Scribd
Upload
48 views2 pages

Post 3

The document discusses the differences between adversarial and inquisitorial justice systems. The adversarial system aims to have two parties prove their own truths, but this may not reveal the actual truth. It focuses more on victories than reconstructing reality. The inquisitorial system uses a more thorough investigatory process through stages and written testimony to avoid miscarriages of justice and better protect victims' rights. Adopting some inquisitorial methods into adversarial systems, like allowing recorded victim reports and written testimony, could help serve vulnerable victims by sparing them aggressive cross-examination. The document questions whether providing more closure through crime control or due process is better.

Uploaded by

lilredark
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
48 views2 pages

Post 3

The document discusses the differences between adversarial and inquisitorial justice systems. The adversarial system aims to have two parties prove their own truths, but this may not reveal the actual truth. It focuses more on victories than reconstructing reality. The inquisitorial system uses a more thorough investigatory process through stages and written testimony to avoid miscarriages of justice and better protect victims' rights. Adopting some inquisitorial methods into adversarial systems, like allowing recorded victim reports and written testimony, could help serve vulnerable victims by sparing them aggressive cross-examination. The document questions whether providing more closure through crime control or due process is better.

Uploaded by

lilredark
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 2

Means towards truth and human rights in the adversarial system

In a process that is combative and two parties look to prove their own ‘truth’, or by
contrary to hide it (Ellison, 1997: 13), it is less probable that the trialed truth will come out of
this contest, as the adversarial system assumes it will (Ferguson, 2017: 6). It is most likely
that one of the sides will seem more credible than the other (Ellison, 1997: 24), considering
the evidence that it successfully provides. The adversarial process based on testimonies and
evidence it relies on underlined facts and pursues to settle a conflict rather than to reconstruct
the reality of the facts. Criticized to be a mere chase for the victory (Benefiel, 2014: 2), those
confronted with the adversarial system of justice, the accused that are unable to prove their
innocence or the victims that are denied rights and prone to revictimisation, find this justice
unfair and unjust.
The holistic justice sustains that no isolated mechanism could be effective and
encourages plurality of approaches which combine retributive (criminal) and restorative
(truth-seeking) conceptions of justice (Friedman and Jillions, 2015: 2). Thus, a more
elaborate process of investigation through stages looks to be more promising. Adopting some
of the inquisitorial methods could help avoid better miscarriages of justice and provide rights
for the victims, which don’t find ‘a voice’ in the adversarial confrontations. By comparing the
two systems Lord Carloway, Scotland’s most senior judge, to better serve vulnerable victims
considers the possibility to provide in trial recordings of the victim reporting, so they could
be spared of aggressive cross-examination and denigration of character, and the possibility of
submitting written testimony as those accepted in a dossier that the inquisitorial system uses
(Ferguson, 2017: 5).
Beside adopting these positive approaches what would better offer closure: crime
control or due process?

List of reference:
Ellison, L. E. (1997) ‘A comparative study of rape trials in adversarial and inquisitorial
criminal justice systems’. Available at: http://0-
search.ebscohost.com.serlib0.essex.ac.uk/login.aspx?direct=true&db=edsble&AN=edsble.41
6485&site=eds-live [Accessed: 11 January 2019].

Benefiel, R. (2014) The adversary system. Available at:


https://www.researchgate.net/publication/282778427_The_Adversary_System. [Accessed: 11
January 2019].

Friedman, R. and Jillions, A. (2015) The pitfalls and politics of holistic justice. Global Policy,
6 (2). pp. 141-150. ISSN 1758-5880. Available at:
http://eprints.lse.ac.uk/61608/1/Jillions_The_pitfalls_and_politics_of_Holistic_Justice_.pdf
[Accessed: 11 January 2019].
Ferguson, P.R. (2017 )Reforming Criminal Procedure: Should Adversarial Systems of Justice
Become More Like Inquisitorial Ones? Available at:
https://law.rutgers.edu/sites/law/files/attachments/Ferguson%20-
%20Reforming%20Criminal%20Procedure%20-
%20Should%20Adversarial%20Systems%20of%20Justice%20Become%20More%20Like%
20Inquisitorial%20Ones.pdf [Accessed: 11 January 2019].

You might also like