America's adversarial and jury systems: more likely to do justice.

• Jurisdiction: United States
• Date: 22 December 2003
• Author: Walpin, Gerald
• Published date: 22 December 2003
• Author: Walpin, Gerald

1. ADVERSARIAL VS. INQUISITORIAL SYSTEM II. JURY SYSTEM III. CONCLUSION This Article aims to answer the following question: Are the American and British adversarial systems, which rely heavily on juries, or the German and Continental inquisitorial non-adversarial systems, which operate without juries, more likely to result in justice? The Article advocates for America's adversarial and jury systems because they are logically superior and, in my experience, they most often succeed in rendering justice.

1. ADVERSARIAL VS. INQUISITORIAL SYSTEM

   Paraphrasing Winston Churchill's well known statement about democracy (1) provides a succinct description of these competing systems of justice: no one pretends that the adversarial system is perfect; indeed the adversarial system may be the worst form of judicial procedure except for all others that have been tried from time to time.

   The only possible way to avoid defects in any system of justice would be to create a computer program that could digest all of the facts and determine the absolute truth between the divergent assertions of the litigating parties. No such computer exists. That means that any determination must rest on the human foibles of the fact-finder--such as a biased reaction to evidence or the issues of the case--as well as the fact finder's willingness to spend time considering all available evidence and to search for additional relevant facts. These human elements control the ultimate judgment regardless of whether the fact-finder is a lawyer for one of the parties, a juror, or a judge in either the inquisitorial or adversarial system.

   No one with litigation experience would claim that every lawyer or each judge is identical in ability, energy, work ethic, or the extent of bias brought to any case. These realities, these differences between human beings, do not disappear because the human being becomes an inquisitorial judge. This is an axiom that must be applied to the specific question of this Article--whether the inquisitorial system or the adversarial system is more likely to result in justice being done.

   Understanding the differences between the two systems is imperative. The adversarial litigation system relies heavily on advocacy by each party with a relatively passive judge acting as an umpire or evidentiary traffic warden. (2) Only in bench trials (trials where there is no jury) does the judge take on the role of fact-finder. Much, but not all, of the rest of the world has the inquisitorial system, in which the judge plays the pivotal role in adducing the facts and deciding every case. (3)

   Neither the "fact-searching" system nor the "fact-presenting-leading-to-fact-finding" system has any fixed plan or procedure that must be followed. The reality is that, whether that task of searching for and presenting facts is delegated to an inquisitorial judge or adversarial lawyers, the facts made available for consideration will depend on the ability, initiative, bias, determination, thoroughness, energy, aggressiveness, interest, knowledge, and motivation of the specific human being acting as inquisitorial judge or as adversarial lawyer in that specific case. That person, whether judge or lawyer, can do a great job, a passing job, or a poor job. The attributes of the specific person in that role, which determines how that person performs his duty, can result in benefit to one of the litigating parties and detriment to the other.

   So, one might ask, does that mean that, insofar as a search for justice is concerned, the two systems are six of one and half dozen of the other?

   My answer is a decisive no. In the adversarial system, the lawyer for a party has the duty to act zealously and faithfully for his client. Zealous, faithful advocacy means the obligation to search out all favorable evidence, to seek, neutralize or destroy all unfavorable evidence, and to press the most favorable interpretation of the law for his client. (4) That is simply not the obligation of an inquisitorial judge. (5) Even assuming a hard working, totally unbiased inquisitorial judge, his loyalty is to society. Therefore, he must take into account balancing perfect justice against time and budgetary constraints, i.e., looking at his growing docket of cases that can only be decided if he does not spend too much time on any one case, in light of the limited budget provided by the state.

   Granted, in the adversarial system, the judge may limit the time given to any specific case, and each party (limited to his own financial resources) must elect which of many investigatory paths to follow. But, the crucial difference lies in that the party and his attorney, knowing the case and motivated solely by what is in the client's best interests, make the strategic decision of what evidence to seek and present, given limited time and resources.

   Weighing the benefits of an adversarial system against those of with an inquisitorial system requires analysis of the arguments made in favor of the latter. In the end, I believe the arguments made for the inquisitorial system are without merit and conclude that those who favor substituting the inquisitorial system for our adversarial system are driven by an iconoclastic, grass-is-greener elsewhere philosophy. (6)

   Proponents of the inquisitorial system argue that when lawyers interview and prepare witnesses in the adversarial system, they are suborning perjury. (7) Conversely, they argue that this does not occur in the inquisitorial system because lawyers are generally not allowed to interview witnesses before the judge has done so. (8) Instead, the judge acts as the examiner-in-chief, with counsel relegated to a limited role in questioning a witness. (9) Supposedly, the purpose of this is to keep the witness "pristine and pure." (10) But does anyone genuinely believe that, because the lawyer may not talk to a witness, other persons less ethically bound will not talk to the witness and, perhaps more directly, accomplish the perjury? In addition, why should anyone suggest that a poor and un-refreshed recollection wears the halo of purity and trust that furthers the fact-finding process?

   What our system provides is a more likely avoidance of inadvertently erroneous testimony. We all know that Alzheimer's disease is not the only reason for failed recollection. We all have been through totally innocuous situations of being certain of something only to recognize our error when faced with a document, picture, or even just a reasoned review that causes a sudden recall of the correct facts. A lawyer can and should challenge a witness's...