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First of all, this is my
longest post yet! It is very heavy in theory and focuses on the benefits of the
inquisitorial system. If you’d prefer a short read, please scroll down to the conclusion.
Once again I’d love to read your commentary.
In Australia as a country that uses the common law system, we utilise the adversary system in our
courts.
1.
A brief overview of the
adversary system
The adversary system is a means of ‘searching for truth’
amongst a complex array of fact and law. It
relies upon a battle ensuing between two parties; prosecution and defence.
A)
The prosecution
In criminal cases,
this is the most critical element of the trial. The prosecution carries the
burden of proof or the responsibility to prove guilt. However the prosecution
cannot merely point fingers at the accused, they must also utilise admissible
evidence to prove that the defendant is
guilty beyond a reasonable doubt.
B)
The defence
The defence party must maintain
that the individual is innocent until proven guilty. This pop culture reference
also refers to the most essential element of the adversary system – no one must
be assumed guilty.
The judge in the adversary system
acts as a mere guide for the jury or an impartial scale of fact and law. Unlike
the inquisitorial system, in the adversary system
the judge must disengage their emotional considerations to provide a more business-like determination
of legal fact.
Judges only meet the case when the
trial begins and must have no interaction with it at any previous stage.
The adversary system works for
both criminal and civil trials but only indictable offences (ones that are severe like murder, larceny, fraud) will
receive the benefit of a jury.
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Juries
Juries are a collection of the
community which are between 15-12 in number. They are selected from the
electoral roll (the list of individuals who are eligible to vote and then
allotted to different trials. For those interested I have summarised the jury
process below.
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The Jury Process
1. 6000 names are selected from the electoral role. All of these
names will be of people aged between 18 and 75 years old.
2. The first disqualification occurs where there is an individual
who is on the electoral role but does not have an adequate physical or mental
state to carry out the important task of being a juror.
3. Next persons who have an
insufficient command of the English language or other reasonable prohibitive
quality, such as being a member of the judiciary, are ineligible.
4. This usually narrows the list down to 4000 applicants in which
some may be disqualified. Disqualification will occur when individuals have
received a term of imprisonment,
community service or detention. The table below
indicates how this operates:
Sentence length
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Type
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Time
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Life or maximum sentence was life
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Imprisonment
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At any time between the ages of 18 and 75
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Exceeding two years
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Imprisonment
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At any time between the ages of 18 and 75
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A term
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Detention in institution
for young offenders
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Probation
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Parole
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Within ten years immediately preceding the
selection
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A conviction of an offence punishable by
imprisonment
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Imprisonment
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Within five years immediately proceeding the selection
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Licence
disqualified for period exceeding two months
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N/A
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Within five years immediately proceeding the selection
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Been bound by a good behaviour bond
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N/A
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Within five years immediately preceding the
selection
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Been charged with
an offence punishable by imprisonment but charge
is not yet determined
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N/A
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Within five years immediately proceeding the selection
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While this measure may appear discriminative, the actual intention is to
minimise any unfair biases that may have been built while the individual is in
prison or form of detention.
Arguably while these members of
society are biassed they remain to be
valuable parts of our society as a whole. Therefore the question remains, do we
have the right to reject their participation in society?
5. Members of the armed forces will then be exempted under the Jury Exemption Act 1965 (Cth)
6. Individuals who have membership as either a conscientious
objector or member of a religious order will then be excused.
7. Individuals who are not ineligible,
disqualified or excused may write to apply for written excuse or delay for
their service. They must write to the sheriff’s office who primarily controls
this area. Some valid reasons for deferral include:
Ø Pregnancy
Ø Illness
Ø Death of a loved one
Ø Being self-employed
8. Juries are then sent to the courts and are allotted in 25 member
groups to different trials
9. From there a process called empanelment begins in which names of
potential jurors are pulled from a ballot box.
They can be
rejected in one of two ways
a) Pre-emptive challenge
A preemptory
challenge is where the prosecution or defence can dispute the selection of a
potential juror by calling ‘challenge.’ At this point,
the individual must return to their seat quietly and cannot contest the decision.
However, these are limited to
three challenges per side.
b) Challenge for cause
These challenges are unlimited for
both sides, but their effect is up to the discretion of the judge. For example, the prosecution may object to a juror because they attended the same school as the
accused and would, therefore, be unfairly
biassed.
The judge may choose to accept or
reject this reasoning. As a general rule, challenges for cause are seldom
successful.
Once the jury has been empanelled the trial can begin.
2. The inquisitorial v adversary processes
The adversary system is greatly
advantageous to the rich and taxing upon governments. Those who can afford a
higher quality level of representation often
fair better than they would under the inquisitorial system.
·
The inquisitorial system;
defined
The inquisitorial system is used
in countries that don’t rely on the common law. While elements of the common
law system (precedents etc.) exist within
the inquisitorial system, the primary
difference is that legal representation is less important as the judge takes on
a pivotal role in collecting evidence.
