CHAPTER 4 - The trial process

Summary

This chapter deals with the trial itself. The first section considers the particular characteristics of the English adversary method of trial as compared with the so-called inquisitorial method followed on the Continent and, in particular, examines the role of the judge. The second and third sections concern the advantages of representation and the difficulties faced by the unrepresented person in an English trial. The following sections look at the orality of procedure and the evidence of social psychologists that evidence on questions of fact is more apt to be unreliable than the participants appear to realise. The sixth section deals with the most important problems of the rules of evidence.

The adversary system compared with the inquisitorial

The common law method of trial has often been described as ‘adversary’ or ‘accusatorial’ – as distinct from the continental ‘inquisitorial’ method. The essence of the distinction is that, whereas in the inquisitorial system the dominant role is played by the court, in the adversary system it is played by the parties. In the adversary system the judge is supposed to remain a mainly passive and silent umpire listening to the evidence produced by the two parties. The parties prepare their respective cases, they decide what witnesses to call and in what order and they examine and cross-examine the witnesses. If both sides decide not to call a witness who has potentially relevant evidence, normally the court will do nothing about it.