Int’l Criminal Law
able. The prosecutor has discretion to decline to proceed with a prosecution if there is insufficient evidence, and can also choose to plea-bargain with the defense. Plea-bargaining allows the par- ties to negotiate a settlement of the dispute out- side of the courtroom, and involves the accused agreeing to plead guilty, usually to a lesser charge and/or for a reduced sentence. While conducting its investigation, unlike in the inquisitorial system, the prosecution is under no obligation to investi- gate exculpatory evidence, however, if exculpato- ry evidence comes to the knowledge of the pros- ecutor he is generally obliged to disclose it. At trial, both parties have complete discretion over what evidence it presents to the court in order to prove their case. Each party may cross-examine witnesses presented by the other side, and can call experts to refute evidence presented.
In the adversarial system, the judge has little in- put prior to the case coming to trial and has no advanced knowledge of the facts. Once the case reaches the courtroom, the parties inform the judge of the facts through their presentation of evidence. During the proceedings the judge, as umpire, must ensure fair play between the par- ties. In this capacity, the judge must ensure that the parties observe strict rules of evidence in or- der to ensure that nothing prejudicial reaches the ears of the jury, and settles disputes between the parties as to what evidence is admissible. The independent judge also ensures that stan- dards of due process are met and that the de- fense receives a fair trial.
The Inquisitorial System
The inquisitorial, or civil law, system does not take the form of a dispute, but rather is con- cerned with establishing the truth of the case before it through an official investigation. The process by which the inquisitorial system seeks the truth differs significantly from the adversarial process, and consequently the parties play dif- ferent roles.
The most significant difference is that the judge and the prosecutor are impartial, and work to- gether to conduct an official investigation of the matter. Generally, in a pure inquisitorial system, the prosecutor initiates an inquiry, which is then passed to the investigating judge so that she may pursue all pertinent lines of inquiry in order to determine the truth. The investigating judge is in charge of instructing what evidence to collect, and supervising that collection. The investigating judge also questions the accused and witnesses and then determines whether there is sufficient evidence to take a case to trial. There is a pre- sumption that a prosecution should always take place wherever sufficient evidence is available to prove the guilt of the accused.
In the inquisitorial system the defense is seen as the target of the investigation. The defense does not collect it’s own evidence, and instead the official investigator is obligated to gather both inculpatory and exculpatory evidence and must share with the defense anything that would disprove the guilt of the accused. The defense may request that specific evidence be collected or specific witnesses be interviewed. There is a preference for the submission of written evi- dence to the court, over the oral testimony of witnesses.
Unlike in the adversarial system, the judge is privy to a lot of information about the case prior to trial by virtue of being a part of the official in- vestigation. The inquisitorial system employs a particular procedural device, the dossier, to fa- cilitate the organization of this information. The dossier keeps a record of all procedural activity in the case and contains all of the information gathered during the investigation. The dossier then forms the basis of the trial itself, afford- ing the judge knowledge of the facts and of evidence prior to trial. This advanced knowledge allows the judge to effectively conduct the trial and to determine which witnesses to hear and which evidence to see.
ILSA Quarterly » volume 22 » issue 3 » February 2014
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