False Imprisonment in the Adversarial-Inquisitorial System Debate
The acts of falsely imprisoning someone and paroling a chronic
offender both share something in common: they are both condemned
by the public for the same reasons, they are both causes of injustice
towards citizens, and they are both necessary sacrifices made
by two often-flawed legal systems. While they differ in kind,
they do not necessarily differ in severity. They highlight glaring
holes in the fabric of criminal justice, and threaten the legitimacy
of the court system.
One thing they are not, however, is the result of individual,
power-abusing police officers or crooked judges. Both the acts
of false imprisonment and relaxed enforcement are no more the
"result" of injustice than crime is the "result"
of antisocial behaviour. They are not causes, they are symptoms,
and of a much wider, more systemic nature. The implication for
our purposes is that the features of the two dominant dichotomous
forms of justice, the adversarial system and the inquisitorial
system, may each uniquely influence the rates of false conviction
and imprisonment in each legal system's country. A discussion
by Beresford (2002) tends to support this claim, stating that
while some "features of the adversarial system may be based
on sound reasons, they can sometimes work against an innocent
person" (Beresford 2002). Since the parties are solely responsible
for presenting evidence during trial, incompetent defence counsel
or an unreliable or false confession likely can enter the court
unchecked and be overlooked by the prosecution.
The debate concerning adversarialism and inquisition resounds
familiarly with legal scholars. According to proponents of the
former, adversarialism encourages more motivated, and hence more
accurate, methods of fact-finding, as well as a higher quality
of litigation. After the court "battle" has been won,
there is a just, if not tranquil state of closure - a "catharsis,"
in the words of Neil Brooks (1976).
Inquisition, according to its proponents, is inherently suited
to social change, fosters more efficient policy enactment, and
(of weaker importance to the participants), saves the excessive
expenses seen in adversarial cases. For example, Green River Killer
Gary Ridgway's defence-attorney costs amounted to over $12 million,
and he pleaded guilty (Rule 2005).
False imprisonment could more reasonably be assumed to exist
when the responsibility for investigating case facts, and obtaining
and presenting evidence was left up to the litigants. This is
not the case in the inquisitorial system. Because skills and abilities
of litigants are in general far inferior to that of judges or
justices of the peace, when these skill deficiencies are realized
in court the accused understandably suffers.
The dichotomy is also one of civil rights ideology. Adversarialism
respects individual liberty while Inquisition respects public
protection. From a forensic psychological perspective, adversarialism
may result in higher "false-negative" rates, (for example,
acquitting a known murderer for lack of evidence, breach of procedure,
or violation of defendant rights), where inquisition may result
in higher "false-positive" rates, (for example, convicting
an innocent person because of overaggressive policing, abuse of
discretion, discrimination, or judicial conservative notions of
protecting society as a whole, or in short, giving our legal "protectors"
the benefit of the doubt). The adversarial system thus appears
to be comfortably suited to initiatives like the Bill of Rights
or the Canadian Charter of Rights and Freedoms, both of which
enforce compliance with democratically-accepted universal rights
in our society. However, both documents have been criticized lately
for grossly failing to live up to these objectives. The Charter
of Rights, for example, does little to encourage proactive legislative
change following Supreme Court Charter cases. The bureaucracy
of the process ensures that a court decision at the Supreme Court
level takes no less than 3-5 years to reach. Litigants appealing
before the Supreme Court must have the skills and resources necessary
to make it there. Journey to the highest level of court in Canada
is anything but a fluid or unrestricted process. In fact, by the
time it gets to the Supreme Court, the case's context is so removed
from its grassroots political objectives and transformed into
cold, legalistic aims, it is difficult for the case to solidify
any lasting systemic change. It still requires defence counsel
to make a case. It still addresses individual dispute resolution,
and does not address collective issues. The list of drawbacks
to the Charter goes on. To claim that the adversarial system is
suited to the Charter is a difficult task. Despite their objectives,
civil rights legislation situated in an adversarial context will
only be as good as its method of delivery.
Some may argue that tendencies of adversarialism are simply
natural progressions in failed legal systems of codification.
Where legislative or codification efforts are unclear, inconsistent,
or illegible even by legal professionals, it becomes the responsibility
of courts to decode them. Where the legislation gives no recognizable
founding principles to its prohibitions and penalties, the legal
system supplants its own principles. These, many argue, are shaped
by the education, training, and experience of the legal profession,
a brutally-pragmatic and sophistic institution in relation to
the more democratic structures of parliament and its legislation.
