America's Adversarial and Jury Systems: More Likely to Do Justice
Walpin, Gerald, Harvard Journal of Law & Public Policy
I. 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.
I. 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. …