2 History

Until the 12th century11th century 12th century 13th century other centuries) As a means of recording the passage of time, the 12th century was that century which lasted from 1101 to 1200. Events Song dynasty loses power over Northern China The Kamakura Shogunate deprives the, the legal systems used in medieval EuropeFor the band of the same name, see Europe (band . Europe is a continent forming the westermost part of the Eurasian supercontinent. Europe is bounded to the north by the Arctic Ocean, to the west by the Atlantic Ocean, to the south by the Mediterranean Se generally relied on the adversarial system to determine who could be tried for a crime and whether they were guilty or innoncent. Under this system, unless a person were caught in the act of committing a crime, they could not be tried for a crime until they had been formally accused, either by the voluntary accusations of a sufficient number of witnesses or by an inquestAn inquest is a formal process of state investigation. A common type inquest is a medical examination any cause of death under suspicious circumstances. Larger inquests can be held into disasters, or into cases of corruption. Inquests in jurisdictions bas (an early form of grand juryA grand jury is a type of common law jury; responsible for investigating alleged crimes, examining evidence, and issuing indictments. The grand jury can compel witnesses to testify. During the proceeding, the defendant and his or her counsel are generally) convened specifically for that purpose. A weakness of this system was that because it relied on the voluntary accusations of witnesses, and because the penalties for making a false accusation were severe, would-be witnesses could be hesitant to actually make their accusations to the court, for fear of implicating themselves.

Beginning in 1198Events End of the reign of Emperor Go-Toba of Japan Emperor Tsuchimikado ascends to the throne of Japan January 8 Pope Innocent III ascends Papal Throne Births August 24 Alexander II of Scotland (d. 1249) Deaths January 8 Pope Celestine III William of New, Pope Innocent IIIInnocent III ne Lotario de Conti ca. 1161 June 16, 1216), was Pope from January 8, 1198 until his death. He was the son of Count Trasimund of Segni and nephew of Pope Clement III, born at Anagni, Italy. His father was a member of the famous house of Conti issued a series of decretals that reformed the ecclesiastical court system. Under the new processus per inquisitionem (inquisitional procedure) an ecclestiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, an ecclesiastical courtAn ecclesiastical court (also called "Court Christian") is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the middle ages in many areas of Europe these courts had much wider powers than before the development of nat could summon and interrogate witnesses of its own initiative, and if the (possibly secret) testimony of those witnesses accused a person of a crime, that person could then be summoned and tried. In 1215, the Fourth Council of the Lateran affirmed the use of the inquisitional system. The council also forbade clergy from conducting trials by ordeal or combat, two of the traditional means that courts operating under the adversarial system could use to determine the guilt or innocence of the accused. As a result, in continental Europe, the ecclesiastical courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated.

In England, however, King Henry II had established separate secular courts during the 1160s. While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional system, the secular common law courts continued to operate under the adversarial system. The adversarial principle that a person could not be tried until formally accused continued to apply for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna Carta: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for this purposes."

In the development of modern legal institutions which occurred in the 19th century, for the most part, most jurisdictions did not only codify their private law and criminal law, but the rules of civil procedure were reviewed and codified as well. It was through this movement that the role of an inquisitorial system became enshrined in most European civilian legal systems. However it would be too much of a generalization to state that the civil law is purely inquisitorial and the common law adverarial, indeed the ancient Roman custom of arbitration was the earliest form of adverarial proceeding, has now been adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as Scotland, Quebec and Louisiana while the substantial law is civilian in nature and evolution, the procedural codes that have developed over the last several hundred years are based upon the English adversarial system.

3 Inquisitorial tribunals in common law countries

Administrative proceedings in many common law jurisdictions may be similar to their civil law counterparts and be conducted on a more inquisitorial model. A good example are the many administrative boards such as the New York City Traffic Violations Bureau : a minor tribunal that deals with traffic infractions where the adjudicator also functions as the prosecutor and questions the witnesses; he or she also renders judgment and sets the fine to be paid.

These types of tribunals or boards can be found in most modern democracies. They function as an expedited form of justice where the state agents conduct an initial investigation and the adjudicator's job is to confirm these preliminary findings through a simplified form of procedure that grants some basic amount of due process or fundamental justice in which the accused party has an opportunity (sometimes futile) to place his or her objections on the record.

4 Myths

A commonly held myth is that inquisitorial systems do not allow for the presumption of innocence. This myth comes in large part because in civil law nations, an investigating magistrate supervises police investigations. However the magistrate does not determine innocence or guilt and functions much as a grand jury does in certain common law nations. In addition, there is some confusion in that, unlike common law nations, most civil law systems have no concept of a guilty plea. A criminal defendant who confesses, has his confession entered into evidence and the trial continues as usual.

In addition, contrary to myth, modern inquisitorial systems also separate the role of the prosecutor and judge in criminal cases and provide a criminal defendant a right to a defense and a right to counsel .

5 Footnote

1. See: Code of Penal Procedure, Article L81 (in French).

6 See also

• Law
• Judiciary

Law

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