Herbert Packer describes two models of the adjudication process: the adversarial system and the inquisitorial system. Both systems aim to find the truth in a proposed criminal situation and to punish the guilty. However, both models differ on what they believe is the best way to uncover said truth. To begin, both systems arise from different legal traditions. The adversarial system comes from the common legal tradition, which can be found in England and the United States. Whereas the inquisitorial system arises from civil law tradition, which can typically be found in continental European countries. The main assumption of the adversarial process of adjudication is that truth can be found when one has an open competition over two parties’ …show more content…
It is believed that a careful and thorough investigation is the best route to uncovering truth. In this system the states acts on behalf of the accuser as a way of substituting private vengeance. Unlike the adversarial process, the defendant in this case is assumed to be cooperative and helpful in the investigation. In another contract, the inquisitorial process does not recognize the use of plea bargaining. Plea bargaining can involve confessing to specific crimes in order to receive a potentially lighter sentence. In the inquisitorial process, however, the act of confessing to a crime you didn’t commit makes it impossible to uncover the absolute truth, which is assumed to be the most important part of the criminal process. Because of this importance placed on truth, the state is involved very early on in the criminal investigation in order to make it difficult for the defense or the prosecution to hide any potential evidence. Once the case goes to trial, the trial is viewed as less of a competition and more as a continuation of the ongoing investigation. Instead of the overall power being split between the prosecutor, defense and judge, the judge is the most active and holds the most power. The defense and prosecutor present and interpret the facts, while the judge thoroughly investigates the case and examines witnesses. The judge is then able to make their own …show more content…
While both aim to find the truth in criminal situations, neither is considered better or worse at doing so, they just have different methods of going about it. The adversarial process focuses on a competitive trial between a prosecutor and defense attorney in order to determine truth. The prosecutor acts on behalf of the accuser as an extension of person vengeance, while the defense attorney acts on behalf of the defendant who needs not be cooperative, as the burden of proof is on the prosecutor. In this process the judge has a diminished role, with power split evenly between the key players. The case is then ultimately decided by a jury. In the inquisitorial process, however, the focus is on the screen process and a thorough investigation that begins before a trial. The trial is then treated like part of the ongoing investigation, with the judge playing the role of main investigator. The state acts on behalf of the accuser, while the defendant is assumed to work cooperatively with the investigators. The prosecution and defense present their facts, but the ultimate decision of truth lies with the
When examining criminal justice systems it is important to note two important criminal justice models, the due process model and the crime control models. Most governments function based on several aspects from each criminal justice model; these crime models were initially introduced by Herbert Packer in 1968 (Cole, Smith, & DeJong, 2014). The due process model in the criminal justice system reflects the formal decision making process and highlights the importance of ensuring the criminal justice system works upon reliable knowledge (Cole, Smith, & DeJong, 2014). The crime control model is based on efficiency and ensuring crime is repressed as much as possible; this model promotes bargaining and often encourages defendants making deals with
Kassin, Saul, and Lawrence Wrightsman (Eds.). The Psychology of Evidence and Trial Procedure. Chapter 3. Beverly Hills: Sage Publications, 1985. Print.
The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
Next, comes prosecution of the defendant by the state attorney, then incitement, the filing of information by prosecution to decide whether to proceed to trial. Followed by arraignment, which is the plea of guilty or not guilty, pretrial detention, plea bargaining, trial, and sentencing (Process of Criminal Justice). For O. J. Simpson, this process started with the investigation of the murders of Nicole Brown Simpson and Ronald Goldman. The same day the bodies were discovered, Simpson flew back from Chicago to Los Angeles. Upon his arrival, authorities took him into custody and began their questioning.
The governance of our present day public and social order co-exist within the present day individual. Attempts to recognize the essentiality of equality in hopes of achieving an imaginable notion of structure and order, has led evidence based practitioners such as Herbert Packer to approach crime and the criminal justice system through due process and crime control. A system where packer believed in which ones rights are not to be infringed defrauded or abused was to be considered to be the ideal for procedural fairness. “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” Thomas Jefferson pg 9 cjt To convict an individual because proper consideration was not taken will stir up social unrest rather then it’s initial intent, when he or she who has committed the crime is not punished for their doings can cause for a repetition and even collaboration with other’s for a similar or greater crime.
