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Journal of the Institute for the Study of Legal Ethics

Publication Date

1-1-1999

Introduction

The topic that Dean Rabinowitz and the organizers of this conference asked Professor Freedman and myself to discuss is the relative merits of the adversary and inquisitorial systems in the administration of criminal justice. I hope that it will not seem ungracious of me, having accepted the invitation, to say at the outset that there are no such systems. Rather, there are diverse criminal processes, which incorporate a variety of more or less discrete procedures, each of which is more or less adversarial or inquisitorial. By adversarial I mean simply that the conduct and control of a procedure is primarily the responsibility of lawyers representing the state and the defendant. They are committed to opposing sides of the case and, in that sense, are adversaries. By inquisitorial, I mean that the conduct and control of a procedure is primarily the responsibility of a public, magisterial official, a judge who is committed to neither side, but is positioned, as it were, at the center. Nothing more than that. So I shall ask you to put out of your minds the Spanish Inquisition of the fifteenth century, Dostoyevsky's Grand Inquisitor, and all of that, and to put out of your minds also the notion that we have a single choice to make, between two systems: Take one or the other and swallow it whole. Instead, we have to choose a particular procedure for various aspects of the criminal process, according to which best serves our purpose, choices that are not unavoidably bundled together into uniformly adversarial or inquisitorial packages.

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