As early as 1866, Faustin Helie, a French judge and legal author, underlined the idea of a necessary equilibrium between the interests of the society (which needs to be protected from infringements) and the interests of the accused persons (whose rights must be totally guaranteed) in the criminal procedure. The aim of protecting society's interests in criminal procedure seems to be contradictory with the necessary protection of individual rights. Nevertheless, a modern criminal procedure system tries to conciliate those interests into an adequate system. For that reason, in countries such as Australia or France, the question of how to reform criminal procedure is arising but the arguments differ as Australia is a common law country and France is a civil law country with some differences in law traditions. In a criminal procedure, two different basic systems can be defined: the accusatorial or the adversarial system and the inquisitorial system. The adversarial system is defined as "The common law system of trial which requires one party, usually the plaintiff or the prosecution, to collect evidence and present it to a judge to prove a cause of action or charge against another party who has to refute or defend.?
[...] On the other side, the defence should have stronger powers. First, the accused person solicitor should have a more effective access to the file from the beginning of the case. Orally aspects of the adversarial system would be useful for example during the pre trial stage. In fact, it is necessary to develop an exchange based system. The problem of the inquisitorial system as practiced in France is that the accused person does not have enough power (access to expert reports, forensic research). III. [...]
[...] This could be the key in finding out the truth and improving criminal procedure. Bibliography McClellan, P. “Courts in the 21st century, should we do things differently?” Judicial review, v.8, n°1, Sept 23-37 Spigelman J , “The Truth can cost too much: the principle of a fair trial” (2004) 78 ALJ29 Australian Law Reform Review of the adversarial system of litigation; rethinking the federal civil litigation system Commission, Issues Paper 20 Review of the Criminal and Civil Justice System in Western Australia, Consultation Drafts, Volume “Advantages and Disadvantages of the Adversarial System in Criminal Proceedings” Bullier Antoine ‘How the French understand the inquisitorial system AIAL FORUM' June 2001 40-44 Judge Burton S. [...]
[...] Because the adversarial system was shown in the advantage of reaching a good decision rather than the search for the truth, it suffers many critics. Therefore, some proposals can be made in order to bring some aspects from the inquisitorial system into the adversarial system. According to Judge Burton Katz: “A system that exalts a criminal's rights over the victim's, procedure over substance and adversarial supremacy over the quest for truth and justice is on the verge of moral bankruptcy. [...]
[...] For the purpose of this assignment, it will be necessary to say whether the adversarial system of criminal procedure is more or less effective than an inquisitorial system in finding out the truth about an alleged offence, to deal with the adoption of any aspect or characteristic of adversarial criminal procedure in France and the adoption of any aspect or characteristic of inquisitorial criminal procedure in Australia. This paper will expose why finding out the truth is a premium in the inquisitorial system rather than in the adversarial system However, it is possible to advocate in favor the adoption of some aspects and characteristics of adversarial criminal procedure in France as it is possible to advocate in favor the adoption of some aspects and characteristics of inquisitorial criminal procedure in Australia. [...]
[...] Conte, « Les galeux de la République - A propos de l'affaire d'Outreau » : JCP 2006, I Faustin Hélié, Traité de l'instruction criminelle, 2e édition t.1 p.4 The Australian Legal Encyclopaedic Definition Ibid Asimow Popular Culture And The Adversarial System, UCLA School of Law, Public Law & Legal, Theory Research Paper Series, Research Paper No. 06-4 E. Mathias, « Faut-il supprimer le juge d'instruction ? » Bréal Ph. Conte, « Les galeux de la République - A propos de l'affaire d'Outreau » : JCP 2006, I Bullier Antoine ‘How the French understand the inquisitorial system AIAL FORUM' June 2001 40-44 Judge Burton S. [...]
Online readingwith our online reader
Content validatedby our reading committee