Inquisitorial System

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Inquisitorial System

A method of legal practice in which the judge endeavors to discover facts while simultaneously representing the interests of the state in a trial.

The inquisitorial system can be defined by comparison with the adversarial, or accusatorial, system used in the United States and Great Britain. In the Adversary System, two or more opposing parties gather evidence and present the evidence, and their arguments, to a judge or jury. The judge or jury knows nothing of the litigation until the parties present their cases to the decision maker. The defendant in a criminal trial is not required to testify.

In the inquisitorial system, the presiding judge is not a passive recipient of information. Rather, the presiding judge is primarily responsible for supervising the gathering of the evidence necessary to resolve the case. He or she actively steers the search for evidence and questions the witnesses, including the respondent or defendant. Attorneys play a more passive role, suggesting routes of inquiry for the presiding judge and following the judge's questioning with questioning of their own. Attorney questioning is often brief because the judge tries to ask all relevant questions.

The goal of both the adversarial system and the inquisitorial system is to find the truth. But the adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it, whereas the inquisitorial system seeks the truth by questioning those most familiar with the events in dispute. The adversarial system places a premium on the individual rights of the accused, whereas the inquisitorial system places the rights of the accused secondary to the search for truth.

The inquisitorial system was first developed by the Catholic Church during the medieval period. The ecclesiastical courts in thirteenth-century England adopted the method of adjudication by requiring witnesses and defendants to take an inquisitorial oath administered by the judge, who then questioned the witnesses. In an inquisitorial oath, the witness swore to truthfully answer all questions asked of him or her. The system flourished in England into the sixteenth century, when it became infamous for its use in the Court of the Star Chamber, a court reserved for complex, contested cases. Under the reign of King Henry VIII, the power of the Star Chamber was expanded, and the court used torture to compel the taking of the inquisitorial oath. The Star Chamber was eventually eliminated as repugnant to basic liberty, and England gradually moved toward an adversarial system.

After the French Revolution, a more refined version of the inquisitorial system developed in France and Germany. From there it spread to the rest of continental Europe and to many African, South American, and Asian countries. The inquisitorial system is now more widely used than the adversarial system. Some countries, such as Italy, use a blend of adversarial and inquisitorial elements in their court system.

The court procedures in an inquisitorial system vary from country to country. Most inquisitorial systems provide a full review of a case by an appeals court. In civil trials under either system of justice, the defendant, or respondent, may be required to testify. The most striking differences between the two systems can be found in criminal trials.

In most inquisitorial systems, a criminal defendant does not have to answer questions about the crime itself but may be required to answer all other questions at trial. Many of these other questions concern the defendant's history and would be considered irrelevant and inadmissible in an adversarial system.

A criminal defendant in an inquisitorial system is the first to testify. The defendant is allowed to see the government's case before testifying, and is usually eager to give her or his side of the story. In an adversarial system, the defendant is not required to testify and is not entitled to a complete examination of the government's case.

A criminal defendant is not presumed guilty in an inquisitorial system. Nevertheless, since a case would not be brought against a defendant unless there is evidence indicating guilt, the system does not require the Presumption of Innocence that is fundamental to the adversarial system.

A trial in an inquisitorial system may last for months as the presiding judge gathers evidence in a series of hearings.

The decision in an inquisitorial criminal trial is made by the collective vote of a certain number of professional judges and a small group of lay assessors (persons selected at random from the population). Neither the prosecution nor the defendant has an opportunity to question the lay assessors for bias. Generally, the judges vote after the lay assessors vote, so that they do not influence the conclusions of the lay assessors. A two-thirds majority is usually required to convict a criminal defendant, whereas a unanimous verdict is the norm in an adversarial system.

The inquisitorial system does not protect criminal defendants as much as the adversarial system. On the other hand, prosecutors in the inquisitorial system do not have a personal incentive to win convictions for political gain, which can motivate prosecutors in an adversarial system. Most scholars agree that the two systems generally reach the same results by different means.

Further readings

Moskovitz, Myron. 1995. "The O.J. Inquisition: A United States Encounter with Continental Criminal Justice." Vanderbilt Journal of Transnational Law 28.

Sward, Ellen E. 1989. "Values, Ideology, and the Evolution of the Adversary System." Indiana Law Journal 64.


Criminal Procedure; Due Process of Law.

References in periodicals archive ?
For example, the author refers to the establishment of the inquisitorial tribunal at Cartagena de Indias in 1610 as connected to its status as the capital of the Viceroyalty of New Granada, which was not established until the eighteenth century.
He stated that major difference involved in inquisitorial proceedings is that the court conducting the proceedings is not supposed to be a neutral, distant umpire but instead, an inquiry into facts may be conducted by the judge himself.
De esta manera, la imagen monolitica que pretendio transmitir el discurso inquisitorial sobre los "ideales modelicos" de sus funcionarios--y que fue tomado por la historiografia mas tradicional--, se pone en cuestion cuando Pena presenta las disconformidades de los contemporaneos hombres de la Iglesia con las tareas que realizaban ciertos calificadores.
The book concludes with four examples of trials that exhibited unusual inquisitorial procedures.
2) Inquisitorial and accusation systems of trial, Law Teacher (2009), http://www.
Centrada en la figura del comisario del Santo Oficio de la ciudad de Zacatecas (Nueva Espana) durante el siglo xviii, esta investigacion se hace eco de una sensibilidad reciente de la historiografia mexicana (compartida, por otra parte, por las historiografias brasilena y portuguesa), de transferir el analisis del fenomeno inquisitorial de las cupulas o esferas decisorias hacia un enfoque local, que se concentra en las relaciones sociales mantenidas entre el representante del tribunal y las elites de la sociedad en la que aquel se inserta.
Prosecutorial Bureaucracy and Expertise in the Tug and Pull of Adversarial and Inquisitorial Models: Disclosure
Chapter 2, 'He May be a Patron and Receiver of Heretics: Adapting the Principles of Prosecution,' illustrates how the new manuals on inquisitorial law adapted the past encounters with heresy to the new context of the Protestant Reformation.
At the core of her study is examination of manuals written to adapt the medieval tactics of the Catholic Church's inquisitorial prosecution to the religious upheavals of the 16th century.
s chapter on Cathars, for instance, neglects recent scholarship that suggests that "Cathars" were more the construct of the inquisitorial imagination than an organized body of dissenting laity.
The perception in some courts seems to be that tribunals are unfettered by the constraints of the adversarial system and, with our inquisitorial powers, have leapt free of court's inability to mould and shape the case to its own ends as part of a search for the truth.