law: leaving behind the inquisitorial system

2425 words 10 pages
Leaving behind the Inquisitorial System
29/11/2012

In the modern world, competition is the bond that holds society together. Every person can relate to it whether that competition is within a sport, video game, or a court hearing. The Canadian legal structure operates on the adversarial system. Neil Brooks defines an adversarial system as one in “which the parties and not the judge have the primary responsibility for defining the issues in dispute and for carrying the dispute forward through the system” (Brooks, The judge and the Adversary system.p.341-353). Within the adversarial system the judge has less of a role. He’s passive due to his lack of participation in the fact-finding. Its opposing system is the
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There are 5 key features that distinguish inquisitorial system. Firstly, during a major case (criminal law), the prosecution is overseen by an independent prosecutor. This prosecutor has the ability to call upon evidence he deems as being fit, interviewing witnesses, and is able to take the case to trial, if he deems appropriately based off the evidence (NZ Law Commission 54-55). Secondly, discretion is more limited. The offender is not allowed to plead guilty despite the amount of evidence against him; all trials are taken to court (NZ Law Commission 54-55). Thirdly, the court is able to create a dossier with all information relevant to the trial. The judge is able to distinguish between reliable and non-reliable evidence, he can detect the flaws within the parties arguments, and he is able to put forth evidence which is favourable toward the victim (NZ Law Commission 54-55). Fourthly, cross examination within the trial is non-existent, but both parties are allowed to ask questions. The judge controls the court, he has the ability to call upon a witness, determine what evidence is valid within the trial, etc. The courts obtain and know all information that is associated with the offender and the trial. For instance the judge is allowed to view the offender’s previous history (NZ Law Commission 54-55). Fifthly, the victim’s status is heightened. He is seen more as a victim, and within the pretrial process he is able to

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