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adversary and inquisitorial procedure, in law, the two methods of exposing evidence in court. The former method requires the opposing sides to bring out pertinent information and to present and cross-examine witnesses; the latter assigns such responsibilities to a professional judge. The adversary procedure is observed primarily in countries where the Anglo-American legal system predominates, while the inquisitorial system is typical of civil-law countries.
Under the adversary system, each side is responsible for conducting its own investigation. The inequality of the prosecution and the defense during the pretrial stage is apparent. The prosecution has at its disposal the police department with its investigators and laboratories, all financed with public funds. The defense, on the other hand, must find its own investigative resources and finances, and if the client is indigent the attorney must pay the costs himself.
In the grand jury indictment proceedings conducted in the United States, but no longer in Great Britain, the defense does not offer evidence and is not even present. The grand jury need only find probable cause for guilt in order to indict someone, and the prosecutor, often under considerable pressure to et a conviction, will follow a case through if he feels there is even the slightest possibility of conviction. He is under no obligation to reveal evidence that would support the accused’s innocence.
In countries with the inquisitorial procedure, the pretrial hearing is usually under the control of a judge whose responsibility is to investigate all aspects of the case, whether favourable or unfavourable to the accused. Witnesses are heard, and the accused, who is represented by counsel, may also be questioned. He is not, however, required to speak, and if he does he is not under oath.
In Germany, the prosecution participates in the investigation; and in the Soviet Union, a representative of the state prosecutor is in charge of the investigation rather than a magistrate; but in France the prosecution only presents its recommendations at the end of the preliminary hearing.
In both France and Germany, the investigating magistrate will recommend a trial only if he is very sure that there is sufficient evidence of guilt. The most important result of the investigative proceeding is that the dossier, containing all the evidence and testimony, is made available to the defense. Because of this, the element of surprise so often present in adversary trials is lacking. In the adversary trial, the opposing sides present evidence and examine witnesses. During the cross-examination of witnesses, the relative skills of the prosecution and defense counsel are exhibited. The adversaries are often able to bend testimony to their own purposes and, through cajolery and surprise, elicit information that the witness had no intention of giving. Through skillful questioning testimony can be made to take on various meanings. In their oral summations the prosecutor and the defebse counsel attempt to influence the jury through the use of argument and rhetoric.
Under the inquisitorial procedure, the trial judge conducts the examination of witnesses, basing his questions on the material in the dossier. The prosecutor and defense counsel play relatively minor roles. Evidence can be introduced without concern for the kind of technical limitations that exist in the adversary system, Neither the prosecution nor the defense has the right to cross-examine witnesses, but they have considerable influence over the court through their presentations, which are analogous to the adversary summations. The jury, which does not have access to the dossier, bases its decision purely on the evidence and testimony presented in court.
Because the trial stage is never reached in the inquisitorial system without a strong determination of guilt, the innocent person has less chance of being brought to trial erroneously than under the adversary system. At the same time, however, a convicted person has a greater chance under the adversary system of having his conviction overturned.