A negotiation, a contract, and many more ways used to describe the Criminal Justice System’s notion of plea bargaining. Plea bargaining has been around for a long time, but it is not until recent times that the use of a plea bargain has become a common practice. Defendants are given the chance to plead guilty for a lesser sentence and thus waive their right to trial. However, certain concerns relating to the actual guilt of defendants and the professionalism of the attorneys assigned to a case arise from an ethical stand point. Solutions offered to improve the practice of plea bargaining are often in two extremes. In one extreme, some argue for abolishment. In the other extreme, some state that plea bargaining simply needs to be reformed.
Throughout the years there have been limitless legal cases presented to the court systems. All cases are not the same. Some cases vary from decisions that are made by a single judge, while other cases decisions are made by a jury. As cases are presented, they typically start off as disputes, misunderstandings, or failure to comply, among other things. It is possible to settle some cases outside of the courts, but that does require understanding and cooperation by all parties involved.
In the Criminal Justice system, the main goal is justice or in other words, a fair consequence to match a criminal action. An obvious, yet unmentioned underlying goal is to prevent injustice. Many times, justice prevails, and this is why our system prevails today. However, when justice fails, it is key to look at the information offered in order to better the system and to repay those that have been failed by it. One area that has shown itself as flawed is the area of interrogations though many other areas will be presented throughout this paper as well. By examining five cases involving questionable interrogation and showing other system flaws, I will enlighten others as to how our justice system handles its flaws, and hopefully I will provide motivation for further improvement.
Now that we have discussed the pretrial occurrences, we get into the trial portion of the court process. This is the portion of the process in which both the defense and the prosecution present their cases to the jury, the judge, and the rest of the courtroom. To select a jury, the bring in potential jurors and ask them questions,
Nearly all non-English speaking industrial democracies use the inquisitorial system rather than the adversary system. In this system, the judge, not the prosecutor and not the defense attorney, calls witness and questions them. Would you prefer being tried under the adversary system or the inquisitorial system? The Adversary system, and I will explain further in my discussion post as to why. Would you have confidence in the willingness of the judge to search out equally evidence for conviction and evidence for acquittal? Consequently, yes, I would have confidence in the willingness of the judge to search out equally evidence for conviction and evidence for acquittal.
In much of Europe there is an inquisitorial form of trail, whereby a judge is responsible for interviewing witnesses. Th...
The criminal trial process is able to reflect the moral and ethical standards of society to a great extent. For the law to be effective, the criminal trial process must reflect what is accepted by society to be a breach of moral and ethical conduct and the extent to which protections are granted to the victims, the offenders and the community. For these reasons, the criminal trial process is effectively able to achieve this in the areas of the adversary system, the system of appeals, legal aid and the jury system.
Plea bargaining is occasionally referred to as a form of “backdoor justice.” This is because plea bargains, which make up a vast majority of criminal proceedings, occur outside of the courtroom. They happen before or during a trial and often the reasons are unknown to anyone not directly involved in the case. The U.S. Supreme Court upheld plea bargaining as constitutional in Brady v. United States. This tactic can work to the advantage of criminal defendants and their attorneys, yet can also lead to certain abuses of the system on the part of the defense, each of which will be addressed in turn.
“ ….Judgments, right or wrong. This concern with concepts such as finality, jurisdiction, and the balance of powers may sound technical, lawyerly, and highly abstract. But so is the criminal justice system….Law must provide simple answers: innocence or guilt, freedom or imprisonment, life or death.” (Baude, 21).
Generally most inquisitorial systems must show full review of the case to the defendant before they give evidence whereas in the adversarial system is not compulsory for the defendant to testify furthermore the defendant’s in the adversarial system are not authorised to see the full record of their case. In cases where the inquisitorial system is used the criminal defendant is not required to answer questions regarding on the crime they have committed, however, they are obligated to answer all other questions in trial. Other questions which refer to the defendant’s past history in the trial would be reflected as unrelated and inadmissible in the adversarial system. In the inquisitorial system the defendant is not presumed guilty instantaneously