Adversary or Inquisition?

A question by Andy B.:

"Do you believe in the 'adversary system'--that the most effective way to get at the truth is to have advocates for each side fight it out? Or would you prefer a system where the entire court is devoted to the truth first and foremost?
. . .
I've never been convinced that the adversary system is really the way to go. Maybe it's one of those things that in practice is better than the alternatives (worst form except for all the others). What do you think?

Yes, I favor the adversary system over inquisitional systems. I think that the theory of the inquisitional system is alluring the same way the theory of communism is alluring. It's a great theory but I do not trust the reality of it.

That's not to say that one of the systems is more corrupt than the other. All systems tend to fail if corruption reigns. Nor would most see a marked change if the system were inquisitional. In fact most Defendants walk into court, plead guilty and accept punishment. I suspect that plea agreements and pre-sentence reports function roughly the same way that an inquisition would.

However, if someone asserts that they "did not do this thing" I am of a mind that he needs to be in an adversary system. By the time a Defendant arrives in court he has already been judged guilty by the officer, found guilty by whatever lower level authority approves police action (a magistrate in Virginia), been judged guilty by the prosecutor, had whatever version of grand juries and/or preliminary hearings find him guilty, and when he walks into court faces a palpable atmosphere of presumed guilt.¹ This all reinforces what is perhaps the greatest danger in any system::

It is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.²

In an adversarial system there is a person whose role is to keep reminding the judge that the person before him is not just another of the great unwashed masses to be dealt with just as the last 50 were: the Defense attorney. His job is to make the judge realize that the facts (or lack thereof) in this case distinguish this particular person from all the others who have come before and been found guilty. It's his job to keep the system from sinking to the point that all that is seen is "the usual man in the usual place."

Do I think this system perfect? No, just preferable. Defense attorneys can fall into the same "workshop" mentality. The check on that would be a jury. But that's a post for another day.


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¹ At an intellectual level we all realize that everything previous has only been to a "probable cause" standard but the "he's gotten this far, he must have done something" sentiment is strong and it is reinforced in court day after day as guilty people travel through the system.