Adversarial System Vs. Inquisitorial System

5. ADVERSARIAL SYSTEM vs. INQUISITORIAL SYSTEM

The following table outlines the fundamental differences (and areas of convergence) between typical adversarial and inquisitorial systems: Adversarial System Inquisitorial System

Binding force of case law Previous decisions by higher courts are binding on lower courts. Traditionally, there is little use of judicial precedent (case law). This means Judges are free to decide each case independently of previous decisions, by applying the relevant statutes. There is therefore heavier reliance on comprehensive statutes/codes of law.

Investigation The responsibility for gathering evidence rests with the parties (the Police and the defence). The typical criminal proceeding is divided into 3 phases:

In Germany there is a preference for narrative testimony, in which the witness gives their version of events without shaping by questions from the prosecution or defence.

Traditionally there is no ability for the defendant to plead guilty.

Role of the trial Judge and counsel The Judge is a referee at the hearing. It is the Judge’s function to ensure that the court case is conducted in a manner that observes due process. The Judge decides whether the defendant is guilty beyond reasonable doubt (except in jury trials where the jury performs that role), and determines the sentence.

Lawyers are primarily responsible for introducing evidence and questioning witnesses. Judges are required to direct the courtroom debate and to come to a final decision.

The Judge assumes the role of principal interrogator of witnesses and the defendant, and is under an obligation to take evidence until he or she ascertains the truth.

It is the Judge that carries out most of the examination of witnesses, arising from their obligation to inquire into the charges and to evaluate all relevant evidence in reaching their

This can be achieved by adopting a penal policy which imposes appropriate punishment. Emphasizing on this aspect of penal justice, the Supreme Court in Ankush Maruti Shinde v. State of Maharashtra , reiterated that, “in perpetuating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Imposing of sentence without considering its effect on social order may be in reality a futile exercise…. It is therefore, the duty of every court to avoid proper sentence having regard to the nature of the offence and the manner in which it was perpetuated or