An inquisitorial system is a legal process where part of the court, if not the entire court, is actively involved in an investigation of the facts of a case. It is different from an adversarial system where the role of the court is to be an impartial observer, referee, or decision-maker while listening to prosecutors and defendants. It is a system that is used primarily where a civil legal system is in place for a country instead of a common law system.
Under an inquisitorial system, the trial judges become inquisitors who participate actively in public inquiries by questioning defendants, prosecutors, and witnesses. These judges can even order specific items of evidence be examined if they feel that the presentation by any party in the case is inadequate.
As with any other legal system that is implemented by a society, there are specific pros and cons to examine when looking at an inquisitorial system for civil and criminal justice. These are the crucial points to review.
List of the Pros of an Inquisitorial System
1. It reduces the advantages of wealth within the justice system.
If your society engages in an adversarial system of justice, then the quality of your outcome is dependent upon the experience of your lawyer. The people who have the most money in adversarial systems typically experience a different outcome when compared to those who must use public attorneys or represent themselves during a proceeding. The inquisitorial system eliminates this benefit because the judge(s) in the case have the option to question and investigate just as law enforcement and the lawyers do during the proceedings.
The examples of wealthy defendants receiving preferred sentencing in the United States are too numerous to list. Adversarial systems often create two subcategories: one for the rich and the other for the poor. 60% of all people in the U.S. prison system right now are an ethnic or racial minority, with the vast majority of them coming from households living below the poverty line.
2. It reduces judgments against people which are driven be emotions.
According to a 2013 report published by Pacific Standard Magazine, jurors who experience moral outrage on some level during a case are more likely to convict a defendant compared to those who do not experience this emotional reaction. Under an adversarial system of justice, the goal of the prosecutor is to elicit this response when they present a case because it increases the likelihood of a successful outcome. Defendants attempt to temper this response to have a jury decide in their favor.
With an inquisitorial system of justice, there is another line of defense against this emotional decision-making process. The judge(s) can help to determine the facts of a case so that decisions are based on logic instead of feelings.
3. It reduces bias within the system of justice.
When there are more people involved with a legal case, then there are a variety of perspectives that are brought in to review the circumstances that occurred. This process eliminates some of the unintentional bias that can occur in adversarial systems. Each party contributes their opinion and observation within an inquisitorial system, allowing for the facts to decide what occurs instead of biased opinions, passionate speeches, or a general dislike of the person who is accused of something.
The adversarial system in the United States puts the lifetime risk of a black man going to prison at 1 in 3. For Latino men, the odds are 1 in 6. White men face a 1 in 17 risk. For women, the disparity is even higher. About 1 in every 18 black women will experience imprisonment at least once compared to 1 in every 111 white women.
4. It is a system which does not exempt anyone.
An inquisitorial system makes sure that no one receives any special treatment. There are zero exemptions offered under this design. Everyone gets asked the same questions when they have a case presented before the court, whether they are homeless or the President of the United States. The truth of each answer is then verified through rigorous work to determine the actual events that happened, and if there are any civil or criminal liabilities which may apply to the situation.
The adversarial system in the United States does not offer this level of clarity. In the U.S., the Office of Legal Counsel argues that the impeachment power of Congress is the only way to handle a President who operates outside of the law.
5. It is a system which features independent review.
One of the most unique aspects of the inquisitorial system is that each group that investigates an issue will work independently to achieve an outcome of truth. Although there can be cooperation amongst the various individuals working a case, they are separate teams working toward an outcome by themselves instead of together as a group. Some systems may require complete agreement in the outcome from all of the groups working a case before a case proceeds any further.
6. It must resolve all factual uncertainties before coming to a resolution.
The inquisitorial system is a system of continuous investigation that is conducted first by the police, and then more extensively by a magistrate or judge who serves as the lead investigator in many systems. Because the judge(s) are placed in this role, they are tasked by the government to exhaust every effort to settle any factual uncertainties which may exist in a case. There must be sufficient evidence of guilt to proceed. Although in some cases this need may lead to pressure on the defendant to confess, this system seeks to minimize manipulation to create specific outcomes.
7. It allows the judicial system to play a substantial role in the proceedings.
One of the most significant advantages of the inquisitorial system is that the court moves from being an impartial observer to an active participant. Instead of trying to weigh the validity of both arguments or place the issue in the hands of a jury alone, the focus is on achieving a justifiable outcome that fits the facts of the case. Even if there are minor procedural errors which occur during the case, they can be ignored if the purpose of achieving justice is the final outcome.
8. It makes a distortion of evidence easier to detect.
An inquisitorial system makes it much easier for misrepresentations, exaggerations, or other forms of evidentiary distortion to be detected because there are additional investigatory groups involved in the proceeding. The court can find these dubious practices and then dismiss them, allowing everyone involved to look at the facts first. There is no reason to look for “creative arguments” because the focus remains solely on the facts involved during the incident in question. That can make it much easier for all parties (including the defendant) to find a fair outcome.
