Criminal Procedure

I

Introduction

Criminal Procedure, body of law regulating the inquiry into whether a person has violated criminal law. Criminal procedure governs the investigation of crimes; the arrest, charging, and trial of accused criminals; and the sentencing of those convicted (found guilty of a crime). It also regulates the convicted person’s possible appeal for review of the trial court’s decision.

II

Judicial Systems

Legal systems based on the common law tradition, such as those in England, Canada, and the United States, are typically contrasted with civil law systems, which are found in many Western European countries, much of Latin America and Africa, and parts of Asia. Civil law and common law systems have entirely different approaches to criminal procedure. Most countries with civil law systems use what is known as the inquisitorial system. Common law countries use what is called the adversarial system.

A

Inquisitorial System

The inquisitorial process is characterized by a continuing investigation conducted initially by police and then more extensively by an impartial examining magistrate. This system assumes that an accurate verdict is most likely to arise from a careful and exhaustive investigation. The examining magistrate serves as the lead investigator—an inquisitor who directs the fact-gathering process by questioning witnesses, interrogating the suspect, and collecting other evidence. The attorneys for the prosecution (the accuser) and defense (the accused) play a limited role in offering legal arguments and interpretations that they believe the court should give to the facts that are discovered. All parties, including the accused, are expected (but not required) to cooperate in the investigation by answering the magistrate's questions and supplying relevant evidence.

The case proceeds to trial only after completion of the examining phase and the resolution of factual uncertainties, and only if the examining magistrate determines that there is sufficient evidence of guilt. Under the inquisitorial approach, the trial is merely the public finale of the ongoing investigation. At this point, the accused assumes the burden of refuting the prima facie (apparent) case of guilt developed in the examining phase. Critics argue that the inquisitorial system places too much unchecked power in the examining magistrate and judge, who both investigate and adjudicate (legally determine) the case.

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B

Adversarial System

In a common law system, an adversarial approach is used to investigate and adjudicate guilt or innocence. The adversarial system assumes that truth—that is, an accurate verdict—is most likely to result from the open competition between the prosecution and the defense. Primary responsibility for the presentation of evidence and legal arguments lies with the opposing parties, not with a judge. Each side, acting in its self-interest, is expected to present facts and interpretations of the law in a way most favorable to its interests. The approach presumes that the accused is innocent, and the burden of proving guilt rests with the prosecution. Through counterargument and cross-examination, each side is expected to test the truthfulness, relevancy, and sufficiency of the opponent's evidence and arguments.

The adversarial system places decision-making authority in the hands of neutral decision makers. The judge ascertains the applicable law and the jury determines the facts. The system emphasizes procedural rules designed to ensure that the contest between the parties is a fair fight. Critics of the adversarial approach argue that the pursuit of winning often overshadows the search for truth. Furthermore, inequalities between the parties in resources and in the abilities of the attorneys may distort the outcome of the adversarial contest.

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