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Pretrial
In the pre-trial stage of the adversary system,
the police do the majority of the work. They investigate and arrest the
suspect(s) and then collect evidence. Police must have a warrant to hold the accused for longer than four hours otherwise
it infringes on civil liberties. This is taxing on the government as it primarily increases the hourly pay per
policeperson due to additional responsibilities and the time pressure.
Deadlines are formed by the case management requirements and by the four-hour questioning rule. Without legal
representation or knowledge, the accused
may feel pressured into providing false information to satisfy police.
In the inquisitorial system, the investigation process is largely undertaken
by prosecutors with the assistance of the police.
There is the ability to adjust deadlines to
remove time pressures, particularly when
dealing with hostile persons. A judge will also oversee
this investigation adding extra protection for the rights of the accused.
The judge will then review all
evidence and interrogate witnesses. The
input of an experienced judge in this phase means that there is the quick and efficient use of time as any doubtful
evidence would quickly be found and rejected. This reduces the amount of time
spent in court and clears the way for
more trials.
The adversary system replaces this
investigating judge with a preliminary hearing, but this is done in court and
takes valuable time away from other trials.
It is also not as effective as it places stress on the accused to find proper legal representation and face their
accusers.
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Trial stage
The main difference in the trial stage is that the trial in the
inquisitorial system is far more focused. Witnesses are not compulsorily cross-examined in the inquisitorial system but
either side will ask questions of the witness.
This is because the evidence has
been made available in advance to both parties and they have disputed the
evidence already; allowing the trial to be simply about an argument put forward
by the trial judge.
In the adversary system, the primary intention of the trial is
to dispute the evidence of both sides. Often inexperienced lawyers will lose
because of their technical ability rather than the evidence itself. Witnesses are often put under pressure in the heat of the moment leaving some
concerns about the veracity of proof.
Additionally, witnesses may be
encouraged to reveal information that they had previously concealed because of
the invasive nature of the cross
examination.
Ø Roles of the judge
In the adversary system, the judge is more like an overworked
parent than an investigator. They watch the prosecution and defence to ensure
their behaviour is reasonable and the evidence is admissible. Their part in the
post-trial process is merely to direct
the jury in how to evaluate the evidence presented and to determine an
appropriate sentence through a sentencing
hearing.
In the inquisitorial system the
judge underpins the entire trial. For, they are the primary investigators and will interrogate witnesses
during the trial. They are also required to come to a full and final conclusion
at the end of the trial.
Ø Roles of the jury
In the adversary system the costly
process of forming a jury is used for every civil penalty provision and serious
criminal offence trial. In Australia if the offence is a minor indictable
offence or higher they have the right to trial by jury.
This process is also a poor
mockery of active democracy as juries primarily consist of English speaking,
middle class Australians. It is obvious in the process outlined above that the
system is not supportive of language, culture or other special difference in
the process. The disqualification process also rules out a portion of the
community that would have the greatest insight into the motivations and reasons
of accused.
The adversary jury system is far
too restrictive to propose itself to be a fair cross section of the community.
In the inquisitorial system juries
are saved for the most serious of cases and they work with the judge(s) to
determine the decision. This advantages the trial because it prevents the jury
from using inconclusive or unfair evidence to determine their decision. Judges
can also be involved in the discussion to put forward their valuable experience
and legal opinion.
Ø Evidence
In the adversary system the rules
of evidence are a focal point of the trial. Objections and over rulings are
often characterised by American pop-culture as being a rambunctious exercise of
the court room. The reality is often far blander. Yet, the evidence rules
clearly protect the rights of the individual not to be unfairly discriminated
against.
In this the inquisitorial system
falls, there are no strict procedural rules of evidence and the trial judge –and
lay judges if used – hear everything. This is greatly disadvantageous because
hearsay evidence, which is infamous for inaccuracy can now be dragged through
the court room too.
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Conclusion
In reality, this article was
biased – and I’m not ashamed to admit it. But it wasn’t a pointless exercise. A
lot of countries that use the adversary system have a large unbalanced
perspective towards the inquisitorial system.
While the adversary system has
allowed common law countries to operate harmoniously for decades, it is not the
only system for legal justice. The inquisitorial system is often dismissed,
particularly by Australian articles and textbooks.
I’d recommend you all take on
board that –while Australia may not need to overhaul the court system, the
current adversary system is not perfect. It creates a sense of competition that
can be disadvantageous towards the search for truth. The inquisitorial system
has no such competitive mindset and in fact legal representation is far less
important than in the adversary system.
The non-requirement for expensive
representation equalises the dispute and puts justice before wealth, something that
the adversary system often fails to do.
Given the stress on today’s courts
and the often financially and emotionally fatal outcomes of the adversary
system would Australia not be wise to consider becoming the first
inquisitorial-adversary hybrid?
Our little country could certainly
benefit from having the best of both systems.
The Underage Lawyer
