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Comparison Of Trial Procedure Between Common and Civil law countries: Adversarial and Inquisitorial systems

The Criminal Justice System is the process of arresting offenders, followed by stages of inquiry to find proof. After that, charges are filed, a defence is formed, trials are held, and sentences are bestowed if he is found guilty or acquitted if he is proven innocent. Offences which are criminal in nature are often examined by exploring the facts and or situations, circumstances, and contexts to show the individual's guilt.

A comprehensive investigation is carried out in a disciplined way, paying close attention to details, evaluating and analysing material in order to reach a conclusion and prosecute the individual who has committed the criminal act.

The trial before the honourable court is a judicial examination of the matters brought before a jury or judge between the parties, whether they be of law or facts. Pieces of evidence are evaluated by the judge in criminal trials to determine guilt. For the goal of determining the outcome, the judge considers the law of the land, the facts brought before him, or the legislation presented in the respective case.

Types Of Criminal Justice System

There are many various kinds of criminal justice systems throughout the world to protect and sustain order and peace within their area of authority by developing a social uniform policy, the law. Punishments can be either punitive or rehabilitative in character.

However, the most common and prevalent among all are:
Adversary system or Accusatory system:
Adversary system is the court system where a judge decides on a case argued by a prosecutor who is suing the plaintiff and the defense attorney who defends their plaintiff. A jury has also been used to decide such cases.[1]

Inquisitorial system:
Proof taking used in civil law, whereby the judge conducts the trial, determines what questions to ask, and defines the scope and extent of the inquiry[2]

General Overview
When there is really nothing more than assessing an individual's guilt, there are numerous techniques such as tossing a coin or rolling a dice, which is the simplest, or any other technique or method in which the outcome is established only by luck and chance. Or, an administrator can be assigned and all of the things for the determination. Nonetheless, there is a certain set of procedures and systems that are followed[3].

In a trial, evidence is presented and evaluated, and ultimately a conclusion or decision is drawn. The main goal of a trial is to produce rational decisions within the confines of a trial procedure. Various governments over the world have different systems in place to achieve this goal.

The system of trial is a judicial assessment of the matters brought in court before a jury or judge in between litigants and defendants, to get solved in accordance to laws and facts. Bits of evidence and witnesses are reviewed by the judge in criminal trials to determine guilt. For the goal of determining the end result, innocence or guilt, the judge considers the law of the land, the facts presented before him, or the law put in the respective case.

Most nations across the world that utilise attorneys and judges in court have one of two systems: adversarial or inquisitorial.

Adversary system
In this method, two adept advocates go toe to toe. respective advocates indulge to prepare with the goal of persuading the court through compelling arguments. There really is no equilibrium for this system; if one attorney is more competent, he may move the case in his client's favour[4].

The adversarial system's dominant assumption is that a struggle between the counsels will expose the truth or reality without the involvement of the judge, who only decides after hearing he counsels and decides in the favour of strong of strong supporting arguments. Because of the efficacy and persuasiveness of the councils, the destiny of the perpetrator is jeopardised in the adversarial system. As evidences are provided by the advocate, they are able to conceal negative facts, which is deceptive in nature.

Inquisitorial system
Judges evaluate and express concerns in this system unlike adversarial systems where the major part carried out by the counsels upon which the judge gives his or her judgement on the basis of the strength and credibility of the arguments and evidence. In common law countries like France, there are two types of magistrates: examining or investigating magistrates and chief magistrates.

The process's efficiency is tailored to the specific judge's capacity to be thorough and fair. It's all upon the judge and its skill, the more skill the more prudent judgements unlike in adversarial systems where the more skilful the lawyer the more chance of getting judgements in his client's favour[5]. The inquisitorial system is designed to focus on truth finding while minimising the danger.

Civil And Common Law Countries

Civil law countries are generally former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, covering much of Central and South America. The majority of Central and Eastern European and East Asian nations likewise adhere to a civil law framework[6].

Whereas the Common Law is a British legacy inherited by the United States, Canada, and the Commonwealth. The common law system emerged in Britain during the Norman Conquest, through the medieval era, and through the Renaissance, as rulers solidified political authority and integrated many of the country's judicial traditions[7].

