Legal Traditions

Nations diverge in the particulars of their formal criminal justice systems. Legal traditions shape procedure (i.e., investigation, trial, evidence, plea bargaining, appeals) along with the role of the judge, prosecutor, and defense counsel.

Adversarial systems (most common-law countries) structure criminal proceedings as a competition between two parties. Procedural fairness is the focus of evidentiary and other rules.

Inquisitorial systems (most civil-law and Islamic-law countries) use rules of criminal procedure to facilitate a search for truth. All relevant evidence is reviewed. Errors of fact and law are corrected during the initial appeals stage.

Adversarial Systems: (1) are in most common law countries, (2) structure criminal proceedings as a competition between two parties, and (3) procedural fairness is the focus of evidentiary and other rules
Inquisitorial Systems: (1) are in most civil and islamic law countries, (2) use rules of criminal procedure to facilitate a search for truth; all relevant evidence is reviewed, and (3) errors of fact and law are corrected during the initial appeals stage

Though differences between common and civil law systems remain significant, there are points of convergence. A few historically inquisitorial countries have introduced elements of adversarial procedure, including Mexico and Taiwan. In common-law countries, advances in technology have required judges to play a more active role in deciding whether expert evidence should be included. Signatories to the European Convention on Human Rights now recognize trial rights found in common-law jurisdictions (for example, the right to confront witnesses). Nations with more complex colonial histories, such as the Philippines and Sri Lanka, have legal systems drawing from both traditions. Other countries integrate customary and/or religious law, institutions, and practices into their criminal justice systems.


Chinese Criminal Law

China has implemented significant legal and judicial reforms, including revisions of criminal procedure laws.

China recently incorporated select adversarial elements into its historically inquisitorial legal system, such as the right to cross-examine witnesses.

Despite its historical roots in civil law and more recent changes, the Chinese criminal justice system remains sui generis.

More information about China’s legal system can be found here.

Islamic Legal Systems

Islamic Criminal Law

The primary sources of Islamic criminal law are the Qur’an and Sunnah. Historically, legal authority over criminal cases fell to the caliph, who delegated this authority to qadis, military commanders, government officials, and local police. However, criminal complaints were typically resolved in the private sphere.

The Ottomans initiated the codification of Islamic criminal law, and reforms continued through the twentieth century.

Most Muslim-majority countries do not apply classical Islamic criminal law; the articulation, investigation, and prosecution of criminal cases is handled by the state.

More information about Islamic legal systems can be found here.

Customary Law

Customary Criminal Law

Some legal systems in Africa, Asia, Europe, and the Middle East employ a combination of civil law and customary law (sometimes referred to as indigenous or traditional law), including Afghanistan, Bahrain, Bolivia, Cambodia, Namibia, and Sweden.

Principles of customary law are drawn from community values and traditions. The institutions, practices, and laws of customary justice – such as the role and qualifications of adjudicator, standards for liability and self-defense, sanctions, the elements of a crime—differ from those used in the formal criminal justice system. A village elder often facilitates mediation or reconciliation. But the nature of the alleged crime may require a more adversarial approach, witness testimony, and a record of the proceedings and judgment.

More information about customary law systems can be found here.

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Ministry of Justice

In most civil-law countries, a ministry of justice not only leads criminal prosecutions, but often administers the justice system, including the judiciary and prisons. In most countries, it is part of the executive branch.

The Italian Ministry of Justice has the same scope of responsibilities but is part of the judicial branch.

Judges and prosecutors may be employed, trained, reassigned, or promoted by the ministry of justice. The ministry may also promulgate rules of court procedure and participate in the appointment of court leadership.

In common-law countries, departments of justice are executive-branch agencies and usually have no oversight over the judiciary.

Italian Ministry of Justice

In the United States, the Department of Justice has no oversight over the judiciary, but is sometimes called on, through its Solicitor General’s office, to provide briefings in cases before the Supreme Court. The Department of Justice also plays a role in vetting candidates that the president intends to nominate for judicial office.

Australia’s Attorney General’s Department is part of the executive branch and is responsible for law and justice, as well as industrial relations.

The Department of Justice in Northern Ireland is responsible for criminal-justice policy and court administration through the Northern Ireland Courts and Tribunals Service.

