1. The Inquisitorial System of Trial
And a comparison with Adversary System of Trial

2. THE INQUISITORIAL SYSTEM
Different countries use different methods of trial to resolve legal disputes. In Australia we use the adversary system of trial; however, many other countries use the inquisitorial system of trial in which the judge plays a more active role in finding the facts and establishing the truth.
THE INQUISITORIAL SYSTEM

4. Major features of the inquisitorial system
The inquisitorial system of trial is used in many countries around the world including throughout Europe (most notably in France and Germany), Asia and South America. It is based on a system of law developed centuries ago by the Romans called Roman civil law. In contrast, the adversary system of trial was developed by the British and based on their common law system. Many different versions of the inquisitorial system are in operation; however, the main common features of the inquisitorial system of trial are the:
adjudicator (judge or judges) plays a significant role in gathering the evidence for the trial, finding the facts in dispute, ascertaining the truth and determining the outcome of the case
rules of evidence and procedure are less formal than those in the adversary system of trial; for example, there is a greater reliance on written evidence, a greater range of evidence can be presented to the court and witnesses are able to give their testimony in their own words.
Major features of the inquisitorial system

5. FEATURES OF THE INQUISITORIAL SYSTEM

6. Role of the judge Role of the judge takes far more active role in case
Often involved in pre-trial procedures – gathering and production of evidence
Judge can question witnesses and raise further factual knowledge
Emphasis is on finding the truth
Better as uses expertise of judge, however, not impartial or independent
Role of the judge

7. Rules of evidence and procedure
Under the inquisitorial system, there are no strict rules of evidence and procedure as exists in the adversary system of trial
Extensive pre-trial procedures
New evidence or material can be brought in by judges at anytime
Inadmissible evidence under adversary system allowed in Inquisitorial system is admissible - such as prior convictions
Witnesses free to describe story in own words
Questioning of witnesses undertaken by judge
Rules of evidence and procedure

8. Role of the parties and legal representatives
Parties in Inquisitorial system are not in complete control of case this is left to judge
Judge gathers evidence and court directs the parties in presenting arguments and witnesses
Some parties may be dissatisfied having their case controlled by third party
Role of the parties and legal representatives

9. The burden/standard of proof
There is no formal burden of proof on any party as judge is responsible for presenting evidence and determining truth
The burden/standard of proof

10. Comparison of the inquisitorial and adversary systems of trial

11. Feature
Adversary system
Inquisitorial system
Role of the judge
The judge ensures the strict rules of evidence and procedure are followed throughout the trial and determines questions of law.
The judge remains independent and does not intervene in, or assist either party, with the preparation or presentation of their case.
The judge (judges) controls the trial process and plays a significant role in ascertaining the truth and determining the outcome of the case (including being involved in investigating the case, gathering evidence and questioning witnesses).
The rules of evidence and procedure
Strict rules of evidence and procedure ensure each party has an equal opportunity to present their case; for example, certain types of evidence, including hearsay and prior convictions, are generally not permitted and witnesses are required to respond to questions put to them by legal representatives.
There is a heavy reliance upon verbal evidence, allowing the authenticity of evidence to be tested.
No strict rules of evidence and procedure exist, allowing a greater range of evidence to be presented to the court and the judges to determine its relevance and weight.
Witnesses are able to give their testimony in their own words.
There is a heavy reliance on written evidence which saves time, stress and costs associated with verbal examination of witnesses.

12. Feature
Adversary system
Inquisitorial system
The role of the parties and legal representatives
Each party is in control of the preparation and presentation of their case and, acting in self-interest, should present the strongest evidence and argument to win the case.
The strict rules of evidence and procedure necessitate engaging experienced legal representatives to prepare and present the case in the most effective manner.
It is the judge's responsibility to investigate and conduct the case before the court, so the parties are not in complete control of their case and there is less reliance on legal representatives (whose role is to assist the parties and the court in ascertaining the truth, rather than controlling the evidence presented to the court).
The burden and standard of proof
The burden of proof rests with the party initiating the action and making the allegations.
While the burden of proof differs between different countries, generally the burden of proof is not exclusively on either party as it is the responsibility of the judge to seek the evidence, establish the facts and ascertain the truth

13. 7.5 TEST your understanding APPLY your understanding
1.) Explain the role of the judge (judges) in the inquisitorial system of trial and suggest one strength and one weakness associated with their role.
2.) Explain three key differences between the ways in which evidence is presented in the inquisitorial system compared to the adversary system of trial.
4.)State whether the inquisitorial or adversary system of trial is most likely used in the following scenarios:
the judge decides which witnesses to call
strict rules of evidence and procedure must be followed in the trial
in a criminal trial the prosecution is always responsible for proving the guilt of the accused
the judge is involved in gathering evidence during the pre-trial period
there is a heavy reliance on written, rather than verbal, evidence.
5.) Explain two main differences between the adversary system of trial and the inquisitorial system.
7.5 TEST your understanding APPLY your understanding

14. Compare and contrast the role of the judge in the adversary system to the role of the judge in the inquisitorial system of trial. Suggest one reform to the role of the judge in the adversary system (4 marks)
Exam question

15. Both the adversary system of trial and the inquisitorial system of trial have a judge present that oversees the case, however, their roles are very different. The role of the adjudicator in the adversary system is to remain totally impartial and independent to both parties, taking no part in questioning witnesses and is able to help neither party. Whereas the the judge in the inquisitorial system plays a far more active role, questioning witnesses, collecting evidence and directing parties. Their role is to ascertain the truth. One reform possible for the adversary system is to make the judge more like that in the inquisitorial system, that is, more active. They could question witnesses and be able to assist parties who may be disadvantaged, allowing for audi alteram partem.

16. Mason is being tried for Murder
Mason is being tried for Murder. How would this trial play out in the Adversary system? How would it play out in the Inquisitorial system? In your answer, suggest one possible reform to the Adversary system of trial

17. You, yourself as much as anybody in the entire universe, deserve your love and affection
Rhys

18. To create a visual representation of the similarities and differences of the Iinquisitorial system of trial and the Adversary system of trial
Your task