Comparisons With The Inquisitorial Approach
In many jurisdictions the approaches of each system are often formal differences in the way cases are reviewed. It is questionable that the results would be different if cases were conducted under the differing approaches; in fact no statistics exist that can show whether or not these systems would come to the same results. However, these approaches are often a matter of national pride and there are opinions amongst jurists about the merits of the differing approaches and their drawbacks as well.
Proponents of the adversarial system often argue that the system is more fair and less prone to abuse than the inquisitional approach, because it allows less room for the state to be biased against the defendant. It also allows most private litigants to settle their disputes in an amicable manner through discovery and pre-trial settlements in which non-contested facts are agreed upon and not dealt with during the trial process.
In addition, adversarial procedure defenders argue that the inquisitorial court systems are overly institutionalized and removed from the average citizen. The common law trial lawyer has ample opportunity to uncover the truth in a laboratory called the courtroom. Most cases that go to trial are carefully prepared through a discovery process that aids in the review of evidence and testimony before it is presented to judge or jury. The lawyers involved have a very good idea of the scope of agreement and disagreement of the issues to present at trial which develops much in the same way as the role of investigative judges.
Proponents of inquisitorial justice dispute these points. They point out that most cases in adversarial systems are actually resolved by plea bargain and settlement. Plea bargain as a system does not exist in an inquisitorial system. Most legal cases in adversarial systems do not go to trial; this can lead to great injustice when the defendant has an unskilled or overworked attorney, which is likely to be the case when the defendant is poor. In addition, proponents of inquisitorial systems argue that the plea bargain system causes the participants within the system to act in perverse ways, in that it encourages prosecutors to bring charges far in excess of what is warranted and defendants to plead guilty even when they believe that they are not.
Read more about this topic: Adversarial System
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