THE ADVERSARIAL AND INQUISITORIAL SYSTEM

THE ADVERSARIAL AND INQUISITORIAL SYSTEMS

Solution of the court

• Pierre Falcone and Arcadi Gaydamak coped 6 years of prison term without remission

• Marchiani, Pasqua and Mitterrand received a 3 years suspended sentence

• Fine : €375 000

INTRODUCTION

Procedure

III. FAMOUS CASES

"ANGOLAGATE" CASE

The Facts :

European law ≠ Common Law

• 2008 : 42 individuals appeared before the criminal court of Paris
• Trial publicized and generated tensions with Angola

Inquisitorial system ≠ Adversarial system

June 12, 1994

II. APPLICATION OF THE SYSTEMS

• Eleventh House of the Criminal Court of Paris

• Nicole Brown Simpson and her boyfriend Ronald Goldman were fatally stabbed

• Inquisitorial system

• "O. J." Simpson her « ex husband » has been accused ran away

Investigations

A list of person an societies payed by Brenco showed up the name of famous personalities :

THE SIMPSON MURDER CASE : « "The people of the state of California v. Orenthal James Simpson "»

I. Presentation of the theories

II. Application of two different systems

III. Famous cases

The facts

Jacques Attali

Charles Pasqua

Jean Charles Marchiani

Jean Christophe Mitterrand

These systems are pure theory none of them exist in their application

1999-2000

7-year investigation

First Step : The Penal Trial

French system : an inquisitorial and adversarial system contradiction getting more important thanks to the European Convention of Human Rights

In total 42 individuals will be accused of involvement

Art 6 :

each people has the right to an equitable process, the right to be defended, and the principle of contradictory

• Most famous barristers :

R. Kardashian and Benjamin Brafman

• Decision in October, 1995 of the L.A. Superior Court : Not Guilty

Pierre Falcone

Arcadi Gaydamak

$ 790 million

Brenco's C.E.O.

Particularities of the French system

I. PRESENTATION OF THE THEORIES

2 different aspects :

- inquisitorial system during the investigation

- adversarial aspect during the judgment

"Beyond a reasonable doubt"

The judgment

BUT : The investigation

Toward an adversarial system...

Judge who leads the debates : not a simple neutral adjudicator

+ Presence of the lawyer

+ Possibility to appeal the decision of the investigating judge

+ Oral debate

Adversarial phase which keeps some inquisitorial elements

http://edition.cnn.com/2015/01/13/us/oj-simpson-trial/

Second Step : The Civil Trial

ADVERSARIAL SYSTEM

FOR

AGAINST

• Guilty of the murder of N. Brown and R. Goldman
• Paid $33,5 Million

HISTORIC AND PHILOSOPHIC TRADITIONS

PROS AND CONS OF EACH SYSTEM

• Equal opportunity to present opinions
• Best impartiality
• Maintain public confidence
• Avoid to make a difference between an unknown person and famous person

• First aim of the DA is to defend his client : not to tell the truth
• Expensiveness
• Harms of the oral procedure
• 10% of the claims get to the trial

"Preponderance of evidence"

https://www.spi0n.com/enfant-10-ans-critique-justice-americaine/

DSK CASE

OR

"CASE OF NEW YORK SOFITEL"

Decision

Déc 2012 :

INQUISITORIAL SYSTEM

Transaction between the parties

AGAINST

FOR

$1.5 Million

French system

American system

• Not really contradictory
• Neither respectable of the fundamental rights
• Inequalities

• Control lies in the hands of the judge
• Reduces the disturbance of the attorneys
• Establish the truth
• Written so reasoned decision
• Private and written aspect : possibility to take a rational decision

The procedure

The Facts

• From the Greek Antiquity up to the Middle Age
• problems generated + influence of the ecclesiastic courts

Adversarial system applied : DSK had to prove his innocence

• Established during the Middle Age in the United Kingdom : "armed duel"
• System developed with transition of urbanization of the society
• 1818 : Judiciary fights abolished and the USA kept this model
• Evolution of the adversarial system with the mentalities and the behaviors

- Ricker Island Prison

- Under House Arrest

Dominique Strauss-Kahn, french politician and economist

• XIIIrd century : replaced by an inquisitorial system

• Numerous TV Shows about DSK
• Assumption of innocence
• Legal costs paid by DSK

accused of attempted rape and sexual assault by Nafissatou Diallo

on the 14th May 2011

• Registered in the royal decrees of the monarchy

• Evolution of the conditions

The adversarial system

• The prosecution proves defendant guilty before neutral judge or jury
• "Battle between lawyers"
• The judge is here to arbitrate

The inquisitorial system

• Judge actively involved in proof taking by investigating the facts of the case
• Accentuates between the penal law and the civil law
• The "examining magistrate"

PRODUCE EVIDENCE

Inquisitorial system

Adversarial system

Judge : 
exculpatory evidence and burden of proof

Defendant : exculpatory evidence

Prosecutor : burden of proof

PROCEDURAL SYSTEM

Adversarial system

PENALTY ACCUMULATION

COMPARISON

1. A complain is submitted

2. The police transfers the complain to the district attorney

3. Preliminary hearing : arraignment

4. Judge's decision after read the case:

INQUISITORIAL SYSTEM

ADVERSARIAL SYSTEM

Inquisitorial system

Substantive conception

Neutral conception of the judge

Adversarial system

Inquisitorial system

System of releasing on bail

1. Police's role more important : questioning organized

2. Creation of a case

3. Transfer of the case to the D.A.

4. Offender put in temporary detention or under judiciary control

5. Beginning of the process

6. Popular jury decides

Temporary detention

• Written procedure

• Oral procedure

"plea bargain" : results in a plea agreement between the prosecutor and defendant

Offender judged by

the Grand Jury :

indictment or dismissed charges

• Reflects the truth

Accumulation of sentences

• Contradictory

Principle of the "assimilation of penalties"

Avoids a trial.

• Non contradictory

• Public : ensure the loyalty

• Secret procedure

5. Process in a federal supreme court

6. Evidence given by the parties to the judging panel

7. Sentence of the court