Adversarial System Vs. Inquisitorial System

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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:
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Examining phase There is no examination phase, so an independent evaluation of the evidence collected during investigation is left to the trial. The examining phase is usually conducted in writing. An examining Judge completes and reviews the written record and decides whether the case should proceed to trial.
The examining Judge plays an active role in the collection of evidence and interrogation of witnesses. In some inquisitorial systems, the “legality principle” dictates that prosecution must take place in all cases in which sufficient evidence exists (ie, the prosecutor or Judge has limited discretion as to whether or not charges will be brought).
The trial An adversarial system requires the prosecutor, acting on behalf of the State, and the defence lawyer, acting on behalf of the accused, to offer their version of events and argue their case before an impartial adjudicator (a Judge and/or jury).
Each witness gives their evidence-in-chief (orally) and may be cross-examined by opposing counsel and re-examined. As a result of the thoroughness of the examining phase, a record of evidence has already been made and is equally available to the prosecution and defence well in advance of the
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However, some commentators view adversarial systems as offering stronger protections for defendants due to their interpretation of the right to silence. In both systems the accused is protected from self-incrimination and guaranteed the right to a fair trial.
Role of the victim Victims are not a party to proceedings. Prosecutors act on behalf of the State and do not represent the victim.
In New Zealand, victims can provide a victim impact statement to the court at sentencing, which the Judge must take into account when determining the offender’s sentence. The victim generally has a more recognised role in inquisitorial systems – they usually have the status of a party to proceedings.
In some jurisdictions, victims have a formal role in the pre-trial investigative stage, including a recognised right to request particular lines of inquiry or to participate in interviews by the investigating authority.
At the trial, they generally have independent standing and some jurisdictions allow victims to be represented by their own

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