential innocence once an individual has been indicted and is moving toward trial.

Another way to understand the adversarial system is to compare it to its philosophical opposite-the nonadversarial or inquisitorial system. Advocates of the adversarial systems of justice believe that the competition between the two parties is the best process for obtaining truth. Advocates of the nonadversarial system, which we will discuss later, believe that judicial control of the investigative process is the best way to uncover the truth. These fundamental beliefs create the differences in the role of witnesses, attorneys, and judges found in the common and civil law systems…

In the adversarial system, most of the procedural advantages are on the side of the accused. The right to an attorney, the right to remain silent, the right to be free of unwarranted searches and arrests, the right to compel witnesses to appear for the defense, the right to confront one’s accuser, the right to appeal-these and other rules of criminal process help keep the prosecutor from automatically winning a case. These rules have been developed over centuries as a response to abuses of citizens by monarchs and governments in dealing with their citizens, and these rules recognize that arbitrary government action remains real possibility.

There is concern that correct criminal procedure has become so extreme that predatory criminals who learn to manipulate the rules of the system are likely to win the game despite their obvious guilt. Such criticism often does not take in to consideration mitigating factors that counteract excessive manipulation of criminal procedure. In the first place, a vast majority of cases that occur in common law countries are settled through guilty pleas rather than through court trials. Students of criminal justice in the United States are well aware of the importance of plea bargaining and sentence bargaining in the settlement of criminal cases. In these cases, the accused agrees to plead guilty in return for various concessions, such as a lesser charge or a reduced sentence. On an aggregate basis, it is estimated that over 90 percent of criminal cases are settled through plea bargains in the United States.

In common law jurisprudence, a prosecutor has the obligation not to accept a guilty plea if there is no evidence to support it. However, once a guilty plea is accepted and made before a judge, no further trial is held.

America’s overt, and by now legitimized, plea bargaining seems unique in modern legal systems. Nevertheless, we find that most cases in other common law countries are also settled through guilty pleas, despite the claims of legal system personnel that no plea bargaining exists. For example, in a study of the lower criminal courts in Sheffield, England, it was found that over 80 percent of cases were settled through guilty pleas…

The decision to plea guilty rather than use the full weaponry of the adversary system to make the state prove one’s guilt weakens the system in a significant way. The motivation for pleading guilty may be varied honest remorse, overwhelming evidence of guilt, a desire to achieve a guaranteed outcome, a belief that a judge will deal more leniently with a person who does not go to trial but the result is the same. Many more cases can be processed than could be under a “pure” adversarial system, and the intricacies of adversarial criminal procedure are largely evaded.

A further factor that must be considered in discussing the supposedly dysfunctional nature of the adversarial process is that this process is in no way as complex in most common law systems as it is in the United States. For example, the exclusionary rule, which is the target of much criticism in the United States, does not exist in England in the case of most violations of search and seizure rules. In the United States, illegally obtained evidence, no matter how incriminating or useful, may not be produced at trial. In England, by contrast, only evidence that has been obtained through undue pressure on the accused is barred.

The Inquisitorial System

U.S. 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” (Burger, 1968). This remark is in some ways an indictment of the Common Law procedure in its suggestion that it is less likely than the civil law procedure to arrive at the truth of a case. We can weigh the validity of this statement as we examine some of the details of civil law procedure.

One way to anger a scholar of the civil law is to claim that a major contrast between Common Law and Civil Law criminal procedure is that in the former the accused is innocent until proven guilty while in the latter the accused is guilty until proven innocent. This is indeed not necessarily true, since both kinds of procedure are theoretically based on a presumption of innocence. Nevertheless, the extensive pretrial investigation that characterizes Civil Law systems gives rise to the feeling that defendants who actually are brought to trial are most likely to be guilty.

Criminal procedure in civil law countries is characterized as inquisitorial, as opposed to adversarial, in nature. This characterization evokes unfortunate images of the inquisition, that notorious and cruel institution that persecuted alleged heretics during the sixteenth and subsequent centuries in Spain and other Catholic countries, extorting confessions through brutal tortures and executing its victims, often by burning. In fact, however, confessions resulting from torture were the norm in both England and Continental Europe for secular as well as religious crimes until the right to remain silent becomes the distinguishing characteristic of the adversarial system of procedure.

In modern civil law systems, the inquisitorial system refers not to any legacy of the inquisition but to the extensive pretrial investigation and interrogations that are designed to ensure that no innocent person is brought to trial. Even to this extent, inquisitorial is a misleading term that does not truly describe the rather hybrid procedure that developed in civil law systems, often in emulation of common law procedural rights, during the nineteenth and twentieth centuries. Miryan Damaska (1986, p. 3) describes the inquisitorial process as an “official inquiry” and compares it to the “contest” or “dispute” that characterizes the adversary process.

