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论文作者:51lunwen论文属性:学期论文 termpaper登出时间:2008-07-24编辑:点击率:5479
论文字数:1129论文编号:org200807240957481565语种:英语 English地区:澳大利亚价格:$ 33
关键词:LEAGAL STATUSCRIMINAL JUSTICE PROCESSCOMPARATIVE ANALYSISCONFRONTATION法律课程论文
THE LEAGAL STATUS OF INVESTIGATION AND TRIAL IN CRIMINAL JUSTICE PROCESS
—— A COMPARATIVE ANALYSIS
The investigation and the trial are two important and interrelated phases of the criminal justice process. The different status of the investigation or the trial in criminal proceedings flows from the characteristics of the inquisitorial criminal justice system and the adversarial criminal justice system. The two systems differ in significant respects. Given the functions of the investigation and the trial as well as the distinctive features of the two systems, such as the judge-controlled or party-control trial, confrontation and the form of evidence, it is argued that the inquisitorial system highlights the primacy of the investigation while the trial is crucial to the adversarial system.
I FUNCTIONS OF THE INVESTIGATION AND THE TRIAL
In the inquisitorial system, the purpose of the investigation is to find the truth.
II JUDGE-CONTROLLED AND PARTY-CONTROLLED TRIAL
The trial is judge-controlled in the inquisitorial system.
III CONFRONTATION
Confrontation between the accused and the accusing witnesses, which is held during the investigation for the purpose of finding the truth, is an essential part of the inquisitorial system. However, there is no formal confrontation at the trial even if questions may be put to the witnesses by leave of the judge. In view of this, the importance of the investigation would be evident .
Compared to the inquisitorial system, confrontation in the adversarial system is different in that it happens in the court. Confrontation is one of the distinctive features of the adversarial system. The judge and the counsels in the adversarial court consider the right to cross-examination as a guarantee of the credibility and completeness of the testimony given by the witnesses. In the adversarial system the win or the loss of the accused depends, to some extent, on his counsel’s performance in the court confrontation.
IV THE FORM OF EVIDENCE
Partly as a result of the inquisitorial approach, the civil court procedure relies much more heavily on documentary evidence than does the case in the adversarial system. In the inquisitorial system the written evidence as recorded in the dossier prevails over oral evidence of a witness. McKillop stated as follows:
The written record of the investigation controls the subsequent phases of the process. Witnesses called at the hearing are expected to confirm their depositions and reports as in the dossier and not disturb the pre-existing written record.
When the written record bears out a claim, the judge usually does not go further. When the written evidence is challenged by the oral evidence of a witness, the written evidence prevails in most cases. As a matter of fact, there is no verbatim record of oral evidence presented by the witnesses, only a summary in the judge’s word instead. The centrality of written evidence reinforces the significance of the investigation.
Conversely, the adversarial system is characterized as oral contest. Oral evidence usually prevails over written evidence. M本论文由英语论文网提供整理,提供论文代写,英语论文代写,代写论文,代写英语论文,代写留学生论文,代写英文论文,留学生论文代写相关核心关键词搜索。