While lack of clarity in legislation can result in additional
discretion on the part of police and judges, it can similarly
result in a shift to more freewheeling practices of adversarial
litigation. When statutes are difficult to interpret, the courts
must temporarily take up government office. Is it at all surprising
that this rarely takes the form of the more restrained governmental
and bureaucratic style of serving justice? Why would the courts,
when faced with ambiguous legislation, choose to apply "what
parliament best intended," when they are by nature part of
the "independent" judiciary, committed to providing
unbiased, and more importantly, unpolitical, decisions imbued
with the hundreds of years of legalistic law school indoctrination?
In all fairness, however, when legislation is unclear it is reasonable
to assume that both systems of justice can fall victim to their
greatest shortcomings, that polar distinctions between the two
methods of legal practice will be magnified, and the "ideal"
types, accompanied by all their ugly features, will stand out
in stark relief.
According to Koepfler, the "diseases" of legislation
are ambiguity and vagueness. Ambiguity, he argues, is the state
of dual-meaning where the courts must choose between two possible
interpretations. It includes syntactical, (when it is unclear
who "that person" is referring to in a section of legislation)
semantic, (when committing a crime "together with" an
indecent assault) and contextual ambiguity (it is a crime when
you communicate via telephone, telegraph, radio, or "otherwise"
(where otherwise would depend on the context established formerly)).
Vagueness, on the other hand, is simply an uncertainty or and
undefined "degree" of a prohibited behaviour, such as
"undue" exploitation, or "gross" indecency,
which are both left up to the courts to discover.
When the statutes "are" left up to the courts to discover,
is the Inquisitorial system any different in its interpretation
than the adversarial system? First, does the Adversarial system
favour the defence? On the surface, it would appear that adversarial
courts provide greater freedom and opportunity for the defence
to stake its rights claims. For example, lawyers can confuse witnesses,
catch them off guard, administer leading questions, or even "coach"
them into assuming the proper demeanor while testifying (Cohen
1977), all of which, regardless of overruling, can have significant
effects on the jury's perception of witness-credibility. Rules
of evidence prevent the prosecution from fully pursuing all facts,
and rules against self-incrimination help protect the defence
from disclosing potentially harmful statements. Cohen goes on
to say with authority that "the onus of proof has been shifted
by legislation to the accused" (Cohen 1977:167).
However, there are equally compelling arguments that state otherwise.
Regarding accused-rights, documented evidence suggests that it
is often up to the defence attorney to secure his or her client's
procedural rights in a due-process court. Procedural rights, such
as rules of evidence and bullying witnesses, are, according to
Cohen (1977), more often breached than followed. In addition,
because the judge is supposed to be impartial and neutral, acting
merely as a "referee" over the battle floor below him,
he is not compelled to come to the aid of a floundering defence
or prosecution, unless there is a clear indication of skills-discrepency
between in which allowing the case to proceed would constitute
"unfairness." Instead, he stands aside, and lets the
lawyers "duke it out," passing the torch of of Rights
Protector to the litigants.
Shifting from the prosecution to the judiciary, judges in common
law systems are notoriously reluctant to reopen appeals that have
long expired their eligibility dates. There are strict guidelines
as to what should and what should not be reconsidered by judges
overseeing appeal cases, and this undoubtedly has an effect on
the number of convictions that could potentially be ruled out
On the other side of the argument, does the Inquisitorial system
favour or disfavour the defence? At its very best, (and this point
must be emphasized), the Inquisitorial system does not concern
itself with complicated and sometimes arbitrary rules of evidence.
It does not allow defence to withhold testimony, and challenges
both the accused and the accused's witnesses to fully admit all
facts, interpretations, and explanations of the incident. From
this it appears that any biased is seriously slanted in the direction
of the Crown, not the defence. Considering the growing evidence
on judge-impartiality, it is reasonable to assume that speculation,
bias, and personal socialization experiences may all have a much
greater effect when exercised in the Inquisitorial system rather
than the Adversarial system.
Echoing above-mentioned points on the failure of civil rights
legislation to succeed in an adversarial context, Young (1997)
argues that the Canadian Charter of Rights and Freedoms does not
mix well with the adversarial system precisely because clients
must rely on counsel to protect them from court injustice. In
fact, procedural rights are looked upon with disdain by judges,
who see them as diversions from "real" court justice,
and who may actually impose "obstacles" in the path
of lawyers attempting to attain them (Young 1997).
In summary, if this paper produces more questions than it does
answers, it is because it is too simplistic to say that an ideal
inquisitorial system may result in higher false-imprisonment rates
than an ideal adversarial one. The legal system is a complex battleground
of opposing interests and competing interpretations, all operating
in a dynamically changing environment cruelly responsive to the
needs of powerful organizations, individuals and lobby groups.
Additionally, in the future the two ideal types of legal systems
may be further blurred in distinctions, and result in a fusion
of forms that may culminate in something completely different
than what we now know of today. Given the conservative nature
of the court system, this change is unlikely to be dramatic, but
it is nevertheless a possibility.