Many countries of the world can be classified as having inquisitorial systems, including our model countries of France, Germany, China, and even, in some respects, Japan. But there are important disparities in criminal procedure among them. France and Germany have long civil law traditions but differ from each other with respect to some aspects of criminal procedure, such as the use of a prosecutor in Germany and an examining magistrate in France. Italy another civil law country, changed much of its pretrial process in 1988, and its system now resembles Common Law procedures in many ways. The Italians call this “process Perry Mason.”

Despite individual variations, certain aspects of criminal procedure in the civil law countries give this procedure a distinctive character. Among these are the relative ease with which procedural rules are adopted and changed and the relative length and importance of the pretrial process in determining the out come of a case.

As we have explained on several occasions, an essential characteristic of the common law is the importance of precedent, form, and procedure in the passage of cases through the courts. Indeed, it was the “common” procedural rules that brought this rather amorphous body of law together in the thirteenth and fourteenth centuries. In the Civil Law, it is the substantive rules of the law-the rules that explain what is the lawful and what is not-rather than how one makes a case in court, that have tended to predominate. The procedure for effecting legality is changed quite simply, usually through legislation. In England and the United States, by contrast, although criminal procedure rules are often modified by legislation, they have a certain continuity because of their constitutional and common law status.

The Mixed Court

The mixed court is another variation of criminal procedure that is used primarily in civil law countries but that is also found in Socialist and Common Law legal systems. It is a method of adjudication in which one or more lay judges help the professional judge come to a decision. Lay judges are typical citizens, not professional legal personnel. They are usually elected (on the local level) or chosen by the government agency responsible for monitoring the courts. The lay judges either work as volunteers a certain number of days each year or serve a term prescribed by law. Their numbers very depending on the seriousness of the case, the court level, and the laws of the country; they range from at least two to six. In effect, the lay judges replace the jury system, providing the balance between the state acting against the accused and the peers of the accused in considering the interests of justice and the community at large. It is possible in many systems for the lay judges to overrule the professional judge. However, in practice, lay judges often defer to the professional judge’s knowledge and rarely muster a majority that overrides the professional judge’s vote. Their main function seems to be a restraining one, to keep the judge from acting in an arbitrary or unreasonable manner.

The mixed court in civil law countries developed in the nineteenth century when some European countries attempted to imitate the Anglo-American criminal jury system. It reflects the importance that civil law countries place on nonprofessional participation in the court process… One of our model countries, Germany, uses lay judges, called Schoffen, extensively in courts of appeal for cases of limited jurisdiction (minor offenses) and for first-level cases of general criminal jurisdiction (criminal offenses). Some countries employ all-lay tribunals. In this form, the courts usually have one person who is legally trained to work with and provide advice to laypersons in matters that are considered less serious or during administrative or arbitration hearings.

China employs lay judges, called lay assessors, in its people’s courts to serve as adjudicators in serious criminal cases of first instance. Lay assessors in China must be twenty-three years of age and eligible to vote; they are either elected or temporarily invited to sit on the court. The United States and England also use a derivation of this method in their lower courts. Many small towns in America have a person called a justice of the peace, who carries out many legal functions, including traffic violations, some misdemeanors, small civil claims, and some domestic matters. In England, in the lower magistrates’ court, at least two lay judges must hear all summary (minor) offenses.

The Convergence of Systems

Each country develops its own code of criminal procedure, at least partially as a result of its own history, and we would have to scrutinize them all to identify all the difference among them. The classification in to adversarial and inquisitorial systems, however, seems to be increasingly a matter of style and history rather than major differences in procedure. Civil law countries have adopted many of the rules of procedure that protect the accused from arbitrary action by the state. Common law countries have modified the excesses of the adversarial system by allowing for pretrial investigations, by allowing judges to participate in trial if they choose to do so, and by making various arrangements for avoiding trial through the use of plea bargains.

Convergence can also be seen in Islamic and Socialist legal systems. In Saudi Arabia, Islamic law reflects the inquisitorial system through strong cooperation between the judge and the investigator. In addition, the defense attorney is less adversarial than in common law trials. At the same time, Islamic law includes provisions for the right to confront accusers and to remain silent and for the presumption of innocence… And with the changes in the role of judges and in the standard of proof, the Chinese may actually have moved from a strict inquisitorial to a semi-adversarial model…

The end result seems to be a certain homogenization of criminal procedure among the legal traditions. This process was predicted by legal scholar John Merryman, who over thirty years ago wrote of the blending of the inquisitorial and adversarial systems:

In a sense, it can be said that the evaluation of criminal procedure in the last two centuries in the civil law world has been away from the extremes and abuses of the inquisitorial system, and that the evolution in the common law world during the same period has been away from the abuses and excesses of the accusatorial system.

