Use of the Adversarial system to dispense justice
As the seemingly endless Jodi Arias saga continues its next phase, behind closed courtroom doors in Maricopa, Arizona, I am ever mindful of the diet of rough justice served up daily by the courts in common law countries, such as America and the United Kingdom, that rely on the ‘adversarial system’ to dispense justice and deliver satisfactory outcomes. If it is considered to be the best method available to dispense justice it continues to fail us with alarming consistency. Millions of tax-payers dollars are spent every year on a system where two advocates represent their parties’ positions before a jury or judge, who attempt to determine the truth of the case.
In contrast the inquisitorial method used in some civil law systems is where a judge, or group of judges investigates the case to see if indeed there is a case to answer and whether a trial is warranted.
The ‘adversarial system’ is more analogous to a sporting event where two teams compete in a ‘win at all costs’ contest. Defence vs Prosecution (or Defence vs Attack) the players in each team will have little compunction in attempting to con the Referee (Judge or Jury) into making decisions in their favour with skant regard for the validity of their appeals. The truth has no relevance; this is a contest.
In fact there is probably more honour and mutual respect in sport than in the courtroom. Here is where witnesses give their time freely (unless subpoenaed) in the pursuit of justice. Here is where they are, under cross examination, often badgered into giving misleading testimony, treated with less respect than a sewer rat and used like pawns in a surreal chess game.
Such is the access that everyone has to information, via social media particularly, that it has become very difficult to sequester juries effectively or rely on their integrity. A large portion of the media’s agenda leaves a lot to be desired and ‘trial by media’, however you regard it, is bound to influence proceedings.
Perjury, although a serious offence, does not seem to bother people to the same extent it once did. I am quite staggered at the number of witnesses that appear far less than credible and prosecutors who will go to any lengths to secure a conviction to improve their ratings.
The way different jurisdictions conduct trials and the process varies considerably so there is little consistency and it’s difficult to feel comfortable about the safety of many convictions.
As a result I fear miscarriages of justice will not decrease and because of the time lapse many cases effectively end up unsolved.
There must be a better way and I am sorry to say I don’t have the answer.
Use of the inquisitorial system to dispense justice
However, it has always seemed to me that the inquisitorial system employed in civil law countries has a better chance of dispensing justice fairly.
Here is what one of Britain’s most radical and well-respected defence barristers Michael Mansfield QC, who practised his whole career under the ‘adversarial system’ said about the ‘inquisitorial system’ in 1993;
“Perhaps one of the most important aspects of this [French] system is that every single piece of information relating to the case – witness statements, forensic reports, the juge’s instructions to the police and their response – are all included in the dossier and the defence lawyer has access to it.”
The suspect is questioned by the juge (judge), not the police, in the presence of his / her lawyer. He / she has a right of silence but usually speaks; an inference can be drawn from a refusal. There is no such thing as a plea of guilty; the juge and later the trial judge and jury have to find out the truth for themselves, and in any event the French understand, as common lawyers apparently do not, that deranged people can plead guilty to anything, including murder.
Mansfield QC is attracted to the French version of the adversary system because the defence lawyer has access to the dossier. The lawyer can see how the case is running and if his client is innocent he has the chance to point to evidence that will put the juge right at an early stage. In common law countries, the adversary system does not exist at the pre-trial stage, and police and prosecution can get locked into a false position with innocent suspects.
Mansfield continues: “Both parties are playing with exactly the same cards and should the case eventually go to court, the prosecution’s case will be based on the information in the dossier and nothing else. Defence lawyers will have the same dossier and there will be no surprises, no secret witnesses, no last-minute evidence presented on the first day in court and, equally as important, nothing is secretly excluded from evidence which doesn’t fit the prosecution’s case. The withholding of information, together with uncorroborated confessions, has been a regular theme in Britain’s appalling record of miscarriages ……”
In cases of serious crime – murder, manslaughter, rape, armed robbery – which carry long terms of imprisonment, the police investigation is supervised by a trained juge d’instruction, literally judge of the investigation. The rank is akin to a magistrate; it can be translated as examining magistrate. Half are women. Their task is to find out what happened, not to get a conviction. They can get forensic help from experts independent of the state, and they reconstruct the crime as soon as possible, but do not rush to a conclusion. There is no committal hearing.
Let us hope that in time we will focus on finding the truth before jumping to conclusions and passing judgment prematurely.
Let’s hope we will move away from treating trials as games to be won or lost depending on who presents the most convincing arguments.
And above all let’s hope we can find a new way to dispense justice where everyone involved is given the respect they are entitled to as human beings.