Public Prosecution Service

In many civil-law countries, the Public Prosecution Service–sometimes referred to as the General Prosecutor’s Office or the Office of the Public Prosecutor--administers the criminal justice system. Individual prosecutors may be called ‘"public prosecutors,” or they may have specific titles related to their responsibilities such as "trial prosecutors" or "investigating prosecutor." In some countries the authority of the prosecution service extends beyond criminal cases and includes the protection of fundamental rights.


The public prosecution service may be within the executive branch and independent of the minister of justice. Or the country’s head prosecutor–the Prosecutor General--may be an official within the ministry of justice. In some states of Brazil, the public prosecutor is a stand-alone independent entity. In the Netherlands, the public prosecution service and the courts are both part of the judiciary.

Crown Prosecutor Service

The public prosecutor is considered an impartial advisor to the court, rather than an adversarial party. They are expected to review the police file to ensure that proper procedure was followed. The prosecutor participates in the investigation and has an obligation to pursue inculpatory and exculpatory evidence. The investigating prosecutor may keep the case through its pendency or, as in Taiwan, transfer the case file to a trial prosecutor.

Adversarial systems also have different titles for their prosecutor. For example, the United Kingdom has the Crown Prosecution Service, and attorneys are called Crown Advocates and Crown Prosecutors. In the United States, federal prosecutors are called Assistant U.S. Attorneys, but in the state court systems, prosecutors may be called District Attorney or State's Attorney.

Although a prosecutor is an adversarial party in trial proceedings, they have an ethical obligation to ensure proper procedures are employed. In 1963, the United States Supreme Court ruled that the prosecutor must turn over “materially” exculpatory evidence to the defense.

Some civil-law countries, including Japan and many Latin American countries, have changed the role of prosecutor to resemble the adversarial model.


Countries organize law enforcement in different ways: regional police managed by the federal government, as in Germany and the Netherlands; separate federal, state/regional, and local/provincial law enforcement, as in the United States and Pakistan; Jordan has “judicial police” under the authority of the public prosecutor; France has national urban and separate rural police under the interior ministry; and Sweden has a single police force for the entire country.

Saudi Arabia’s centralized public security force derives its authority from executive orders and Sharia; the Interior Ministry supervises regular police, the king oversees religious police, and tribal authorities oversee tribal criminal justice. In Japan, regional police work closely with local communities; the National Police Agency is responsible for oversight and develops law-enforcement standards.

Brazil has regional police that operate under the authority of the secretariat for public security and a military police force controlled by the armed forces.

Saudi Police Car
Defense counsel meeting client

Defense Counsel

Inquisitorial systems permit defense counsel to meet with the defendant, appear at detention hearings, bring witnesses or evidence to the attention of the investigating judge or prosecutor, and file motions. However, defense counsel may not contact witnesses before trial. During trial, the defense may not cross-examine witnesses or pose direct questions. Counsel may suggest a line of inquiry to the judge during trial and may also raise procedural objections. Some inquisitorial systems have adopted adversarial aspects, with defense counsel playing a more active role at trial.

In adversarial systems, defense attorneys play a proactive role both in pre-trial investigation and during trial and are permitted to contact witnesses before trial as part of their investigation.

Defense counsel with client
Right to Counsel

The right to counsel is recognized by most countries, although often only for more serious crimes (Denmark, Japan). It may be constitutionally mandated, as is the case in the United States and India, or conferred by legislation, as in Egypt, France, and Lithuania. In Brazil the right to counsel attaches at the preliminary investigation. In most countries, it attaches at arraignment or upon formal notice of the charges.

Many countries provide some form of publicly funded legal representation to indigent criminal defendants. Colombia has a national public defender directorate. Finland’s legal aid is administered locally. The Netherlands has a legal aid system, with private practitioners assigned to more complex cases. More information about national public defense models can be found here.


In some countries, one judge handles all aspects of the case from start to finish. In others, there are different types of judges who decide certain aspects of the case.

Investive Judge with Evidence binders

Investigating Judge

Some civil-law countries have an investigating judge—sometimes called an examining magistrate—who leads the investigation of serious or complex cases. This institution was developed to ensure impartiality. If the investigating judge determines there is enough evidence to proceed to trial, the case is transferred to a first-instance judge.

In some countries, including Croatia and the Netherlands, the investigating judge also has an adjudicatory role.

The modern trend is to reduce the powers of the investigating judge, as was done in France, or abolish the position entirely, as in Germany, Spain, Turkey, and most South American countries.

Sign directing court visitors to the libery and custody judge's chambers

Liberty & Custody Judge

Some countries have a designated judge who makes decisions on whether a defendant should be detained before trial.

