A Comparative Examination of the Purpose of the Criminal Justice System
Ashburn Institute Transnational Law Journal, Vol. 1, 2010
33 Pages Posted: 10 Feb 2010
Date Written: February 9, 2010
A recent Gallup poll found that only 20% of Americans have a substantial amount of confidence in our criminal justice system, a 14% decline from only four years ago. Since the legitimacy of our criminal justice system depends upon the public’s confidence in that system, this is matter of great concern. As a result of my acquaintance with both our system and the inquisitorial system used in Europe and elsewhere, I am aware of the specific areas that lead the American public to distrust our process and the way in which those areas are dealt with in the inquisitorial system. As is noted in this article, a fundamental difference arises from the fact that, as one distinguished American author has noted, our adversarial system is based on the “fight theory” while the inquisitorial system is based on the “truth theory.” The article identifies each of the areas in our system that can give rise to public mistrust, such as plea bargaining, constitutional questions, selection and training of judges, prosecutorial discretion, and our trial process. I then describe the inquisitorial approach to each issue, and point out how that approach is less troublesome to the public and better promotes the ascertainment of truth. I also discuss why there is a disconnect between our judges and lawyers who value our system highly and the great majority of Americans who distrust the process. I then review what we can learn from the inquisitorial process that might assist us in restoring Americans’ faith in our criminal justice system.
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