Indeed, and the American system is based on the fantasic English common law developed over the 1000 years prior to there being an America. The world owes much of the concepts that are emblematic of an advanced justice system, protective of the rights of citizens and the accused, to the English common law.Rum wrote:pErv is right. But it is wrong to assume that a more 'robust' approach to defending yourself from nasty people is somehow carried over into the justice system. The adversarial system has its weaknesses, but it also has one major strength which magistrate Inquisition does not and that is the presumption of innocence. The British system (which much of the world has copied) would rather see ten guilty people go free than one innocent person get locked up.
In the more general argument about adversarial vs. inquisitorial systems, the weaknesses of the inquisitorial systems are often glossed over if not completely ignored. It ends up boiling down to people simply opining that being "adversarial" is not as good or nice as "inquiring" after things. But, that's not the keys to either system. When we had this discussion in another thread, banging back and forth about the two general types of systems, one thing that was revealed was that folks like Dutchy seem to oppose the accused having the right to defend themselves, and to cross examine the witnesses with their own counsel being free to manage the defense as they see fit, and they think a more fair result comes about when the State is in charge, and the judge does the lion's share of the inquiring. I've not found many people that think that they, if they were an accused in a criminal prosecution, would rather put their life and liberty in the hands of the State and the Judge than have a confidential advocate who can test the evidence and challenge the witnesses for them, and represent the interest of the accused.
Saying that this is about "the truth" is a simplistic way to look at it, because in both systems, the "truth" can normally not be known with certainty. What we are dealing with is evidence and burdens of proof. So the best we can do is try to eliminate "reasonable doubts." Also, the "truth" about what happened - who did what to whom and when and how and why - are not the only questions -- part of the job of the defense is to determine the level of culpability, the degree of crime, etc. So, the same "truth" can be found to be a crime, not a crime, or one of several degrees of crime, depending on the circumstances. Does anyone really trust a bureaucrat paid by the State to be there trying to advocate the best possible result for the defendant? Does the Judge? Are we to believe that Dutch judges are as apt to skip meals and stay up late to chase a lingering doubt or thorny question of fact or law as an accused's own counsel Not bloody likely.
This is not to say that the systems of criminal justice do not work, and of course, over the past few decades, some "anglo-saxon" protections for the criminal defendant - like, for example, the presumption of innocence and right not to actually be a witness against yourself, have crept into the civil law countries on the continent - and as such, the inquisitorial system is in some countries much improved from what it was decades ago. I'm not claiming any sort of "superiority" of the British or American systems over European systems - such questions are complex and also partly subjective. What I object to is the blithering balderdash that Dutchy invariably spews, claiming superiority while misrepresenting the system he seeks to criticize.
