Theoretically a different level of procedural activity is assigned to the judge in adversarial and inquisitorial criminal procedures. The main values of an adversarial judge are neutrality and impartiality. This is a passive role pertaining to the critical decision-making in the process (Goldstein, 1981). The judge in the theoretical inquisitorial procedure is charged with the duty to explore the facts of the crime and therefore enjoys a certain level of involvement in fact finding and procedural regulation (Garner, 1916).
12 - here popular sovereignty is understood in Montesquieu’s way as: people are the source of the
The function of the trial judge in both adversarial and inquisitorial theoretical models can be divided into twp roles. One is related to fact finding activities, and the other is executing procedural judicial functions that influence the criminal charges. Fact-finding judicial functions are usually related to the authority of the judge to call and question the witnesses, the authority to determine the order of evidence presentation, the authority to regulate the witness cross-examination, and examinations of the evidence (Derret, 1968). Judicial functions related to the criminal charges refer to the judicial power to initiate, change, or terminate the criminal charges or the process itself (Miller & Remington, 1969). This group of judicial functions includes the discretion to grant a motion to withdraw or dismiss the charges, to approve the plea agreements, to change the charges, and the ability of the judge to initiate a new criminal procedure.
In theory, the status of the adversarial judge can be described as judicial passivity. Because theoretical adversarial procedure is a competition between equal adversarial parties, the judge plays a role of a neutral arbiter, whose duties include supervision over the process to ensure compliance by the various parties (Goldstein, 1981). The judge in the theoretical adversarial process is required to be neutral and detached from the adversarial interests of the parties. The judicial status is aligned with both the procedural goal of conflict resolution and the accusatorial type of prosecution in the theoretical adversarial model (Stoiko, 2006).
The theoretical inquisitorial model provides the judge with a completely different status. The inquisitorial judge is required to be active in both fact-finding and managing the criminal charges (Garner, 1916). Because the theoretical inquisitorial
process is a tripartite cooperation between the prosecution, defense, and the judge to find the facts of the crime, the active judicial status does not violate the balance between the parties (Juy-Birmann, 2002). This judicial activity in theory corresponds to the inquisitorial type of prosecution and the policy implementation goal of the theoretical inquisitorial procedure (Langbein, 1977).
One of the most fundamental powers common to both the adversarial and inquisitorial theoretical models is the prosecutor’s authority to dismiss the criminal charges (nolle prosequi). In Great Britain and the U.S.A. the criminal procedural law bans the judge from involvement in the process of filing criminal charges. Also, in Great Britain and the United States, criminal law provides a judge with no right to disapprove a recommendation for a nolle prosequi13 from the public prosecutor
(Devlin, 1960; Goldstein, 1974; P. Howard, 1930).
This constraint on judicial power allows a judge to remain neutral and provides the parties with the exclusive ability to terminate the procedure initiated by the complainant (Miller & Remington, 1969). In France and Germany, the criminal law provides the investigating judge with the unconditional power to dismiss the charges during the official preliminary investigation and some authority for the trial judge to decline the prosecutorial request for dismissal (Garner, 1916; Langbein, 1977). In this situation, when the factual basis of the case doesn’t support the prosecutorial decision to dismiss charges, the judge is executing an obligation to attain the truth by any means available (Damaska, 1986).
13 The first American decision Commonwealth vs. Wheeler in 1806 declare that judge has no right or
interest in interfering with prosecutor’s discretion to terminate the nolle prosequi process. This limitation was confirmed by McCarthy v U.S. 394 U.S. 459,467, (1966); Boykin v Alabama, 359 U.S.238 (1969) and Federal Rules of criminal procedure (rule II (d)).
The other key difference between the active inquisitorial and passive adversarial judges can be found when one compares the right of the judges to call the witness. In Great Britain and the U.S.A., the criminal procedure provides parties with the full opportunity to collect evidence in support of their interests and, offers almost no foundation for the judge to call witnesses without consent of both parties 14 (Pattenden, 1982). Such an action of the judge seriously jeopardizes the principle of judicial neutrality in the adversarial system and interferes with the parties’ opportunity for conflict self-regulation (Samaha & Dobson, 2005).
In Germany and Russia, because of the required judicial duty to pursue the inquiry into the circumstances of the case, the trial judge not only has a right, but also a duty to call witnesses if such testimony can complete or supplement the discovery of facts (Garner, 1916; Langbein, 1977). The investigative judge in France, due to the nature of its main function and obligation to establish the truth, has unconditional rights to call witnesses while investigating the case (Ingraham, 1987).
The role of prosecution and defense is derivative in both theoretical models from the status of the judge. In the theoretical adversarial model, the judge has a passive role and the prosecution and defense enjoy an active status. In theoretical inquisitorial model, the judge enjoys an active status, and the prosecution and defense are seriously restricted in their roles (Stoiko, 2006).
The theoretical adversarial model is driven by a competition between the prosecution and defense. That is why they have exclusive rights to collect and present
14 - In R. v. Baldwin British court of appeal said that judge’s discretion to call a witness should be
exercised sparingly and rarely. In Titheradge v. R. the British High Court denied the judge’s right to call witness without consent of defense and prosecution.
evidence, file motions to suppress evidence, examine and cross-examine evidence during the trial, and be involved in negotiations (Burns, 1999).
In the theoretical inquisitorial model, the main role of the prosecution and defense is to assist the active judge with the factual inquiry pertaining to the crime Their rights to collect and present evidence, to file motions to suppress evidence, or to examine evidence during the trial are not exclusive. The inquisitorial judge enjoys these rights too (Damaska, 1986).
In France and Russia, the prosecution and defense have limited rights to collect evidence outside the official investigation performed by the instructional judge or investigator. They have to file a motion in front of the judge or investigator to pursue the evidence collection (Dervieux, 2002; Garner, 1916). In Great Britain and the U.S.A., the prosecution and defense can collect any materials or information related to the crime, and they have a right to present it in front of the judge. The question of whether these materials will become evidence in the case is decided based on rules of admissibility (Hemphill, 1978; Ingraham, 1987).