the trial. for next time: read page 89-94 in pakes

THE TRIAL

For next time:

Read page 89-94 in Pakes.

Civil law - Inquisitorial Common law - Adversarial

There are two basic models for criminal trials which are used in most of the world.

The first, the inquisitorial model, is the most popular. It originated in continental Europe. This is the model used in Turkey.

The second, the adversarial model, is used in most English-speaking countries. It originated in England.

Ideals

Inquisitorial systemAdversarial system

Involves a search for the truth by an impartial officer of the state.

It is important that the judicial officer, judge or prosecutor, does not care whether a conviction results or not.

The truth is supposed to come out when two parties vigorously defend their positions before a neutral and unprejudiced judge.

Parties, rather than state agencies, control the investigation and judges do not participate actively in the search for truth.

Evidence


All relevant evidence will be placed before the court .

Evidence is collected and examined in private before the trial.

The collection of evidence is controlled by the investigating judge, not by the parties.

Only some kinds of evidence can be presented at trial. The judge will decide what can be presented.

The parties do the investigating. The judge will not see most of the evidence until the trial (and a jury should not see any of it.)

Evidence


evidence for a criminal trial in an inquisitorial system will be in a dossier in documentary form, which forms the principle basis for the decision of the trial court.

Evidence is usually presented orally by first-hand witnesses at the trial, with cross-examination to allow each side to test this evidence

Letting the fact finder (jury or judge) see the demeanor of the witnesses is important.

Actors: Judges


Judges are in charge of the investigation

They ask most of the questions in court

They usually decide guilt.

Though there may also be a kind of a jury.

Judges are not involved in the investigation.

They do not usually question the witnesses

Though they may.

They do not usually decide guilt.

Though they may take that role if the defendant wishes.

Actors: Lawyers


The Prosecutor and defense counsel have unequal roles, with the prosecutor being more important.

The prosecutor’s role in the preparing the case before trial is great, but during the trial the judge is in charge of the investigation.

The Prosecutor and defense counsel have equal standing in court.

The lawyers run the investigation for both the prosecution and the defense throughout the legal process.

They question the witnesses in court.

Trials in France – the archetypical example of an inquisitorial trial system.

French law distinguishes between grave, serious, and minor offenses.

Grave offenses are tried in the assize court.

Serious offenses are tried in the correctional court.

Minor offenses are tried before a police court.

Pakes, p. 88

Trials in France

Trials in the Assize Court are tried before three judges and a 9 member jury made up of members of the public.

Trials in the Correctional Court are before 3 judges with no jury.

Trials in the police court are before one judge.

Pakes, pages 88-89

Trials in France

In the Assize Court, the jurors and the judges decide together on both guilt and sentencing.

Trials in France

Defendants are never under oath.

Witnesses are asked to tell their stories before the judge asks them specific questions.

Trials in France

In courts with a jury, the role of the presiding judge is still very important. The presiding judge does most of the

questioning. Neither the assessors nor the jury can see

the dossier. Following closing remarks by the

prosecution and the defense, the presiding judge summarizes the facts for the jury.

Flow of an adversarial trial in common law countries – the US, England and Wales. Indictment read, defendant enters a plea

of “guilty” or “not guilty.” In inquisitorial systems, there is usually no

plea. A jury is sworn in. The prosecution opens its case with an

opening statement. The prosecution calls its witnesses. The witnesses are examined by the

prosecutor In England and Wales, by the prosecuting

barrister.

Flow of an adversarial trial in a common law country

After each witness testifies under direct examination, he/she is cross-examined by defense counsel. After cross-examination, the prosecutor may

question the witness again, if he/she wishes. After the prosecution has called all of its

witnesses, the defense calls its witnesses. each witness testifies under direct

examination by defense counsel. Then, he/she is cross-examined by the prosecutor.


There is no dossier. The jury comes into the trial knowing nothing about it. The judge may know something about the evidence

from pre-trial motions, but much less than a judge in a civil law country.

Evidence is presented orally. Written documents and objects are entered into evidence by live witnesses.

Only certain kinds of evidence can be considered. Illegally obtained evidence, “hearsay” evidence and

many other kinds of evidence may be excluded.


The main reason for these elaborate rules of evidence is the jury system. Because the people on the jury are not trained, we need to prevent them from hearing unreliable or misleading evidence. In an inquisitorial system, the decision makers

are professionals (or, as with the French jury in the assize courts, there are professionals to guide them.) In theory, these professionals know how much weight to give different kinds of evidence.


After the evidence has been presented, the prosecutor and defense counsel make their closing statements to the jury.

In England and Wales, the judge will summarize the facts of the case and instruct the jury on the law relevant to the charges and the burden of proof.

In the US, the judge may not summarize the facts, but will instruct the jury on the law relevant to the charges and the burden of proof.


Finally, the jury will go to a private room to discuss the case and come to a verdict.

the trial. for next time: read page 89-94 in pakes

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