The Comparison
  1. Impact of precedents:
    The adversarial system which is predominantly followed in common law countries differ with the inquisitorial system followed by the civil law countries on the concept of following precedents. the earlier or past judgements and decisions given by the courts of higher hierarchy are given importance and are regarded as having a binding effect whereas in the inquisitorial system, precedents are not given much importance and doesn't have any binding effect[8]. The judges or jurors make their own decisions based on the applicable legislation, which is why the code of law is given the utmost importance.
  2. Investigation procedure:
    In the adversarial system the parties of the respective case, such as the police and the defence, are responsible for bringing and gathering the evidence and related matters, but in the inquisitorial system, the government officials gather the pieces of evidence, conduct the investigation themselves, or request the police to do so. The police might be instructed about the priorities by public prosecution services. Also, in some inquisitorial systems the judge puts himself/herself in the shoes of an investigating officer and may conduct the investigation procedure whereas it is just opposite in the case of adversarial system where the judges just give their judgement upon the facts and evidences produced before them.
  3. The examination phase:
    In an adversarial system, there is nothing like an independent examination, and the process or method of cross-examination is just a portion of the trial. However, in inquisitorial system, the examining judge is in charge of interrogating and scrutinizing the witnesses and gathering the evidences of a respective case.
  4. The trial phase:
    In the course of trial, the state must be represented by one lawyer and the defendant must be represented by another before the adjudicator/judge. Witnesses are cross-examined or re-examined, and the testimony in chief is taken. While there is no cross-examination or re-examination of witnesses in the inquisitorial system, witnesses are interrogated and confronted during the examining phase.
  5. The role of judge and counsel:
    The judge makes the judgement after ascertaining and affirming that the due process of law is obeyed in the court of law. In the adversarial system, counsel offers evidence and questions witnesses[9]. However, In the inquisitorial system, the judge is in charge of the courtroom, procedures, questioning of witnesses, and evidence assessment in order to make a judgement or arrive at a decision.
  6. Evidence:
    In adversarial systems, there is a clear difference between admissible and inadmissible evidences, its applicability and non-applicability in the court of law, and the notion of hearsay testimony which is readily accepted if it is credible, but in the inquisitorial system, the rules governing acceptance of evidences are more liberal and easier. If a judge believes or finds a piece of evidence to be relevant, it is allowed. There is no hearsay rule in many inquisitorial systems[10].
  7. The victim's role:
    The victim is not really a party in the adversarial system since the case represents the state against the perpetrator. The victim has the status of a party in the trial under the inquisitorial system.
  8. The Court Structure:
    Since common law nations use the adversarial system, courts have extensive adjudication powers, whereas civil law countries use the inquisitorial system, which means specialized courts deal with constitutional law, criminal law, administrative law, commercial law, and civil or private law.

Trial In India (A Common Law Country)

In case of India, it has a well-established legislative, regulatory, and administrative structure for the trail of criminal cases.
The Indian Penal Code is largely controlled by three Acts.
  1. The Code of Criminal Procedure, 1973 (Cr.P.C.)
  2. The Indian Penal Code, 1960 (IPC)
  3. The Indian Evidence Act, 1872 (IEA)

Step 1

Framing Of The Charges

This is the very beginning of the whole procedure. When a case is brought before the court, the court unveils significant allegations against the accused that have not been adequately justified, and the court constructs the charge of accusation and begins with the trial.

Step 2

Recording Of The Evidences Of The Prosecution

As the accusations are framed, witnesses' testimonies are taken and then they are cross-examined. This is referred to as examination in chief and cross-examination.

Step 3
The Statement Of The Accused
Here the accused person is given a fair chance to explain any compromising facts or circumstances in the case which may become very much relevant and important in the context of the trail.

Step 4
The Evidence Provided By The Defence
Here it's all up to the wish of the accused person, he may present documents and relevant evidences that are admissible in accordance of the Indian evidence act 1872, and those will be cross-examined by the prosecution. It is unnecessary since the prosecution has the burden of proof and the producing of accused evidence is thus not a mandatory act.

Step 5
Closing And Final Arguments
This is the trial's last stage. The prosecutor will summarize the prosecution case and will give closing arguments, and the accused is asked to respond.

Step 6
It's the final and the last Step. Following the completion of the prosecutor's and defence's final and concluding arguments, the judge renders his verdict or the judgement in the trial.

Trial In France (A Civil Law Country)

Step 1
The charges of the accused are read to the defendant during the arraignment, and the defendant is asked to plead guilty or not. And if the accused accepts the guilty, the court will either punish him on accordance to the norms of sentencing in their respective penal laws. But when the accused pleads not guilty, the judge decides the next date of the hearing which is known as the bail hearing or release hearing[11].

Step 2

Bail Hearing

The accused individual who is in detention at the time of the arraignment must be freed on certain terms unless the counsel of the prosecution objects and objectives should be met. If the defendant does not abide by the terms, further charges may be brought against him.

Step 3

Preliminary Inquiry And Trial

Only once adequate evidence to bring the case to court is established can the trial begin. In both instances, the prosecutor and defence counsel summon and question witnesses, including the victim or victims, and offer evidence and arguments in support of their respective positions[12]. When the evidence is determined to be inadequate during the preliminary inquiry, the charges against the accused are dismissed and if the evidence is found to be weak during the trial, the accused is acquitted.

Step 4
After all necessary procedure if the accused is found guilty, the honourable court may impose a punishment or seek a pre-sentencing report. Then the parole officer should produce and prepare this report, in which the accused's behaviour in society will be discussed and observed, and the victim may be apprehensive about the type and gravity of the offence.


Adversarial System

In the adversarial system, the lawyer is obligated to operate actively and honestly on behalf of his client. Ardent and devoted advocacy entails the responsibility to seek out all positive evidence, nullify, or eliminate any negative evidence, and fight for the most beneficial reading of the law on behalf of his client.

