7.11.2 Quest for Truth
Given this historical reconstruction, legal scholars build their adversarial and
nonadversarial dichotomy by emphasizing one or more of the contrasting features
of the two models. Certainly, the watershed cannot be seen in a different tendency
of the two systems towards the discovery of the truth. It would be wrong to
characterize the inquisitorial system as the only model striving for the truth, with
the adversarial system simply aiming at the solution of a dispute. While it leaves the
responsibility to adduce the evidence and make their arguments in court to the
parties, this does not make the adversarial model of criminal justice similar to a
game, where the aim is winning rather than finding out what really happened. Both
models attach importance to finding the truth of the criminal allegations. Adversar-
ial and inquisitorial systems are merely based on different ways to discover the
truth; they display two different fact-finding logic. An inquisitorial system
empowers a neutral investigator to collect all relevant evidence available, while
an adversarial system relies on the agonistic approach of the parties and on the
assumption that the clash of opposing views will show which of the two versions is
more credible. The risk that the parties of an adversarial dispute will not offer the
judge some crucial information to solve the case is equivalent to the risk that the
active judge of the inquisitorial system might overlook some crucial information. In
the adversarial model, the parties will present evidence and arguments favorable to
their position, but they will equally adduce all the available elements against the
reconstruction of the other party. Both models equally strive for the discovery of the
truth, and they both consider it a miscarriage of justice when the outcome of the
criminal process reaches a factual conclusion that later proves different from what
happened in reality.
7.11.3 Hybrid Contemporary Systems
Furthermore, it should be kept in mind that the opposition between adversarial and
inquisitorial systems can hardly be used to characterize contemporary systems.
Several of the historical traits of these systems have now disappeared or have been
mitigated. Common law countries have centralized the duty of prosecution on state
authorities, and private prosecution remains only a theoretical possibility. In several
continental countries, the investigative judge has been abolished, and where he
survived, his role is mostly limited to the investigations on the most serious crimes.
Nowadays, in most continental countries, the burden of the investigations for the
majority of crimes lies on the public prosecutor and the police.
Juries Some continental countries have introduced jury systems or the cross-
examination of witnesses, and in the majority of them a conviction cannot be
based on investigative evidence alone. Meanwhile, a mandatory jury system is in
place in England only for the most serious offenses (so-called indictable offenses),
while for the others it has been abolished or is left to the choice of the defendant.
7 Criminal Law 149