The United States uses two different approaches to finding the facts in legal
proceedings. The civil and criminal courts use an adversarial approach, and
administrative law systems (state and federal agencies) use an inquisitorial
approach. Several other countries use the inquisitorial approach in their courts.
In both systems the opposing attorneys are charged with fighting for their
clients; the difference is in the role of the judge.
The United States uses the adversarial system in its courts. The opposing
attorneys have primary responsibility for controlling the development and
presentation of the lawsuit. The attorneys may not lie but have no duty to
volunteer facts that do not support their client’s case. The judge acts as a
referee, seeing that the rules of civil procedure are followed, especially the
rules of evidence that concern the information that the jury is allowed to see.
Neither the judge nor the jury is expected to have any special knowledge of
the matters before the court. They are to base their judgment only on the
materials presented by the attorneys. In many cases the attorneys will ask
that persons with knowledge of the matter before the court be struck from the
jury panel for fear of bias. The premise of the adversarial system is that each
attorney, through discovery and courtroom confrontation, will flush out the
facts concealed by the opposing side. The judge’s role is to exclude
questionable information, but the judge has little power to bring out
information that both sides’ attorneys choose to conceal.
In an inquisitorial system, the judge may question witnesses and inquire into
the presentation of the case and its underlying facts. The judge may be an
expert in the subject matter and may also have independent staff to
investigate the case. There is less emphasis on excluding evidence, but the
judge will tell the jury (if there is one) which evidence to ignore and which to
give special credence. This gives the judge the ability to control the case and
to ensure that justice (in a societal rather than a personal sense) is done. The
attorneys in an inquisitorial system still endeavor to present the facts of a case
in the light most favorable to their clients, but they are not permitted to
withhold facts that are material to a case.
Supporters of the adversarial system argue that the competition between the
opposing attorneys is a better guarantee of truth than inquiries by an impartial
judge. This ideal is seldom achieved. In many cases, particularly those that
involve complex or technological or scientific issues, truth becomes secondary
to the theater presented by an effective, well-financed advocate. This is an
especially difficult problem in criminal law. Most criminal defendants are poor
and cannot afford expensive trial preparation. Even when the state provides an
attorney to an indigent defendant, that attorney is usually not provided with
enough money to hire experts and to properly prepare the case. It is only in the
high profile cases such as the Oklahoma bombing case that the state really
pays enough to the appointed counsel to allow the level of preparation and
presentation afforded to wealthy defendants.
The greatest weakness of the adversarial system is in the resolution of complex
disputes involving scientific or statistical evidence. The evidence in such
disputes cannot be effectively evaluated by a judge and jury with no
knowledge of the underlying subject matter or scientific analysis in general.
This makes the litigation of medical malpractice and other technical medical
care cases, such as allegations that drugs or biomaterials are toxic, very
problematic. It is for this reason that federal regulatory agencies that deal with
technical matters use an inquisitorial method with expert judges and staff.