Here in this system the parties offer evidence and thus occasionally some parties deliberately take a much longer time to present evidence before the court. As the work of evidence collecting and presentation are entirely driven by the parties, the decision maker or the judge will only hear the evidences that the parties wish to offer and present before the court.

It is often found that the concept of Individual rights protection, as well as the assumption of innocence and the benefit of the doubt, can often result in the release of a criminal from guilt. Parties with the intent to deceive can introduce fraudulent witnesses in order to skew the facts. The Standards of necessitate advocacy and client allegiance, hinders the pursuit of truth[13].

Also, the police may not always be able to uncover enough evidence against the accused. sometimes the police also become helpless as a lack of help from the accused person. As a result of which, the case is eventually gets dropped.

Inquisitorial System

Here Both the inquiring magistrate and the judge have unrestricted ability to arrest and adjudicate the matter which is indeed very crucial to a particular case in hand. As the inquisitorial system the court is involved in the questioning and the fact finding which may sometimes result in a prejudiced attitude towards the conduct.

Here in this systems the accused's right to privacy also gets violated and misused frequently[14]. The respected Prosecutors and police officers abuse or misuse their authority since they are subject to distinct laws that govern their action and method of working. the Parties to the case are unable to summon their own expert which makes it another disadvantageous side of this system.

Although both adversarial and inquisitorial systems are critiqued, but as the credibility of the judgements is called into question, the systems remain in place and followed in various countries.

In an adversarial system, the defendant and the government (state) are the parties in a criminal case, but in an inquisitorial system, the victim is also a party which according to me is a beneficial characteristic of the adversarial system.

Fundamental adversary principles such as the assumption of innocence and confirmation of culpability beyond reasonable doubt are great, because if a person is alleged to have committed any offence, he is just only an accused, not a perpetrator or proved criminal, and he should have actual rights and certain powers which are unfortunately turned down in an inquisitorial system. Last bit no the least both the systems have their own, characteristics and effectives, criticism but they both have the same goal in all towards the society.

It can be said that under the adversarial rule, the societal costs related to a given level of justice are always lower. However, the inquisitorial rule may be preferable since it permits the government to regulate all investigating procedures and associated costs. Under the adversarial system, nevertheless, investigative expenses will be primarily restricted by personal freedom and wealth of a rich individual, resulting in a reduced justice level, increased financial costs, and potentially massive discrepancies[15].

As the entire motivation is to resolve a case in favour of one of the parties, it is not really a huge problem, but there is a suitable method developed Step by Step to accomplish the shared goal of punishment for the criminal who has been found guilty after trial, and relief for the victim, as well as to guarantee a proper and fair trial or hearing. Each systems have their very own protocols, as well as perks and downsides.

  1. Black's Law Dictionary 11th edition 2019
  2. Black's Law Dictionary 11th edition 2019
  3. Deffains, Bruno, and Dominique Demougin. The Inquisitorial and the Adversarial Procedure in a Criminal Court Setting. Journal of Institutional and Theoretical Economics (JITE) / Zeitschrift F�r Die Gesamte Staatswissenschaft, vol. 164, no. 1, 2008, pp. 31�43.
  4. Bowcott, O., 2014. Inquisitorial system may be better for family and civil cases, says top judge. [online] the Guardian
  5. Adele, Justice, Comparative Analysis between Adversarial and Inquisitorial Legal Systems (November 25, 2017).
  6. Block, Michael K., et al. An Experimental Comparison of Adversarial versus Inquisitorial Procedural Regimes. American Law and Economics Review, vol. 2, no. 1, 2000, pp. 170�194.
  7. Deffains, Bruno, and Dominique Demougin. The Inquisitorial and the Adversarial Procedure in a Criminal Court Setting. Journal of Institutional and Theoretical Economics (JITE) / Zeitschrift F�r Die Gesamte Staatswissenschaft, vol. 164, no. 1, 2008, pp. 31�43.
  8. Encyclopedia Britannica. 2014. inquisitorial procedure | law. [online]
  9. The Adversarial System vs. The Inqisitorial System, Yan Yu, Nankai University, School of Law
  10. Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. Crim. L. & Criminology 118 (1987).
  11. Stuntz, William J. Inequality and Adversarial Criminal Procedure: Comment. Journal of Institutional and Theoretical Economics (JITE) / Zeitschrift F�r Die Gesamte Staatswissenschaft, vol. 164, no. 1, 2008, pp. 47�51.
  12. Goldstein, Abraham S. Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure. Stanford Law Review, vol. 26, no. 5, 1974, pp. 1009�1025.
  13. Kim, Chulyoung. Adversarial and Inquisitorial Procedures with Information Acquisition. Journal of Law, Economics, & Organization, vol. 30, no. 4, 2014, pp. 767�803.
  14. Deffains, Bruno, and Dominique Demougin. The Inquisitorial and the Adversarial Procedure in a Criminal Court Setting. Journal of Institutional and Theoretical Economics (JITE) / Zeitschrift F�r Die Gesamte Staatswissenschaft, vol. 164, no. 1, 2008, pp. 31�43. JSTOR,
  15. 2015. Appendix B: a comparison of the inquisitorial and adversarial systems � Ministry of Justice, New Zealand.

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