Comparative Criminal Law: Workgroup 1 (2016/2017)

Comparative criminal law

Working group 1

Assignment 1

According to Brants & Franken, the central issue determining whether a criminal process is (predominantly) inquisitorial or adversarial, is the conception of the ideal search for the truth (p. 6 literature reader). Weigend’s article also elaborates on the truth-finding in both systems.

1. Describe the inquisitorial truth-finding conception, explaining also that the term ‘inquisitorial’ is closely related to the word ‘inquiry’.

Answer to question 1a:

Brants & Franken’s article: The state is best entrusted with truth finding. The police is subordinate to the public prosecutor and in some cases an investigating judge.

Weigend’s article: The inquisitorial system entrusts an authoritative, neutral law officer with collecting relevant evidence, a process that includes the interrogation of suspects and witnesses. In the inquisitorial system the suspect is the subject of the investigation. He only has a few rights. He may be interrogated, this is why the term inquisitorial is closely related to the word ‘inquiry’.

Inquiry means that someone asks a question intended to get information about someone or something.

This also happens in the inquisitorial system, because witnesses and suspects can be interrogated. This is to get information on the suspect.

• The state is best suited to find the truth.
• Focus on the pre-trial state, because the dossier is made and this is handed over at the trial. The suspect is subject to the investigation. The dossier is the only file that can be used at the trial.
• Focus on the best truth.

2. Describe the adversarial truth-finding conception, explaining also that the term ‘adversarial’ is closely related to the word ‘adversary’.

Answer to question 1b:

Brants & Franken’s article: The criminal process (oral trial) is conceived of as a struggle between parties in which the individual defendant fights his own corner.

Weigend’s article: The adversarial system relies on opposing parties coming forward with their competing versions of the truth, challenging each other’s accuracy, and thereby ultimately bringing about a composite picture of or approximating the truth. This is also why the term adversarial is closely related to the word ‘adversary’, which means ‘enemy’, or ‘opponent’.

You could consider the parties as each other’s enemies or opponents, because they have a different vision of truth and they try to challenge each other’s accuracy.... Interested? Read the instructions below in order to read the full content of this page.