In France, the juge des libertés et de la détention reviews requests for pretrial detention and the terms of custody.

Amendments to Romania’s criminal code reintroduced a similar position: the liberty and custody judge presides over requests for preventive measures, searches, special surveillance, and pretrial evidentiary matters.

Standard trial judge image

Trial Judge

In many civil-law countries, the first-instance or trial judge actively defines and directs the case. They are responsible for scheduling, presiding over proceedings, questioning the defendant and witnesses, and ruling on legal issues. The judge may call for additional evidence and witnesses or return the case to the public prosecutor for further investigation and refiling.

Judges in adversarial systems may be actively engaged in the procedural aspects of case management, but they do not become involved with the investigation or the prosecution’s case, and rarely question witnesses or suggest evidence.


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The Investigation

The investigation process is a discrete pretrial phase and can be lengthy. Many countries –civil and common law alike– vest investigative authority to the police. Complex investigations may be led by a prosecutor. Some countries use judicial police to collect evidence under the supervision of a judge or, more commonly, a prosecutor.

Search warrant

Investigation by Judge

Investigating judges often lead the investigation, determine what evidence is relevant, conduct interviews (victims, witnesses, and the accused), order warrants, visit the crime scene, and take testimony during preliminary hearings. The investigating judge, usually with the assistance of the police and prosecutor, conducts a thorough examination and analysis of inculpatory and exculpatory evidence. This process can continue for months or even years, with hearings scheduled intermittently.

South Korea's prosecutorial services building

Investigation by Prosecutor

The prosecutor’s office is responsible for the investigation in many countries, including coordination with law enforcement and summoning suspects and witnesses. If a matter is urgent, some countries, including Egypt and Korea, permit the public prosecutor to order arrest, pretrial detention, search, seizure, and surveillance without first obtaining judicial review. In Germany, judicial review of these orders is obtained after the fact.

Crime scene investigation

Investigation by Law Enforcement

In adversarial systems, initial criminal investigations are handled by the police and follow up investigation is often directed by the prosecutor’s office. In England and Wales, if the police believe they have sufficient evidence, the case will be sent to the Crown Prosecution Service (CPS). The CPS determines whether the case will proceed to trial. In the United States, federal crimes are investigated by federal law enforcement officers and state crimes (the vast majority) are investigated by local police agencies. Evidence is forwarded to the prosecutor's office.


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Initiating a Criminal Case

Filing Criminal Charges

Justice systems use different mechanisms to file felony criminal charges. The term "indictment" is used in some but not all civil-law countries. The charging document may be limited to a short statement of the facts, or it may include the elements of the crime and a detailed set of facts.

Grand jury indictments are still used in Liberia and the United States (in the federal system, and in approximately half of the states). The prosecutor presents preliminary evidence before sixteen to twenty-three citizens who vote on whether there is enough evidence to establish probable cause.

Most countries use preliminary hearings during which a judge decides whether there is sufficient evidence to detain the defendant and proceed to trial; the judge may also eliminate weak charges. In many countries this process is performed by a pretrial judge. In France, the preliminary hearing takes place in camera to protect the identity of the accused.

In many civil law countries, if the court finds that the initial charges filed are insufficient to sustain the crime, the prosecution is given leave to amend the charges and submit additional evidence without prejudice.

Examples of a Criminal Charge from the United Kingdom

The Rights of Victims

Inquisitorial systems accord victims significant rights that often involve procedural matters. Chile’s constitution includes a mandate to protect the interests of the victim, and Poland gives full procedural rights to victims who sit with the prosecutor at trial. If a criminal case advances to trial, the victim may be a formal party with the right to be represented by counsel. If the prosecutor dismisses the charges, countries like Germany, Japan, and Vietnam allow the victim to petition a judge or special committee to compel prosecution. Bulgaria, Russia, and Spain have procedural rules that authorize the victim to act as a private prosecutor. Many countries authorize victims to bring a parallel civil action against the defendant for damages with the support of the government. Or, as in Thailand, the prosecutor can pursue monetary compensation on the victim’s behalf during the sentencing phase.

In adversarial systems, the role of the victim is more limited. In the United States, victims cannot initiate criminal cases and are not parties to the proceedings, but in some states, they have the right to be heard at trial or sentencing. Victims may bring a separate civil suit for damages, but the government is not involved.

