Adversary vs. Civil Law

The two legal systems in question are the adversary system, most commonly practiced in the United States, and the civil law system, also referred to as the inquisitorial system, most commonly practiced in European countries. Both systems have the same goal; to find the truth. However, each system has a very different path to justice. The adversarial system implies that two parties assume opposite positions in debating the guilt or innocence of an individual. In this scenario, the judge is required to be neutral at the contest unfolding before him or her. The role of the judge in this arrangement is to ensure the trial proceeds according to the procedural rules of trial or due process of law and that evidence entered is done so accordingly.

The basis of this approach in criminal matters in which two sides engage in debate and battle about the guilt or innocence of an accused and since each side wants to win, then the debate will foster a critical look at the issues and the evidence to be examined by both parties. By engaging in this discourse, the truth should emerge as the judge watches on. This means that the roles played on both sides are very distinct. The defense counsel as one adversarial party gather the arguments to defend the client and attacks the credibility and worthiness of the evidence presented. The prosecutor puts forth the arguments on behalf of the state and gathers and presents the evidence pointing that the accused has committed an offense.

The judge is the referee and arbitrator on issues related to clarifying what the law is. The judge does not intervene on any side except where procedural fairness is jeopardized by either party as dictated by the Sixth Amendment. In an inquisitorial system, a judge is involved in the preparation of evidence along with the police and in how the various parties are to present their case at the trial. The judge questions witnesses in depth and can even call witnesses to appear while prosecution and defense parties can ask follow up questions. The judge plays the central role in finding the truth and all the evidence that either proves the innocence or guilt of the accused before the court. The judge takes on the role of prosecutor and judge in the inquisitorial system. Some other major distinctions is that there are no jury trials in an inquisitorial system and a judge can force an accused to make statements and answer questions.

This differs dramatically from the common law and adversarial right not to take the stand in one's own defense. In my opinion, I prefer an adversarial system. I think it does a better job of protecting the rights of those accused of crime than does the inquisitorial system. One of the key reasons for this is the use of juries in an adversarial system. In an inquisitorial system, judges determine the facts, and then make their decision. Often a small number of judges would make that decision, and perhaps even just one man. In contrast, a jury is made up of 12 people, not always which allows for a broader range of experiences and opinions, which ought to secure more consideration of what has been proved. Another weakness of the inquisitorial system is the role that the judges play. Not only do they act as the judge and the jury, they will often act as prosecutors. This is a huge conflict of interest, and is extremely harmful to the accused.

A judge who is also acting as a prosecutor is not going to be unbiased, and will not act as a neutral decision maker. In an adversarial system, however, the prosecutor is separate from the judge, and appears before the judge like any other lawyer. The United State could never use the civil law system because of Constitutional problems. For instance, to avoid putting responsibility for the search of truth in the hands of judicial agents of the state the Sixth Amendment guarantees the right to trial by jury but of course civil law countries generally do not use juries except for certain countries in capital cases. Other rights include the right to effective council; to testify on his/her behalf; to compel the testimony of others; to confront accusers; and the right to cross examination.

The Fifth Amendment privilege of self-incrimination further limits the powers of the states. Good job identifying multiple constitutional problems and pointing out where the protections are found in the Constitution. Case in Point: State of New Mexico v Valdez, 95 N.M 70 (Supreme Ct. of N.M., 1980) underline or italicize case name The defendant in this case, Richard Valdez, had been convicted of armed robbery in a district court. He appealed since a fellow inmate, Richard Garcia, had confessed to the crime in front of his former attorney, Alice Hector, who was a public defender.

Also present during the confession was Garcia’s attorney, a public defender under Hector, the district public defender. This attorney warned Garcia that Hector was not his attorney and any statement Garcia made would be used at the defendant's trial and could be detrimental to his own interests. Garcia repeated his confession to Hector and indicated his willingness to testify on defendant's behalf. Garcia later changed his mind and exercised his Fifth Amendment right refusing to testify. The court upheld an objection to Hector’s testimony of the confession based on attorney-client privilege. Although Ms. Hector was not directly involved in the representation of Garcia, her staff was, and all information obtained by them was thereby imputed to her.