Administrative Adjudications versus Trials
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.
This is discussed more fully in the section on Administrative Law.