Comparative Criminal Law Working Group 1

Comparative Criminal Law: Workgroup 1 (2016/2017)

Comparative criminal law

Working group 1

Assignment 1

According to Brants & Franken, the central issue determining whether a criminal process is (predominantly) inquisitorial or adversarial, is the conception of the ideal search for the truth (p. 6 literature reader). Weigend’s article also elaborates on the truth-finding in both systems.

1. Describe the inquisitorial truth-finding conception, explaining also that the term ‘inquisitorial’ is closely related to the word ‘inquiry’.

Answer to question 1a:

Brants & Franken’s article: The state is best entrusted with truth finding. The police is subordinate to the public prosecutor and in some cases an investigating judge.

Weigend’s article: The inquisitorial system entrusts an authoritative, neutral law officer with collecting relevant evidence, a process that includes the interrogation of suspects and witnesses. In the inquisitorial system the suspect is the subject of the investigation. He only has a few rights. He may be interrogated, this is why the term inquisitorial is closely related to the word ‘inquiry’.

Inquiry means that someone asks a question intended to get information about someone or something.

This also happens in the inquisitorial system, because witnesses and suspects can be interrogated. This is to get information on the suspect.

• The state is best suited to find the truth.
• Focus on the pre-trial state, because the dossier is made and this is handed over at the trial. The suspect is subject to the investigation. The dossier is the only file that can be used at the trial.
• Focus on the best truth.

2. Describe the adversarial truth-finding conception, explaining also that the term ‘adversarial’ is closely related to the word ‘adversary’.

Answer to question 1b:

Brants & Franken’s article: The criminal process (oral trial) is conceived of as a struggle between parties in which the individual defendant fights his own corner.

Weigend’s article: The adversarial system relies on opposing parties coming forward with their competing versions of the truth, challenging each other’s accuracy, and thereby ultimately bringing about a composite picture of or approximating the truth. This is also why the term adversarial is closely related to the word ‘adversary’, which means ‘enemy’, or ‘opponent’.

You could consider the parties as each other’s enemies or opponents, because they have a different vision of truth and they try to challenge each other’s accuracy.

• Equality of arms
• Focus on the procedural truth: you will never find the whole substantive truth. The procedure is very important, this is the main focus in the adversarial system.

Assignment 2

Weigend is critical about the truth-finding ability of both types of systems, but, obviously, for different reasons. He concludes that the end result of the search for the truth in both systems however will often be strikingly similar: “a half-truth based on what the defendant and more or less interested third parties are willing to disclose.” (p. 16 reader)

1. What assumptions and features of the adversarial system hamper discovery of the truth, according to Weigend, and why?

Answer to question 2a:

Weigend states that the adversarial system is not effective. ‘’The system is built on the theory that two halves of the truth make one whole, that the truth will appear. The truth will be discovered by testing differing versions of the relevant factors through cross-examination of the respective proponents, each side striving to present the facts favorable to its case in the best light possible while disparaging the opponent’s version.’’

The theory rests on a number of assumptions:

• Each side, in criminal cases, presents part of the truth, and neither has it all;
• Each side has a genuine interest in bringing out the truth;
• Each side has equal opportunity to convince the trier of fact of the accuracy of its version

These assumptions and features hamper the discovery of the truth, because the defense could try to confuse matters. ‘’If this happens, the innate tendency of the adversarial system to balance the competing versions will run the risk of diverting from the truth rather than establishing it.’’

Secondly, there is always one party which wants to conceal the truth, this part will not cooperate in the truth-finding process.

Thirdly, the reliability of the adversarial process is based on its fairness, especially on each parties equal access to evidence and on an equal distribution of competence and means to present evidence in court; however, equality of this kind cannot exist. There can never be equality.

In addition, the truth in the adversarial system is based only on the relatively small array of material then available, and valuable information will be ignored because one or both parties cannot present it at the right time in the legally prescribed manner. Therefore, there is no true truth, but a procedural truth.

2. What obstacles does the inquisitorial system encounter in its search for the truth?

Answer to question 2b:

The inquisitorial system encounters a psychological flaw; it overlooks the fact that truth cannot reliably be extracted from a person unwilling to reveal what he knows. Even torture, the most extreme form of overpowering the resistance of a recalcitrant witness or suspect, turns out to be less than effective in producing the truth. If the person who possesses relevant information refuses to cooperate, the inquisitorial judge is left with empty hands in finding the truth.

Assignment 3

Pakes elaborates on several differences between the French and the English trial system, which are regarded as the archetypical ‘inquisitorial’ and ‘adversarial’ trial system (p. 115-119). Brants & Franken also discuss the defining differences between inquisitorial and adversarial systems (p. 6-10).

1. Mention the differences between these systems as to 1) the position of the defendant 2) the role of the trial judge 3) the dossier 4) rules of evidence. 

Answer to question 3a:

Brants & Franken’s article:

The differences between the inquisitorial and adversarial system:

Pakes’ article:

The differences in the inquisitorial and adversarial system:

2. Pakes claims that listing these differences helps us appreciate the core difference between the inquisitorial and the adversarial mode of trial. What is, according to Pakes, this ‘core difference’? How can the differences meant under A be explained in terms of this ‘core difference’?

Answer to question 3b:

The core difference is that in adversarial systems the role of the defense counsel is more prominent. The core difference is that in adversarial systems, the defense has to find and present the truth, while in the inquisitorial procedure the prosecutor has to find the truth. In inquisitorial proceedings the defendant will normally contribute to proceedings (more central position).