I’m teaching a class on the history of criminal justice this semester (woohoo! Fourth Lateran Council!), and this week’s discussion turned to an interesting question: what’s the best way for a court to find the Truth? This might be a good thing to consider for authors, especially those who are creating a judicial system in a fantasy world or alternate universe.
For various historical reasons, England and it colonies ended up with a different approach to this issue than did continental Europe. The English—and American—version is known as the adversarial system. Under this system, each side in a criminal case presents evidence to an impartial decision-maker, usually a jury. Each side decides which evidence it wants to present. The judge in this system acts like a referee in a sporting event, making sure each side follows the rules. In the end, the decision-maker determines which side has been more persuasive. Has the prosecution proved every element beyond a reasonable doubt? Or has the defense managed to refute enough of the prosecution’s case to raise doubts?
The continental version is called the inquisitorial system. I know that for many people, that name brings to mind the Spanish Inquisition, but I assure you that heretics are no longer burned at the stake. In this system, the judge takes a much more active role and will often lead the course of the trial, making determinations about which lines of evidence to pursue. The judge will also determine guilt.
I don’t know that there’s any proof that either system is more effective at reaching the truth. Research has suggested, however, that people tend to feel most comfortable with and confident in the system they’re accustomed to. If you’re building a fictional system, you’ll want to think carefully about what suits your world best.