NCJ Number
84742
Date Published
1981
Length
9 pages
Annotation
This paper compares the accusatorial system and the inquisitorial system of criminal justice, with emphasis on the fact-finding process and the law of evidence.
Abstract
Although no country has a pure accusatorial or a pure inquisitorial system, common law countries use procedures inspired by the accusatorial tradition and civil law countries have a structure tending toward the inquisitorial tradition. In general, the accusatorial system seems to be more sensitive to the liberty of the citizen, while the inquisitorial system places more emphasis on ensuring the punishment of a guilty party. Italy is a typical civil law country and has a criminal process which is divided into three phases: the pre-instruction phase, the instruction phase comprising the investigation and collection of all the evidence, and the trial phase. This system concentrates the judicial and prosecutorial functions in the judge. In addition, the judge initiates the investigation and collects all the evidence. Moreover, the judge has complete control over the admissibility and evaluation of the evidence. No exclusionary rules such as the hearsay rule exist. Judges use their prudent judgment in deciding on the weight to be attributed to evidence which might otherwise be inadmissible. However, no more apparent injustice seems to be produced by the inquisitorial system than by the accusatorial system. Such elements as judicial initiative in calling witnesses could basily be accommodated within the existing accusatorial framework. However, major reforms such as abolition of the hearsay rule would necessitate a reevaluation of criminal procedure. The feasibility of such reforms in systems, which, unlike Italy, are basically jury systems, also needs to be considered. All reforms should be considered in the broad context of the purposes of the law of evidence.