The two main systems of law are common law and civil law. Both systems rely on prosecution and defense attorneys, but have different procedures when a case goes to trial. Common law, which is used in Canada and is derived from the English model, is adversarial. Opposing sides present their case before a judge who acts as an impartial arbiter. Civil law, used most notably in France, is inquisitorial. The judge takes a more active role in helping police prepare evidence, directly questions witnesses and is central to determining the guilt or innocence of the accused. Unlike an adversarial system, there is no trial by a jury of an accused’s peers in an inquisitorial system.
To analyze the strengths and weaknesses of the adversarial system, it
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The adversarial system assumes that each attorney’s self-interest will drive them to uncover the truth for the jury. But unfavourable evidence will sometimes be omitted, possibly leaving the truth or parts of the truth to be buried.
• Unlike the inquisitorial system where the judge is involved in producing evidence, in the adversarial system, each party is responsible for their own case, including the disclosure of evidence, researching legal precedent and arranging expert testimony. This gives every individual access to the legal system. But costs can result in an uneven playing field, with the party with the most money hiring the best lawyers and paying for the best expert testimony.
• Victims have long argued that the adversarial system does not take into consideration victims interests, even though victims have a direct interest in the outcome of criminal cases. But the court can give third-parties, including victims, intervener status which allows these parties to adjudicate their rights, and have their interests heard.
• Juries are largely made up of laypersons, with the risk of becoming confused by expert