The inquisitorial system is an alternative to the adversary system in which the court is actively involved in determining the facts of the case and the conduct of the trial. It is a system based on Roman law which is used today in many European countries. The inquisitorial system exists in many forms, but there are some common traits.
Judges take an active role in cases that come before them. They investigate the case, define legal issues and, with police, gather evidence. They can call and question witnesses, ensuring that court room procedures are correctly followed before determining a verdict or outcome.
Parties to a case have a diminished role, as they are not in complete control of their case.
Due to the increased role of the judge, legal representation often plays a minor part in court proceedings. Legal representation may assist the judge, however, to find the truth. They can also question witnesses and address court in assisting the judge to discover the truth.
There is a lesser emphasis on strict rules of evidence and procedure than in the adversary system due to the emphasis on the truth. What constitutes admissible or inadmissible evidence is flexible, depending on the evidence presented. For example, hearsay evidence can be acceptable, there is greater reliance on written evidence and witnesses can tell their accounts uninterrupted by questions.
Due to the judge’s role, there is no strict burden of proof with any party. Rather, it is the judge’s responsibility to find the truth.
In French cases, there are two judges. The “Juge d’instruction” (investigating judge) conducts the investigation, supervises police, and finds and questions subjects. They also compile a “dossier” (documentary record) to present to the “residing judge”. The residing judge will oversee the trial, and call and question witnesses.
In Germany, there is a panel of three to five judges who sit and are presented with evidence. “Lay judges” will assist the panel of judges in coming to a verdict and handing down a sentence. Judges can call and question witnesses. The prosecutor is known as the “State Attorney” and sits on the same level as the judges, while the accused and their compulsory legal representation sit on a lower level. The State Attorney and defence counsel are able to give a closing address to court. There is no strict doctrine of precedent, and some extra types of evidence, such as hearsay, are admissible. The standard of proof in both criminal and civil matters is beyond reasonable doubt.
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