ADVERSARIAL AND INQUISITORIAL PROCESSES
there are two procedural systems for delivering justice:
the adversarial and the inquisitorial.
We may also refer to them as the two models of justice systems. The distinction drawn between the two systems focuses on the functions performed by the judge and the extent of the role played by him in the legal proceedings.
The distinction also examines the roles played by lawyers in the two systems. As an initial statement, we may say that in a typical inquisitorial proceeding, the trial is dominated by a presiding judge, who determines the order in which evidence is taken and who evaluates the content of the gathered evidence……..
without being constrained by strict rules in that respect.
RESPONSIBILITY FOR MARSHALLING EVIDENCE FOR TRIAL.
In an adversarial model, responsibility for gathering evidence rests with the parties – police, and defense—and an independent evaluation of that evidence by a neutral judge is left to the trial. In an inquisitorial model, criminal investigation, at least in serious cases, is typically overseen by either an “independent” prosecutor or an examining magistrate(in France termed a “judge instruction”). The prosecutor or examining magistrate can seek particular evidence; direct lines of inquiry favorable to either prosecution or defense; interview complainants, witnesses, and suspects; and ultimately determine whether there is sufficient evidence to take a case to trial.
RELATIVE FAITH IN THE INTEGRITY OF PRE TRIAL PROCESSES.
An adversarial model is based on mistrust in the reliability of the prosecution evidence. It proceeds on the assumption that mistaken verdicts of guilt can best be avoided by allowing the defense to test and counter that evidence at the trial itself, largely in the manner in which it chooses to do so. The trial is the exclusive forum for seeking out and determining the truth-or perhaps more accurately, for determining whether there is a reasonable doubt as to guilty.
An inquisitorial model has faith in the integrity of pre-trial processes (overseen by the prosecutor or examining magistrate) to distinguish between reliable and unreliable evidence; to detect flaws in the prosecution case, and to identify evidence that is favorable to the defense. In many jurisdictions, this culminates in the preparation of a “dossier” for the trial court that outlines all aspects of the case and forms the basis for the trial itself. Pre-trial processes are therefore an indispensable part of the process for seeking out the truth. By the time a case reaches trial, there is a greater presumption of guilt than in an adversary model.
THE EXTENT OF DISCRETION.
Because in an adversarial model decision-making is left largely in the hands of the parties, there is a recognized prosecutorial discretion not to proceed with the case even when there is evidence to support a criminal charge. There is also an ability, recognized in statute, for the defendant to plead guilty and avoid a trial.
In an inquisitorial model, discretion is much more limited. In some jurisdictions, “the legality principle” dictates, in theory, if not in practice, that prosecution must take place in all cases in which sufficient evidence exists of the guilty of the subject. Moreover, there was traditionally no such thing in civil law jurisdictions as a plea of guilty. Regardless of the accused’s wishes, trial processes continued, albeit on a sometimes more accelerated path.
THE NATURE OF THE TRIAL PROCESS.
In an inquisitorial model, the conduct of the trial is largely in the hands of the court. With the dossier of the evidence as to its starting point, the trial judge determines what witnesses to call and the order in which they are to be heard, and assumes the dominant role in questioning them. Cross-examination as we know it does not exist, although the parties and their counsel are generally permitted to ask questions. There are far fewer rules of evidence and much more information available to the court at the outset. The offender s criminal history for example may be read to the court before the trial begins.
THE ROLE OF THE VICTIM.
On the other hand, victims have a more recognized role. In some jurisdictions, they have a formal role in the pre-trial investigation stage, including a recognized right to request particular lines of inquiry or to participate in interviews by the examining magistrate. At the trial itself, they generally have independent standing. Although this partly to claim compensation, they are sometimes also permitted to ask questions of witnesses.
The criminal procedure is a comprehensive and exhaustive procedural law for conducting a criminal trial in Pakistan and it covers among other things the manner for collection of evidence, examination of witnesses, interrogation of accused arrests sage courts bail process of a criminal trial method of conviction and the rights of the accused of a fair trial.
ACTUS REUS (GUILTY ACT).
A physical act (or unlawful omission) by the defendant; in reality, a collection of elements other than the mental element, collectively referred to as the actus reus.
MENS REA (GUILTY MIND).
The state of mind or intent of the defendant at the time of his act.
Physical activity and the mental state existing at the same time. It is important to note that the burden of proving these elements beyond a reasonable doubt rests upon the prosecution. The position in Islamic Law is similar. There may be cases usually cases of strict liability and will be discussed under that topic.
BURDEN OF PROOF
the general rule for criminal law the general rule is that the prosecution has the burden of proof, and the burden is to prove guilt “beyond a reasonable doubt” this springs from another rule; everyone charged with a criminal offense shall be presumed innocent until proven guilty. This is related to the due process article of the constitution. Thus in 1970, the U.S. supreme court declared that the constitution required the reasonable doubt rule in a criminal case.
We have mentioned this here as the prosecution is required primarily to prove the elements of the case discussed below. The detail will be studied in individual crimes and in criminal procedure.
It may be mentioned here that the rule may apply to certain types of juvenile delinquency proceedings, even though they may not be classified as criminal. Further, it may be that despite the strict requirement of the prosecution proving guilt beyond the reasonable doubt courts may require defendants to prove such issues as self-defense, duress, insanity, entrapment, and mistake.