inside prison

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 as false.

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.



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