Criminology

An adversarial criminal justice is a system of criminal law which is dependent on the contest between attorneys representing the parties involved in a trial. The system involves the jury composed of impartial individuals who determines the truth based on the contest. In this type of criminal justice, the judge or the jury is not involved in the investigation of the case. This form of criminal justice system has been adopted by majority of countries in the world and is based on the common law. However, in many countries in Europe and America, the adversarial criminal system together with the inquisitorial criminal judicial system is applied in some special cases. The system is based on a two sided structure involving a prosecutor and the defense (Kirsten, 2002).

An inquisitorial criminal justice system is different from the adversarial criminal justice system. In this case, the court or the jury is involved in the investigation of the case. The court uses its apparatus to gather facts about the case as opposed to the adversarial criminal justice system where the court acts as an impartial referee between the advocates of the parties in the case. Inquisitorial judicial systems are common in countries that base their judicial systems on civil legal systems. However, countries that base their judicial systems on case law systems such as the United States and many countries in Europe use inquisitorial procedures in dealing with special cases such as minor traffic offences. Therefore, although the adversarial criminal systems are based on the case law system while the inquisitorial criminal justice system is based on the civil legal system. There differences are not related to the differences between case law systems and civil legal systems. Based on the characteristics of the inquisitorial criminal justice system, some scholars have found it more appropriate to call it non adversarial system (Glendon et al, 2008).

The inquisitorial criminal justice system is applied in the determination of the judicial procedures and not as substantive law. The system therefore dictates how the proceeding of the trial should be conducted but does not in any way determine which crimes the offender should be prosecuted for. The sentence imposed on the offender is also not determined by the inquisitorial system. This explains its application in civil legal system as opposed to case law system. However, the application of these systems varies from one culture to another where some courts assume that the trial procedures and the substantive law are interconnected and therefore fail to recognize the dichotomy. This has resulted in application of inquisitorial principle in adversarial criminal system where the jury may decide to look for facts by cross examining the witnesses. This also varies with cultures in different countries (Reichel, 2005).

International tribunals and criminal courts have been formed to try people suspected of having committed crimes against humanity. For many years, the proceedings of these international courts and tribunal such as the International Criminal Court in The Hague, Netherlands, have adopted the adversarial criminal justice systems. However, over the years, the traditions of the international tribunals have changed where they are adopting inquisitorial features in their systems. This has led to the need for professional juries, the adoption of pre trial examination and investigations aimed at obtaining facts on the case (Kirsten, 2002).

The basic feature of an adversarial criminal justice system is the fact that the accused person is not compelled by the system to witness in the trial process. This means that the accused person cannot be questioned by the jury presiding over the case or the prosecutor unless he or she chose to be questioned. However, if the accused chooses to testify during the proceeding, he or she is subjected to cross examination by the prosecutor and the defendants advocate. Moreover, the accused that chooses to testify may be guilty of perjury. However, the accused has the right to remain silent which protects him or her from any cross examination.

In inquisitorial criminal justice systems, the judge or the jury presiding over the case cooperates with the investigative agencies such as the police in gathering and preparation of evidence against the accused. Similar to the case of the adversarial proceeding, the jury or the judge is also concerned with the manner in which the parties involved in the trial present their case. The role of the judge in inquisitorial proceedings is to lead the questioning of the accused while the prosecutor and the advocates of the parties involved in the case have the right to ask supplementary questions. The judge or the jury influence reduces the contest between the opponents in the case which is also a basic feature in the adversarial proceedings. In both adversarial and inquisitorial proceedings, the basic assumption is that by using an impartial expert to preside over the proceedings is in the best interest of the parties involved in the proceeding. The expert in both systems who is the judge protects the witness or the accused from intimidation and any threat in the proceeding from the highly skilled and gifted attorneys representing their clients. Such intimidations are likely to tilt the balance in the proceeding leading to injustices. The presence of an impartial expert in the two systems also ensures that the evidence gathered is of high quality and reduces cases of arguments between the attorneys which are likely to lead into distraction of the court business and consequently waste of time (Shin, 1998).

A key feature of the inquisitorial criminal justice system which is commonly practiced in France among other countries is the investigating magistrate. It is the responsibility of the investigating magistrate to investigate and gather facts concerning the crime and the inquiries in the court. The magistrate is independent of any political influences and the prosecution presided over which is a basic strength of the French inquisitorial criminal justice system. The investigating magistrate acts a check and balance for the investigation process which also ensures that no dubious prosecutions are brought to the court (Shin, 1998).

The judge in the adversarial criminal justice system on the other hand ensures that the due process of the law is followed in the proceedings and that justice is done to all. The judge decides what evidence is required to settle a dispute but only when called upon by the counsel. The judge in this system cannot call for evidence in his or her own motion. However, depending on the traditions of the court, the judge presiding over a case in an adversarial system plays a major role in deciding when and what evidence should be admitted or rejected. This discretion has been opposed by some individuals due to his possibility of abuse and discriminative use by the presiding judge or jury (Kirsten, 2002).

The major distinction between the adversarial and inquisitorial criminal justice systems arises when the accused individual admits to have committed the offense. In the case of adversarial justice system, the controversy no longer exists in such cases and the court is expected to proceed and impose a sentence. However, in many jurisdictions, this does not happen and the defendant is expected to have allocution of his offence because cases of false confession are unacceptable in the law court. This is not the case under inquisitorial criminal system. In such system, the accused confession is treated as additional evidence that has been gathered by the court and the profession does not affect the proceeding of the trial and presentation of the case. The plea bargaining that is provided for in the adversarial justice system is virtually impossible or very difficult in inquisitional criminal judicial systems. Another major distinction is the rules related to evidences presented in the court. The rules of evidence in the adversarial justice system are very strict because it is assumed that the evidence is not presented to experts or the jurist but rather to the laymen. The hearsay rules are particularly strict in all adversarial systems when compared to inquisitorial justice systems. However, the lower tribunals may be more flexible especially in cases where the parties are not represented by attorneys (Kirsten, 2002).

The Islamic justice system is based on the Sheria law common among Islamic states and societies. The law is derived from the Quran, the Muslim Holy Book. The law is considered divine as opposed to the adversarial and inquisitorial systems which are considered to be man made. The Islamic justice system is the most commonly used system that is based on religion. However, in some cultures, the systems have been influenced by other civil justice systems (Mumisa, 2002).

The reasoning and the proceedings of the Islamic judicial system is basically the same as that employed in the adversarial and the inquisitorial justice systems. The proceeding in the justice systems presided over by Ulema, the equivalent of a jury in the adversarial and the inquisitorial justice systems. There are claims that the common law under which the justice systems in countries such as the United Kingdom and the United States originated from the Sheria law in Islamic societies. The English trust law and the English contact law have been closely associated with similar clauses in the Islamic law. Many people in the western world have had some misconception about Islamic justice systems where majority have assumed that the systems have no judges as for the case of the adversarial and inquisitorial systems. Moreover, many people believe that the Islamic justice systems are based on fixed punishments which are outdated. This is not the case because the systems have Qazi, the equivalent of a judge in common law and the system is very flexible where the judge is allowed to create options just as in the systems based on common law (Dien, 2004).

In conclusion, the adversarial, inquisitorial and the Islamic criminal justice systems are based on the same reasoning. However, there are some outstanding differences that characterize each of the system. The Islamic justice system is based on the Islamic religion while the adversarial system and the inquisitorial systems are based on common law. The investigatory law of the judge also inquisitorial system differentiates it from the adversarial system.