Inquisitorial system

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An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used primarily in countries with civil legal systems, such as France and Italy, or legal systems based on Islamic law like Saudi Arabia,[1] rather than in common law systems.

Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors or infractions, such as minor traffic violations. The distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common-law system. Some legal scholars consider inquisitorial misleading, and prefer the word nonadversarial.[2] The function is often vested in the office of the public procurator, as in China, Japan, and Germany.


In an inquisitorial system, the trial judges (mostly plural in serious crimes) are inquisitors who actively participate in fact-finding public inquiry by questioning defense lawyers, prosecutors, and witnesses. They could even order certain pieces of evidence to be examined if they find presentation by the defense or prosecution to be inadequate. Prior to the case getting to trial, magistrate judges (juges d'instruction in France) participate in the investigation of a case, often assessing material by police and consulting with the prosecutor.

The inquisitorial system applies to questions of criminal procedure at trial, not substantive law; that is, it determines how criminal inquiries and trials are conducted, not the kind of crimes for which one can be prosecuted or the sentences that they carry. It is most readily used in some civil legal systems. However, some jurists do not recognize this dichotomy, and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.

In an adversarial system, judges focus on the issues of law and procedure and act as a referee in the contest between the defense and the prosecutor. Juries decide matters of fact, and sometimes matters of the law. Neither judge nor jury can initiate an inquiry, and judges rarely ask witnesses questions directly during trial. In some United States jurisdictions, it is common practice for jurors to submit questions to the court that they believe were not resolved in direct or cross-examination. After testimony and other evidence are presented and summarized in arguments, the jury will declare a verdict (literally: "the spoken truth") and, in some jurisdictions, the reasoning behind the verdict. But discussions among jurors cannot be made public except in extraordinary circumstances.


In adversarial systems, the defendant may plead "guilty" or "no contest," in exchange for reduced sentences, a practice known as plea bargaining, or a plea deal, which is an extremely common practice in the United States. In theory, the defendant must allocute or "voice" his or her crimes in open court, and the judge must believe the defendant is telling the truth about his or her guilt. In an inquisitorial system, a confession of guilt would not be regarded as ground for a guilty verdict. The prosecutor is required to provide evidence supporting a guilty verdict. But this requirement is not unique to inquisitorial systems, as many or most adversarial systems impose a similar requirement under the name corpus delicti.


Until the development of the Catholic Medieval Inquisition in the 12th century, the legal systems used in medieval Europe generally relied on the adversarial system to determine whether someone should be tried and whether a person was guilty or innocent. Under this system, unless people were caught in the act of committing crimes, they could not be tried until they had been formally accused by their victim, the voluntary accusations of a sufficient number of witnesses, or by an inquest (an early form of grand jury) convened specifically for that purpose. A weakness of this system was that, because it relied on the voluntary accusations of witnesses, and because the penalties for making a false accusation were severe, victims and would-be witnesses could be hesitant to make accusations to the court, for fear of implicating themselves. Because of the difficulties in deciding cases, procedures such as trial by ordeal or combat were accepted.

Beginning in 1198, Pope Innocent III issued a series of decretals that reformed the ecclesiastical court system. Under the new processus per inquisitionem (inquisitional procedure), an ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, an ecclesiastical court could summon and interrogate witnesses of its own initiative. If the (possibly secret) testimony of those witnesses accused a person of a crime, that person could be summoned and tried. In 1215, the Fourth Council of the Lateran affirmed the use of the inquisitional system. The council forbade clergy from conducting trials by ordeal or combat.



The first territory to wholly adopt the inquisitional system was the Holy Roman Empire. The new German legal process was introduced as part of the Wormser Reformation of 1498 and then the Constitutio Criminalis Bambergensis of 1507. The adoption of the Constitutio Criminalis Carolina (peinliche Gerichtsordnung of Charles V) in 1532 made inquisitional procedures empirical law. It was not until Napoleon introduced the code d'instruction criminelle (French code of criminal procedure) on November 16, 1808, that the classical procedures of inquisition were ended in all German territories.

In the development of modern legal institutions that took place in the 19th century, for the most part jurisdictions codified their private law and criminal law, and reviewed and codified the rules of civil procedure as well. It was through this development that the role of an inquisitorial system became enshrined in most European civilian legal systems. However, there exist significant differences of operating methods and procedures between 18th century ancien régime courts and 19th-century courts. In particular, limits on the powers of investigators were typically added, as well as increased rights of the defense.

It is too much of a generalization to say that the civil law is purely inquisitorial and the common law adversarial. The ancient Roman custom of arbitration has now been adapted in many common-law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as those in Scotland, Quebec, and Louisiana, while the substantive law is civil in nature and evolution, the procedural codes that have developed over the last few hundred years are based upon the English adversarial system.

Modern usage[edit]


The main feature of the inquisitorial system in criminal justice in France, and other countries functioning along the same lines, is the function of the examining or investigating judge (juge d'instruction), also called a magistrate judge. The examining judge conducts investigations into serious crimes or complex inquiries. As a member of the judiciary, he or she is independent and outside the province of the executive branch, and therefore separate from the Office of Public Prosecutions, which is supervised by the Minister of Justice.

Despite high media attention and frequent portrayals in TV series, examining judges are active in a small minority of cases. In 2005, there were 1.1 million criminal rulings in France, while only 33,000 new cases were investigated by judges.[5] The vast majority of cases are therefore investigated directly by law enforcement agencies (police, gendarmerie) under the supervision of the Office of Public Prosecutions (procureurs).


The judge questions witnesses, interrogates suspects, and orders searches for other investigations. Their role is not to prosecute the accused, but to gather facts, and as such their duty is to look for any and all evidence, whether incriminating or exculpatory (à charge et à décharge). Both the prosecution and the defense may request the judge to act, and may appeal the judge's decisions before an appellate court. The scope of the inquiry is limited by the mandate given by the prosecutor's office: the examining judge cannot open a criminal investigation sua sponte.

In the past the examining judge could order committal of the accused, this power being subject to appeal. However, this is no longer authorized, and other judges have to approve a committal order.


As a result of judicial investigation and defendants being able to have judicial proceedings dismissed on procedural grounds during the examining phase, cases where the evidence is weak tend not to reach the trial stage. Conversely, the guilty plea and plea bargaining were until recently unknown to French law. They are accepted only for crimes for which the prosecution seeks a sentence not exceeding one year imprisonment. Therefore, most cases go to trial, including cases where the prosecution is almost sure to gain a conviction. In countries such as the United States, the latter cases would be settled by plea bargain.

Other types[edit]

Administrative justice[edit]


Inquisitorial tribunals within the United States[edit]

Certain administrative proceedings within some common-law jurisdictions in the United States may be similar to their civil law counterparts but are conducted on a more inquisitorial model. For instance tribunals dealing with minor traffic violations at the New York City Traffic Violations Bureau are held before an adjudicator, who also functions as a prosecutor. They question witnesses before rendering judgements and setting fines.

These types of tribunals or boards function as an expedited form of justice, in which the state agents conduct an initial investigation and the adjudicator's job is to confirm these preliminary findings through a simplified form of procedure that grants some basic amount of due process or fundamental justice. The accused party has an opportunity to place his or her objections on the record.


  1. ^ Dammer ,Harry R. and Albanese Jay S.; Comparative Criminal Justice Systems, p. 149 ISBN 128506786X
  3. ^ "FindLaw's United States Seventh Circuit case and opinions". Findlaw.
  4. ^ See:


Further reading[edit]