ADVERSARIAL SYSTEMS INQUISITORIAL SYSTEMS ... - AMINZ [PDF]

ADVERSARIAL SYSTEMS. INQUISITORIAL SYSTEMS. Binding force of case law. Previous decisions by higher courts binding on lo

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Idea Transcript


ADVERSARIAL SYSTEMS Binding force of case law

Previous decisions by higher courts binding on lower courts.

INQUISITORIAL SYSTEMS Little use of judicial precedent (case law). Judges are free to decide each case independently; therefore heavier reliance on comprehensive statutes/codes of law. And on the contract and the facts.

Investigation

Parties responsible for gathering evidence.

Examining phase

Judges often carry out or oversee the investigative phase.

Independent evaluation of the evidence Examining Judge plays active role in the collected at trial.

collection of evidence and interrogation of witnesses.

The trial

Lawyers present party version of events Main function of a trial to present case to trial and argue case before Judge and/or

Judge (or jury) and allow the lawyers to

jury. Witnesses give their evidence-in- present oral argument in public. No cross- and chief (orally) and may be cross-

re-examination of witnesses; witnesses still

examined by opposing counsel and re- questioned and challenged. examined.

Role of the trial Judge

Judge referees hearing and ensures case Judges direct the courtroom debate and to

and counsel

conducted in manner that observes due come to a final decision; assume role of process. Lawyers primarily responsible principal interrogator of witnesses. for introducing evidence and questioning witnesses.

Rules of evidence

Significant category of inadmissible

Rules around admissibility of evidence are

‘hearsay’ evidence. For court to

significantly more lenient. Evidence is

discover truth, it is essential that

admitted if the Judge decides it is relevant.

parties have opportunity to verify witness information.

Organisation of the courts

Adversarial systems have courts of general jurisdiction available to adjudicate a wide range of cases.

Civil law systems tend to have specialist courts (and specialist appeal courts) to deal with constitutional law, criminal law, administrative law, commercial law, and civil or private law.

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