Inquisitorial
One alternative to the adversarial system is the inquisitorial system, which is commonly used in civil law jurisdictions. In this system, judges play a more active role in investigating cases, calling witnesses, and gathering evidence. The judge’s primary goal is to uncover the truth, rather than to serve as an impartial arbiter between two opposing parties. These proceedings aim to establish facts and provide answers to questions of public importance, rather than to determine criminal or civil liability. It is important to note that the distinction between adversarial and inquisitorial systems is not always clear-cut, and many legal systems incorporate elements of both approaches, creating a spectrum rather than a strict dichotomy.
Limitations
The theoretical justification for the adversarial system is that it promotes truth-seeking by subjecting evidence and arguments to rigorous scrutiny and cross-examination. The idea is that through this process, weaknesses in each side’s case will be exposed, and the truth will ultimately prevail. Advocates of the adversarial system also argue that it protects individual rights by ensuring that defendants have a strong advocate in their corner and by placing the burden of proof on the prosecution in criminal cases. While the inquisitorial system offers some potential advantages over the adversarial system, it is not without its limitations. In practice, inquests and inquiries often become adversarial, as interested parties seek to protect their own interests and advance their own narratives. Representation and resources still play a significant role in inquisitorial proceedings, as those with greater means may be better equipped to present evidence and influence the direction of the investigation. Additionally, the inquisitorial system places significant power in the hands of the judge, which can raise concerns about bias and the potential for abuse of authority.
Beyond cross-examination
Another aspect of the adversarial system that has come under scrutiny is the reliance on cross-examination as a means of uncovering the truth. Cross-examination often focuses on identifying inconsistencies in a witness’s testimony and assumes that contradictions indicate lying. However, this assumption fails to account for the fallibility of human memory and the impact of factors such as mental health on recollection. Trauma, for example, can significantly affect an individual’s ability to recall events accurately and consistently. Moreover, cross-examination places a great deal of emphasis on witness demeanor and credibility, which can be influenced by cultural differences, anxiety, and other factors unrelated to the truth of the testimony. The effectiveness of cross-examination also depends heavily on the skill of the advocate and the witness’s experience in handling questioning, rather than on the inherent truthfulness of the evidence. As a result, cross-examination may not always be a reliable guide to truth-telling and can, in some cases, obscure rather than clarify the facts of a case.
