Criminal Procedure

There are two major systems of criminal procedure in the modern world—the adversarial and the inquisitorial. Both systems were historically preceded by the system of private vengeance in which the victim of a crime privately, either personally or through an agent.

The modern adversarial system is only one historical step removed from the private vengeance system and still retains some of its characteristic features. For example, even though the right to initiate legal action against a criminal has now been extended to all members of society (as represented by the office of the case. In the final analysis the adversarial system of criminal procedure symbolizes and regularizes punitive combat.

By contrast, the inquisitorial system begins historically where the adversarial system stopped its development. It is two historical steps removed from the system of private vengeance. From the standpoint of legal anthropology, then, it is historically superior to the adversarial system. Under the inquisitorial system, the public prosecutor has the duty to part in the conduct of the trial, with a role that is both directive and protective.

Fact-finding is at the heart of the inquisitorial system. This system operates on the philosophical premise that in a criminal action the crucial factor is the body of facts, not the legal rule (in contrast to the adversarial system), and the goal of the entire procedure of the court, the commission of the alleged crime.

Because of the inquisitorial system’s thoroughness in conducting its pretrial investigation, it can be concluded that, if given the choice, a defendant who is innocent would prefer to be tried under the inquisitorial system, whereas a to be tried under the adversarial system.