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76 Judicature 109 (1992-1993)
What Can the American Adversary System Learn from an Inquisitional System of Justice

handle is hein.journals/judica76 and id is 111 raw text is: What can the American adversary system learn from an inquisitorial system of justice? by Franklin Strier During the last decade, judicial man- agement of cases, especially during the pretrial stage, grew decisively.' This has led some to suggest that we are wit- nessing the abandonment of Amer- ica's adversary system, which is hardly the sole means of legal dispute resolu- tion throughout the rest of the world. If so, are we evolving toward another trial model? Among industrialized countries, the inquisitorial system is far more com- monplace. Some of its practices could beneficially be imported into our trial procedure. If nothing else, we may en- hance our perspective by examining the procedures of a system used by most of the world's industrialized na- tions. Although this discussion focuses on civil litigation, most aspects apply equally to criminal cases. The inquisitorial system generally refers to trial practices developed in Europe and adopted in other coun- tries. Although applications of the sys- tem differ from country to country, in- quisitorial trials share certain fundamental features that distinguish them from adversarial proceedings. The most prominent differences in- volve the roles ofjudges and attorneys. As state inquests, rather than as means to resolve conflict, inquisitorial trials are conducted by the state's represen- tative, the judge. The role of attorneys is largely confined to suggesting addi- tional questions for the judge to ask witnesses. In the adversary system, the judge is a relatively passive party who essentially referees investigations car- 1. For an eloquent disquisition on the growth of judicial case management-and the dangers lurk- ing therein-see Resnik, Managerial Judges, 96 HARV. L. REV. 376 (1982). 2. See, e.g., Damaska, THE FACES OF JUSTICE AND STATE AUTHORITY 85 (New Haven: Yale University Press, 1986). 3. Langbein, Mixed Court and Jury Court: Could the Continental Alternative Fill the American Need?, 1981 Am. B. FOUND. REs.J. 195, 200. 4. Goldstein and Marcus, The Myth of Judicial Supervision in Three 'Inquisitorial' Systems: France, Italy and Germany, 87 YALE L.J. 240, 247-49 (1977). ried out by attorneys. Philosophically, states that use the adversary system are reactive and laissez-faire about social and civic mat- ters. Adversarial adjudication is lim- ited to resolving conflict, as defined by the parties involved, with no addi- tional or alternative state agenda. Un- derlying this perspective is a historical distrust of the government's role in private problem solving. In contrast, countries employing the inquisitorial system look to the state for the resolu- tion of social problems and the formu- lation of social policies; adjudication serves as a vehicle for the enforcement of state policies.2 Characteristics of the adversary sys- tem include reliance on oral testi- mony, a dialectical paradigm for truth- seeking, decision making by layjurors, party-controlled procedures, the right of parties to waive procedural require- ments by mutual agreement, emphasis on procedure over substantive result, and a neutral judge concerned only with the integrity of the process. In contrast are the corresponding features of the inquisitorial system: re- liance on official documentation, a sci- entific paradigm for truth seeking, no juries but a career judiciary trained specifically for the bench rather than the American model of selecting judges from the ranks of practicing at- torneys, nonpartisan state-controlled procedure, rigid state regulation of the legal process, and activist judges who intervene to ensure a solution based on the merits of the case. Procedure vs. results Noteworthy here are the varying ori- entations toward justice. Adversary theory holds that adherence to proce- dure legitimizes whatever result is reached. On the other hand, inquisito- rial theory views any deviation of the verdict from the result required by law as inconsistent with the proceeding's objective. Viewed in this light, the ad- versary and inquisitorial systems are not alternatives for achieving the same theoretical objective: the adversary sys- tem serves to resolve conflict, while the inquisitorial system serves to en- force state goals. Because the latter is geared to providing the best policy re- sponse to a given situation, the pro- ceeding must be state controlled. Oth- erwise, private interests might thwart the state's agenda, and information other than that offered by the litigants might not be introduced. Inquisitorial trials do not use juries as understood by the adversary pro- cess. Instead, a combination of lay and professional judges decides most cases. This mix is designed to broaden the perspectives of the professional judges. And unlike the secrecy that shrouds the adversarial decision-mak- ing process, the inquisitorial court leaves tracks. A written record explain- ing its findings of fact and law accom- panies the verdict.' The absence of a jury in inquisito- rial proceedings removes the need for most exclusionary evidence rules. Hearsay, opinions, character evidence, and evidence of prior convictions (in criminal cases) all must be admitted unless better evidence is available. In- quisitorial procedure clearly exhibits expansive notions of testimonial privi- lege, and no evidence is automatically excluded. Factors affecting admissibil- ity in the adversary system merely af- fect weight in the inquisitorial process. Perhaps the most salient feature of inquisitorial trials is the court's obliga- tion to ascertain the truth of the con- tested matter for itself.4 No such obli- gation exists in American courts. In the inquisitorial system, the underly- ing reason that judges conduct trials is to safeguard against partisan distor- tion of the facts. Judges can clarify am- biguities by requiring relevant evi- dence not previously requested by the

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