1.1 The Concepts and Objectives of the Criminal Process

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

1.1 THE CONCEPTS AND OBJECTIVES OF THE CRIMINAL PROCESS

1.101 Inquisitorial and Adversarial Legal Systems. The American legal system is an adversarial system based upon common law, which is unique compared to that of most European countries that use inquisitorial proceedings. The main differences center on the roles of judges in the systems. Professor Francesco Parisi concisely summarized the differences in an article he wrote in the International Review of Law and Economics: ¹

In a typical inquisitorial proceeding, the trial is dominated by a presiding judge, who determines the order in which evidence is taken and who evaluates the content of the gathered evidence. In those proceedings, the court determines the credibility and relative weight of each piece of evidence without being constrained by strict rules in that respect. By contrast, in a typical adversarial system, the case is organized and the facts are developed by the sole initiative of the parties. The process develops through the efforts of the litigants before a passive decision maker who reaches a decision on the sole basis of the evidence and motions presented by the litigants.

Many of the most important rights in the United States adversarial system are enshrined in the Constitution and the first ten amendments, and almost all are unique when compared to other systems throughout the world. The Fourth Amendment protects people from unreasonable searches and seizures and requires the government to obtain warrants based upon probable cause and particularly describing the places to be searched and things to be seized. The Fifth Amendment prevents a person from being twice put on trial for the same offense, from being compelled to be a witness against himself or herself, or being deprived of life, liberty, or property without due process

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of law. The Sixth Amendment affords the accused a speedy and public trial by an impartial jury, requires the government to inform the accused of the...