Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

13
DNA Profiling and the Use of Expert Scientific Witnesses in Criminal Proceedings

PETER ALLDRIDGE, SANNEKE BERKHOUT-VAN POELGEEST, AND KATHERINE WILLIAMS


INTRODUCTION

One of the areas of comparison between adversarial and inquisitorial systems of criminal justice is fact-finding.1 The adversarial system relies upon oral evidence at trial, with cross-examination as the primary formal test of veracity. Facts are proven dialectically through a dramatic contest between two inconsistent narrative accounts of (often common) data.2 The inquisitorial system involves the court in the preparation of evidence, leaves fewer questions to the trial itself, and presents itself as a search for truth rather than a contest of divergent accounts. The adversarial method of fact-finding is not in general well directed towards ascertaining the truth of the matter. The problems were well summarized by Goodpaster:3

In such a system, the truth might emerge if the mutual and misleading distortions of two equally matched and similarly purposed adversaries annihilated each other, like a collision of particles in a cyclotron, leaving historical fact behind as a trace particle. This cherished belief is, however, just a hopeful supposition . . . There is no empirical evidence indicating that contests of advocates deliver truth in this manner.

But if the problem with the adversarial system is that it is not well directed towards discovering truth, the problem with the much more explicit search for truth undertaken in the inquisitorial system is the simple epistemological one that truth often cannot be known, and that searching for it should take second place to the provision of mechanisms which generate acceptable resolutions to disputes.

We are grateful to Celia Wells and Stewart Field for their comments upon an earlier draft of this chapter.

____________________
1
Mirjan Damaska, 'Presentation of Evidence and Factfinding Precision' ( 1975) 123 U. Pa. LR 1083.
2
Gary Goodpaster, 'On the Theory of the American Adversarial Trial' ( 1987) 78 J. Crim. L. & Crimin. 118.

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