POLI 330 Lecture Notes - Lecture 12: Tabula Rasa, Inquisitorial System, Adversarial System

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2 Oct 2014
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Lecture 12
Tuesday, October 8, 2013
Investigation stage in a criminal case of an inquisitorial system
There is also an examination stage and both stages are part of the pre-trial stage
Examining stage
oDoesn't exist in the common law adversarial systems
oStage conducted mostly/primarily in writing
oExamining judge who works together with the public prosecutor and defense
to continue to create the written record, go over it
oOutcome – whether to proceed to trial or not
oMain decision maker/person who collects the information and is charged with
making the information is the judge
oProsecutor can decide to give up and withdraw charges
oCan have several discussions between judges and prosecution for judge to ask
for more to make their minds up about how to proceed
oExamining judge is playing an active role in the collection of evidence and
interrogation of witnesses
oCan decide to proceed to trial with the case, depending on whether the
prosecution (principle of compulsory prosecution or principle of opportunity)
oAt the end of the stage, a case goes to trial
Contrasts in criminal procedure between inquisitorial and adversarial procedures
Numerous and major and affect how the trial plays out
Inquisitorial system has fewer rules of evidence
oGoal within the inquisitorial system is to collect as much information as
possible  information will be available to the judge who is the ultimate
decision maker, the lay assessors/jury members, all parties to a case
Idea – different participants in the criminal case will judge for
themselves what kind of information is relevant or not
Will judge with the law in mind as to what information is prejudicial
or not
General principle – the more information the better
Few rules for how you exclude certain pieces of information if they are
found
oAdversarial system has numerous and rigid rules of evidence
Rules that prohibit the use of hearsay evidence, illegal searches
Rules of evidence determine which piece of evidence will make it into
a trial and which will be excluded from consideration
Example – hearsay – rule that says if a certain statement has been
made in oral form, in order for it to be admissible as evidence, you will
have to have other parties to the case to confront and examine the
maker of that statement
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If the maker of that statement is not available, it is hearsay and
cannot be included in the evidence of the trial
Often there are highly controversial cases about how different
statements are excluded from evidence
Example – Jensen case (Wisconsin) – woman was worried her
husband was trying to poison her, she sent letters to her
neighbours, police, son’s teachers about her suspicions before
she died by poison  thought her husband was planning
oSent to various recipients
oWhen she did die, half the information did not make it
to trial because her husband’s defense team managed to
exclude information as hearsay because the maker was
the wife who could not be confronted because she died
oStatements didn't work because there could have been
alternative theory that could have been reached by
considering the evidence
The right to silence for the accused
oLimited in the inquisitorial trials
There is an expectation of cooperation amongst the accused and fewer
guarantees of self incrimination
Innocent parties would have less of a reason to withhold information
Right to silence benefits the guilty parties trying to cover up
information
Plea bargain
oPlea bargain – negotiation between the defense and prosecution where the
defendant admits to a crime in exchange for better terms in the sentence
oNo plea bargain in inquisitorial systems
No point in the trial where you actually enter a plea
No need to stand before the court and declare your guilt/innocence
Confession plays a big role in the trial but its only one part in the big
picture of all the evidence there
If the defendant confesses, it is not an automatic conviction
Doubt the truthfulness of confessions themselves
Prosecutor and judge considers if the confession is reliable and
represents the truth
People could have confessed because of pressure or as a result
of a mental condition that make them want to confess to things
they haven’t done in order to gain notoriety/validation
Plea bargaining is unethical both to the accused who are potentially
innocent and to the victim if the accused is actually guilty
There could be something approximating plea bargaining but that goes
between the judge and the prosecution
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