Use of the Adversarial system to dispense justice.
I am ever mindful of the diet of rough justice served up daily by the courts. Common law countries, such as America and the United Kingdom, rely on the ‘adversarial system’. It is used to dispense justice and deliver satisfactory outcomes. But does it? If it is considered to be the best method available to dispense justice it continues to fail us with alarming consistency. And I have to ask, is there a better way to dispense justice. Millions of tax-payers dollars are spent every year on the system. Two advocates represent their parties’ positions before a jury or judge, who attempt to determine the truth of the case.
Have you ever wondered why the verdict is always GUILTY or NOT GUILTY? It is never INNOCENT.
In contrast, the inquisitorial method is used in some civil law systems. A judge, or group of judges investigates the case to see if there is a case to answer and whether a trial is warranted.
The ‘adversarial system’ is more analogous to a sporting event. Two teams compete in a ‘win at all costs’ contest. Defence vs Prosecution (or Defence vs Attack). The players will have little compunction in attempting to influence the Referee (Judge or Jury) into making decisions in their favour. The validity of their appeals will have scant regard for the truth, which is seen as irrelevant. This is a win at all costs contest.
Honour in Sport vs Honour in Court.
In fact, there may be more honour and mutual respect in sport than in the courtroom. The court is where witnesses give their unpaid time (unless subpoenaed) in the pursuit of justice. Here is where they are subjected to cross-examination. They are often badgered into giving misleading testimony. Sometimes they are treated with less respect than a sewer rat and used as pawns in a surreal chess game.
Access to information, via social media particularly, Make it 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. Prosecutors often go too far to secure a conviction to improve their ratings.
The way different jurisdictions conduct trials and the process, varies considerably. 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. But 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. The French understand, as common lawyers apparently do not, that deranged people can plead guilty to anything, including murder.
The attraction of the French System
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. 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. So, police and prosecution can get locked into a false position with innocent suspects.
“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 ……”
Cases of serious crime – murder, manslaughter, rape, armed robbery – 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, and 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. They do not rush to a conclusion, and 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.