Effectiveness versus Control in Legal System
The direction of a case greatly signifies its outcome. Therefore, it is essential for the parties to be in control of the direction and the evidence displayed in a court. In the video showing T-Mac’s Legal Studies, comparison is made between inquisitorial and adversary systems. Both systems have elements of effectiveness and control but in different parties. From the video, it is better for the parties to control the case rather than be at the mercy of the judge.
Comparison between the Inquisitorial and the Adversary System
Parties have minimum role, in inquisitorial system, of responding to the court’s directions unlike in the adversary system where parties actively decide the direction of the case (Macdonaldb, 2012). The judge has an active role in this system as he/she investigates cases, defines issues to be resolved, and collects evidence with the police. The law enforcement is mandated to collect additional verification in a bid to find the truth. Additionally, the judge is obliged to call, question, and raise other matters of law. Attorneys assist in evaluating the truth, a role that incorporates inquiring from witnesses. In an inquisitorial system, burden or standard of proof is lacking. The judge is expected to carry the burden of bringing evidence, finding, and pursuing the truth. The rules of evidence of this system hardly rely on the strict rules; therefore, unfounded information and improperly obtained evidence is permissible (Macdonalda, 2012). Witnesses are offered opportunities to share their stories as they testify, instead of answering specific questions in this system.
Inquisitorial system has advantages, such as a more active role assumed by the decision-maker who considers the accessible evidence. The judge decides the valid evidence, with the objective of pursuing the truth, which is a bigger burden. Additionally, the roles of the parties are greatly reduced as control is placed on a third party and inequity reduced. Greater application of written statements in this system has advantages, such as reduction of costs of proceedings since it is quicker than the oral evidence. It is also beneficial in achieving attainable solutions.
However, parties lose their right of testing proofs submitted in the court through cross-examination. Parties in the adversary system are in control of the case as they control their case and decide the kind of evidence they present. The adversary system enables the party with the case to prove it according to the set standard. In the inquisitorial system, no formal standard of proof and burden exists as the judge collects evidence and pursues the truth. The adversary system has strict rules of evidence with the aim of maintaining fairness and emerging truth through questioning (Macdonalda, 2012). The inquisitorial system, however, lacks strict rules as the judge is the determinant of the kind of permissible evidence and the witnesses are able to share their story rather than responding to questions.
The inquisitorial system is majorly applied in some parts of Europe and Asia. The court’s major role in this system is to conduct trial, determine facts, and find the truth as an affirmation that effective operation of the legal system should benefit the entire society. This is unlike the Adversary system where the parties are assured of fair hearing and that finding the truth is the focus. Parties in a case law, therefore, need to control the case and decide on the presentation of the evidence.
Macdonald, T. (2012). VCE Legal Studies-Unit 4 AOS 2-Major Features of the Adversary
System. [Motion Picture]. https://www.youtube.com/watch?v=Tx8sDVl7sBk&list=PLD8F28C27EF14895A
Macdonald, T. (2012). VCE Legal Studies-Unit 4 AOS 2: Strengths and Weaknesses of the
Adversary System. [Motion Picture].