The two systems, in other words, are converging from different directions toward roughly equivalent mixed systems of criminal procedure…

Contrasting Adversarial and Inquisitorial Processes

Barton Ingraham developed an intriguing and helpful model of criminal procedure that allows us to compare and contrast procedures in a variety of nations. The application of his model to procedural criminal law resulted in the identification of four areas in which inquisitorial and adversarial procedures differ:

1. The inquisitorial systems emphasize the screening phase of the criminal process with the idea that a careful investigation will determine factual guilt. The adversarial systems emphasize the trial phase, where the idea that complex rules of evidence to produce substantive results will ensure the defendant a fair trial.

2. The adversarial systems are much more likely to restrict the involvement of the judiciary in both the investigatory and adjudicatory process. The direct involvement of the judge in inquisitorial systems contrasts with his or her more indirect involvement in adversarial systems.

3. Because the inquisitorial system assumes that all involved persons are seeking the truth, the defendant is expected (though not required) to be cooperative. That cooperation includes supplying information to investigators and answering questions at trial. The adversarial systems, on the other hand, neither expect nor require the defendant to assist investigators. The burden of proof is no the prosecutor, who assumes that the defendant will maintain silence.

4. The role of the judge in adversarial proceedings is primarily one of referee. The attorneys develop and present their respective cases, and then a jury decides between the two versions of the facts. The court in an inquisitorial system is another investigator with the added power of being able to decide the case. The judges ask most of the questions and develop the facts while the attorneys exist more to argue the interpretation that the court should give those facts…

Ingraham believes that the main objectives of the inquisitorial system are a search for truth and the achievement of procedural justice. Are these objectives different from those of the adversarial system? The adversarial approach differs in the sense that the quest for truth and justice officially begins at the trial stage because information from the investigation is not considered until presented in court. Then each side presents its own private version of the truth, and the judge or jurors must decide who is the most convincing. As a result, the importance of how a person is adjudicated seems a more important objective in the adversarial process than determining whether the accused actually committed the crime. This point is similar to the distinction made…in terms of legal guilt versus factual guilt. One might argue that although each system seeks to determine both types of guilt, the inquisitorial emphasize the latter (factual guilt) while the adversarial highlights the former (legal guilt).

Just as common law and civil law systems borrowed aspects of codification and precedent from each other, so too have the inquisitorial and adversarial systems exchanged procedures. For example, the common law systems adopted a public prosecutor to file criminal charges without relying on a grand jury. Rules of discovery compel some sharing of evidence between the opposing sides, resulting in a “search for the truth” more similar to an inquisitorial than adversarial process. Also, the role of the common law judge has increased in areas like plea negotiation and what evidence the jury will be allowed to hear. The results of this cross-pollination are systems where each contains elements of the other … The resulting mixture is not, however, as complete as that found in Islamic law.

A Mixed System

Islamic procedural law is a mixed system combining adversarial and inquisitorial aspects. Because the Shari’a is a religious law based on divine command and revelation, it did not develop through judicial precedent or legislative codification. Furthermore, it does not require administration of justice to be a combined office (for example, the inquisitorial judge) or divide in to many (for example, the adversarial attorney, judge, and jury). Identifying Islamic procedural law is not so easy. Though the sacred law prescribes penalties for criminal acts, it does not specify the means used to apprehend the offender and bring him to justice. The matter is left to the discretion of the state…

Because of this discretion, Islamic law has features of both procedural types. The inquisitorial process seems to predominate, because historically there has been little division between the judge and the investigator. In addition, the defense attorney’s role is not so much adversarial as it is one of presenting favorable evidence, safeguarding against improper incrimination, and overseeing the criminal judgments. Simultaneously, such adversarial provisions as the right to confront accusers, maintain silence, and a modified presumption of innocence reflect adversarial interests.

A peculiar twist given procedural law by Islamic justice is the differing provisions for separate categories of offenders and its impact on the presumption of innocence. Shari’a judges place suspects in to one of three categories; “(1) the accused is from the pious and righteous group; (2) he is among the disobedient and immoral; or (3) his character is unknown though neither righteous nor immoral”… These categories help judges decide the appropriate procedures to follow when a person is accused of a crime. When presented with a person of the first category, jurists usually give no credibility to the accusations. After all, the person is pious and righteous and therefore deserves the benefit of doubt. Because accusation against the sinful and immoral person are more likely to be true, given his or her lifestyle, limiting the accused’s rights and freedoms in the quest for truth is permissible. Persons in the third category are generally placed with the moral and subjected to the same restrictions.

As these examples from several countries show, there is greater diversity among nations in terms of procedural criminal law than we found on issues of substantive criminal law. However, this focus on the adjudicatory process might lead us to believe that procedural law issues are essentially differentiated on the basis of which legal tradition a country follows. That assumption would be incorrect because there are differences in procedural law both among and between the legal traditions. One area of variation is linked to the concept of judicial review. As we considered that topic, we will see that procedural criminal law shoes variation beyond that which is explained by legal tradition affiliation.

Last modified on Wednesday, 02 May 2012 13:05