Note sure about the statistics used in this article:

eg "The innocent are rarely charged, and 95% of guilty defendants are convicted. In our system, at least one prisoner in a hundred is innocent, and more than 50% of guilty defendants get off."

How does one know who the guilty and the innocent are in order to obtain such statistics? After trial, it is quite common for an accused person who pleaded not guilty to maintain their innocence, whether or nor they were convicted or committed the offence.

I also take exception to this comment:

"Dershowitz also said that all defence lawyers, prosecutors and judges know that "almost all" accused are guilty."

I have represented many clients I have believed are innocent. So I disagree with this statement. Even when I believe they are guilty, that is just a belief, it is not something I know.

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Let alone the financial costs, if even one innocent person is saved the horrors of prison, then this is worthwhile.

But Hey, not one but many innocent persons who've done nothing wrong are routinely locked up in Australia and the public are silent as sheep about it. They are called... 'jurors'.

So this proposal looks excellent, but are there no hidden thorns? I just don't know enough, so it is worth pursuing and further study.

Would be great to see more debate on the pros and cons of each system. On the one hand the adversarial system was really constructed so equals could settle their disputes, Duke v Duke land holder V land holder not bank V customer, State V citizen.

Then again having read so many cases in the equity courts (Family provision cases) where the judges decide what they think is fair in their mind then make up what ever they want to justify their position, I wonder of a inquisitorial trial wouldn’t be like this?

Over all I feel that a system that tries to find the truth rather than a winner sound good to me.

Troposa,

You raise a good point. The inquisitorial system does give more power to judges to determine the outcomes of a case. Which means that a judge's neutrality will be weaker under such a system.

Furthermore, the parties have less autonomy to run their own cases, which means a judge may make it difficult if not impossible for a party to present a case which a judge is not inclined to accept.

“….Within the adversarial system, despite some statements to the contrary,the function of the courts is not to pursue the truth but to decide on the cases presented by the parties. Whether European courts are effective in investigating the truth and actually finding out what is the truth is a vexed question ….Although there are those who assert that the European system is not notably successful on this score, it is probably rather more successful in this respect than the adversarial system.”
Sir Anthony Mason (Chief Justice of Australia from 1987 to 1995 speaking on ‘The future of adversarial justice’ Paper 17th Annual AIJA Conference Adelaide 7 August 1999 (Australian Institute of Judicial Management)

Having acted for clients in both adversarial and inquisitorial systems, I think there's no doubt that the adversarial system is much better in terms of doing justice, for many reasons. Being able to call and cross-examine witnesses of the party's own choice is a very powerful instrument for getting to the truth of the matter. The party has a much more immediate interest in what he perceives to be the wrongs and injustices he is trying to correct, than the judge, who may not see the point at all, or may not think to ask the all-important question. Very frustrating for the party watching the judge ignore or fumble the issues.

The inquisitorial system has been described as a bicycle with only one wheel and that about sums it up. In the absence of adversaries, the judge must necessarily take on the role of presenting the case against the plaintiff in order to bring critical thinking to bear on the case, and this puts the judge in a conflicted role of judge *and* tacit adversary. Then the disproof of his bias must tip-toe round his ego, whereas with the adversarial system, disproof can be direct and explicit.

Besides, if the purpose of the exercise is to save money, that could be done in a lot better ways than reducing the quality of justice. The court system is a monopoly, and tends to be run to satisfy the interests of the producers of its service, rather the consumers. The litigants in the higher courts are overwhelmingly big corporations, so everyone is being forced to pay for them to have a very expensive justice system.

The best way to reduce costs is by allowing competition. This is most feasible in the civil courts. For example construction cases were for many years settled by private arbiters chosen by consent of the parties, until arbitration got too expensive, and was replaced by alternative dispute resolution. This in turn got too expensive.

What makes it keep getting expensive, is that the state monopoly courts won't let the decisions of arbiters be final, even if the parties have explicitly undertaken so. In other words, the monopolist government courts use their monopoly power to nobble the better and cheaper competition.

If the monopoly and its guild were ended, the result would be a greater diversity of justice services providing higher quality, faster, at lesser cost.