9. It balances out the availability of resources.
In the typical adversarial setup, the prosecuting parties have access to a full suite of government resources and services. They represent society at some level, which means the monetary and research resources are usually much greater than what the average defendant would be able to put together. Although some defense teams can be competitive outside of the inquisitorial system, this option makes it possible for all evidence to be considered, even if it favors the defendant, because each party is tasked to be factfinders instead of argument makers.
10. It allows defendants to tell their story.
Witnesses in an inquisitorial system can tell their story without the need to respond to adversarial questions that may try to discredit their character. The goal of each story is to shed light on an additional set of facts that investigators can review to determine an accurate outcome occurs in each case. Although more people can be contacted by the court and law enforcement because of where they exist on the periphery of a case, the overall goal to achieve an accurate result can often outweigh the potential disadvantages which exist.
List of the Cons of an Inquisitorial System
1. It does not completely remove the concept of bias out of the justice system.
Although the purpose of an inquisitorial system is to remove as much bias as possible from the court, justice does not always occur under this structure. Certain communities may have a widespread feeling, belief, or fear of specific cultures, ethnicities, or behaviors that lead them to make biased decisions as a group. If the prosecutor and the judge feel the same way about a defendant, then both may do everything in their power to secure a conviction based on their mutual distaste for the circumstances involved.
2. It lengthens the time required to obtain an outcome in the justice system.
Because the court becomes involved with the investigation of the case in an inquisitorial system, the amount of time required to reach an outcome can expand significantly. Adversarial systems can sometimes take several years to reach a conclusion as it is. There are cases under this system which take more than a decade – and even then, there may be appeals and motions permitted that extend it even further.
3. It reduces the opportunities available for someone to defend themselves.
Because there are two trained, professional groups who are reviewing the circumstances of every case (and a third if prosecutors are involved), it becomes almost impossible for an untrained individual to defend themselves under an inquisitorial system as they could in an adversarial system. It works against them because there are 2-3 different perspectives looking at an incident, while they must rely on their own circumstances.
4. It is a system where the truth is already decided before the trial.
Under many inquisitorial systems, the investigation is regarded with the same weight as an adversarial system regards a trial by jury. All of the parties which look into an incident are usually state-sponsored (even the defendant’s representation), which means there is not as much independence available to someone who must stand before the court. That means people still investigate with their preconceived notions, only with the option to create a presumption of guilt before a defendant ever receives a hearing.
5. It requires investigators to ask the right questions to achieve a fair outcome.
The quality of the justice system is heavily dependent upon the experience and perspective of each investigating party within an inquisitorial system. People must want to get to the truth to reach a fair outcome. There are many times when questions are not asked when they should be, creating a circumstance where the only effort is to reach a statement of innocence or guilt instead of trying to determine the facts of a case.
6. It does not provide a right to silence like an adversarial system.
The Miranda Warning in the United States offers a clear and direct set of rights that are communicated to a potential defendant. The first is that the individual has the right to remain silent because anything a person says can and will be used against them in a court of law. Under an inquisitorial system, this right does not exist. If you are accused of something, then every component of the justice system must work to secure a just outcome. That means there is the possibility of having someone convict themselves based on unintended statements if they are deemed by the investigatory group as being factual.
7. It can place the final judgment in the hands of a single individual.
Judge Judy is an excellent example of what an inquisitorial system of justice looks like. She questions witnesses on her own, often without any lawyers present in her TV courtroom. The plaintiff and defendant both submit briefs stating their side of the case, then she questions each party to determine if someone is telling the truth or not. This process can place the final judgment of a defendant in the hands of one person, which means their bias can influence the final decision.
8. It requires people to trust in the government to achieve a just result.
When you turn the justice system into a detached, neutral process instead of an adversarial one, then you do begin to remove some of the inequalities that occur in society. The only problem is that the way to achieve this benefit is to have everyone trust that the government has their needs set as a top priority. If there is any distrust by the general population, then this system of justice will never be seen as an entirely beneficial process. That is why it tends to exist on TV in the United States instead of in the general system of criminal justice.
9. It is a system which can be heavily influenced by corruption.
Some people refer to an inquisitorial system as a “kangaroo court” because the process of a trial can be present for show only. Investigators can go into a case with a predetermined outcome based on pressures received from the government, state, or other influential groups who want specific actions to be taken against an individual. This process can speed up the time of the investigation dramatically as well, sometimes securing convictions in days when the there is a specific verdict desired by the overall group.
The pros and cons of an inquisitorial system show us that when it is implemented correctly, there is less manipulation of the system because everyone is treated fairly. It also requires an objective approach by all parties, including the court, to create an outcome which is representative of the facts in the case. Although the goal is to focus on the truth, this system makes it possible for investigators to create their own definition of it at the expense of the defendant.
Natalie Regoli is a child of God, devoted wife, and mother of two boys. She has a Masters Degree in Law from The University of Texas. Natalie has been published in several national journals and has been practicing law for 18 years.