Submitted 1 day ago by dynomight@lemmy.world to [deleted]
Conceivably, you could run trials by having a judge (or panel of judges) bring forth the evidence they thought was important. Instead, many countries have a system where one party prevents “one side” of a case and another party presents the “other side”. How did this come about?
Because the two sides are biased and each have their own opinions and you need a less biased 3rd party to decide?
You’ve got concepts confused.
Having the judge make the inquisition has nothing to do with adversarial.
The judges in the UK and US are independent of the inquisition etc. The prosecution is responsible for obtaining evidence.
In Europe, I know a little more about France, the judges are trained to be inquisitorial. I should shut up at this point and let someone who actually knows what they are talking about continue for me.
As for adversarial, still waiting for the day that criminals, for the most part, exclaim like the very old British movies and Scooby Doo cartoons that “It’s a fair cop, guv!” and then explain why and how they did it.
Thanks, using this terminology, I guess I’m wondering about why different places settled on “inquisitorial” systems vs (whatever the opposite of inquisitorial is)-systems. Naive, it seems like an inquisitorial system would be the obvious way to do it. I’m sure that places with non-inquisitorial systems had reasons for choosing that, but I’m not sure why or what the tradeoffs are.
The other comments have covered a lot of the background and variances throughout the world. But what I’ll add is that few countries are purely in one camp or the other. To use the USA as an example, criminal cases are adversarial, in the sense that the defense attorney will duke it out with the government’s attorney whether someone goes to prison.
For civil cases like a contract dispute, the procedure is closer to an inquisition system, although with the judge still merely presiding over the process. But attorneys in a USA civil case can depose witnesses, much like how (I think) a European judge-led inquisition would call a witness, and similar to how British coroners conduct an inquest (if murder mystery depictions on the BBC are accurate).
Perhaps the full thrust of the inquisition style can be found in USA federal agencies, whose rulemaking capacity requires asking direct question to subject matter experts in a public forum, one which eventually leads to a determination on some germane topic, often enacting secondary legislation at the same time. Americans might not necessarily call such an action as a “ruling”, but evidence was taken, all sides were heard, and even public comment was accepted, before rendering a decision.
Okay, I have to make a few assumptions to come at this.
First, that because you’re using English, you’re going to be most interested in an answer framed about the systems of the countries where English is a, or the, main language used.
Second, that you don’t want a shit ton of detail, because you otherwise would have looked possibilities up yourself, because there’s character limits.
Third, that because you asked here, that you don’t want a pile of links (which I’m rarely willing to do nowadays anyway).
So, here’s my general purpose answer within those assumptions, which means precision and accuracy aren’t 100% a factor. None of this applies everywhere.
So, we gotta start with trials. A trial assumes a state, as in a government of some kind. Could be as small scale as a clan or tribal council, could be as big as a nation.
If you don’t start there, it gets crazy trying to fill in.
A trial, by definition, is when the body of the populace (the state), regardless of the organization of that populace, accuses someone of having violated the rules of that body. It’s the “state” saying : you did this, and the individual or group saying “nuh-uh”.
That’s the gist of what criminal justice is.
By the nature of such a thing, you have to have a way of deciding what is and isn’t okay during the trial, and you have to decide who determines the outcome. In monarchies, or feudal systems, it would be whatever ruler is in charge, though they may delegate that decision (as in a crown prosecutor, and judges)
Point being that a trial is inherently adversarial. It’s an accusation against a person or persons, and them having to refute that.
In order to bypass that, you have to eschew any organization of people at all. It’s person vs person, no trials, they hash their shit out. Which is still adversarial, but we have to limit this.
So, there’s always sides when there’s a disagreement. It’s unavoidable. If the state says you did it, and you say you didn’t, and you’re allowed a defense at all, the only question is what sides do what, with what resources. A panel of judges is just as adversarial in practice.
When did that start? At least as far back as written history. It’s a dilemma that’s human. You ever have a sibling or other relative say you did something? If you didn’t do it, or you don’t want to admit you did, until that issue is resolved, shit is unpleasant.
If it’s your siblings, mom and/or dad make the decision, fairly or unfairly.
In a bigger group, it might be the elders, or whatever. Accusations of wrongdoing require resolution for a harmonious group.
When decisions are made by a single individual, like a king, you have to rely on that king being smart, fair, and even handed, as well as wise in handing out resolutions.
So, people all around the world have rules for that.
A lot of the kind of rules you’ll find in the US, Canada, Australia, and places that used to be owned by the British Crown, follow rules that originated as British law. Not every detail, see the initial assumptions and disclaimers already made. But, as a broad thing, the body of law built up in England heavily influenced law in places they owned or dominated.
A lot of that has origins in Rome and Greece, and other preceding cultures, but that’s outside the scope of this.
So, chances are that whatever legal system you’re asking about, came about because of the way the British Empire did things. But you can look to the Magna Carta for the more recognizable facets of it. That was a document setting out rules between the ruling people on how they would treat each other.
But the key to it is that people, in general, need protections from people in power. So those in power sometimes agree to have a system in place to minimize unfairness, at least on the surface (and that’s ignoring how successful that is or isn’t).
That’s how it came about, an attempt to spread out or blunt the power of the state against individuals.
Like you said, panels can work, as long as all the power isn’t vested in that panel. If your group of judges isn’t perfect, then it’s no better than a king making the decision arbitrarily.
In theory, having the state have to present a case, while the accused offers a defense, and a jury making the decision while a judge makes sure everyone follows the rules, should be the way least prone to corruption and even when it fails, it should still be a mitigation of abuses of power. Obviously, it doesn’t work perfectly. As long as the rules are applied evenly to all, and the base assumption is that the state has the onus of proof, that’s as good as it gets in terms of humans trying to make decisions about other humans.
To bring this to a close, let me apologize for things being disjointed. We have a rogue rooster to deal with, so I’ve been writing this in between handling stuff, which means my thoughts were not allowed to flow the way I’d prefer. So I know I missed stuff, and that it doesn’t all connect the way I’d prefer. But I gotta figure out what the hell to do with this little guy, and that means no editing.
Conceivably, you could run trials by having a judge (or panel of judges) bring forth the evidence they thought was important.
This is what cops are supposed to do.
They’re supposed to investigate a crime and narrow down from “everyone” to “the person who did it”.
Once they have enough they bring it to the prosecutor who decides if it would win in court.
Then the state presents that evidence to a judge, and the defendant gets to defend themselves.
xmunk@sh.itjust.works 1 day ago
Bear in mind that our system is quite old and some of the ways we process information have changed so that much more of what is on trial is a “fact” rather than hearsay. However, wouldn’t what you’re suggesting put the burden of information gathering on the judges themselves? This would make trials much more expensive in terms of judge time as well as removing your ability to self-advocate.
Right now when you enter a trial there is a burden on each party to collect and present their evidence - would you prefer a system where you were barred from this and the judge made a ruling based on whatever information they happened to glean independently - potentially missing something that you consider extremely important?