Federal rights of victims
Codification of Victims' Rights

The U.S. federal Crime Victims' Rights Act provides for the right to be notified about case events, the right to be heard in proceedings, and restitution. Canada’s Victims’ Bill of Rights Act grants victims the right to a broad range of information and to express their views about decisions that affect their rights.


All countries have a formal proceeding to notify the accused of the charges against them. In adversarial systems, this hearing is called an arraignment. Most civil-law countries have an analogous hearing during which the defense may be heard. In Chile, the defendant is informed of the criminal investigation at the “complaint hearing” but does not enter a plea. However, other countries, including Japan, do not have arraignment-like proceedings.

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Pretrial Detention

Criminal justice systems often impose time limits on pre-arraignment detention, usually twenty-four to fourty-eight hours. Article 5 of the European Convention of Human Rights requires that anyone arrested or detained must be brought promptly before a judge; most signatory countries are in violation of this provision. Italian criminal procedure stipulates that an arrested person must be brought before a prosecutor within twenty-four hours and the prosecutor has forty-eight hours to bring the charges before a judge. Japan permits twenty-three days, and Morocco authorizes police custody “if necessary for the investigation.”

Justice systems have guidelines for pretrial release to prevent lengthy trial delays. Remand--detention with no right to conditional release or bail–is usually reserved for very serious cases. Personal recognizance (supervised release without bail) is routine for many less serious crimes. Most European Union states do not have bail systems, but they can impose requirements to report to authorities and issue travel bans, as is the case in Sweden. Posting cash bail or another type of financial security is available in some countries. Czech judges may release a defendant on a promise of return to the custody of a guarantor or with bail.

Person in pretrial detention

Courts in the United Kingdom rarely impose cash bail and rely instead on conditions such as reporting regularly to a police station. The United States criminal justice system uses bail extensively. It is one of two countries that allow commercial or third-party bail. (The Philippines is the other.) The federal government and most states have legislation guiding judicial assessments of bail applications, and defendants may request periodic review of their bail conditions. The disproportionate impact of U.S. bail systems on the indigent has led to proposals for broader application of nonbail conditional release.

Despite the existence of conditional release and bail, there are large numbers of pretrial detainees in countries as diverse as Cambodia and Canada, many of whom are accused of minor, nonviolent crimes unlikely to result in a custodial sentence. 


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Nontrial Dispositions

Diversion Programs

Diversion programs are widely used for less serious crimes in many countries. For example, a criminal case may be suspended and later dismissed when restitution, community service, substance-abuse treatment, or other conditions are met. In Chile, adjudication can be deferred for first-time offenders who face a sentence of up to three years. Australia has a similar program that results in no criminal record.

Restorative justice mechanisms may be available–and sometimes required–for misdemeanors, as in Germany, Bulgaria, and Norway. Victim-offender conciliation is most commonly used in Eastern Europe and former Soviet countries but also appears in Western Europe (Austria, Belgium, France) and Asia. Nicaragua permits mediation by a neutral facilitator for nonviolent crimes.

Image of a prisoner's jumpsuit saying 'community payback'
Plea bargain

Plea Bargaining

Plea bargaining–a reduced sentence in exchange for admission of guilt--is used extensively in the United States but disfavored by many countries. Because the inquisitorial system is premised on a search for truth, formal adjudication is deemed essential, even if there is a confession. Other countries prohibit plea bargaining due to concerns about potential coercion and vesting too much power in the prosecution.

There are other mechanisms to reduce the length of trial proceedings, including informal discussions between the prosecutor and defense or, as in Norway, an agreement to a mitigated sentence after confession.

The Norwegians do not consider this process plea bargaining; judges have discretion to consider a confession when deciding sentence. Germany allows “informal agreements,” but requires negotiations be read into the record. Italy introduced a trial waiver process for certain offenses with a reduced sentence. Other countries prohibit all types of negotiated agreements. The time and expense of trial proceedings as well as lengthy pretrial detention have led some jurisdictions to introduce plea-bargaining-like practices (Bulgaria, Georgia, Russia), but their scope and specifics differ from the U.S. model.

More information about plea bargaining and trial waiver models can be found here.

Summary Proceedings

Summary proceedings provide an abbreviated trial process without an explicitly negotiated agreement. Some countries employ expedited, less formal trials if evidence of guilt is overwhelming and preliminary proceedings are unnecessary.

Germany uses penal orders whereby the prosecutor proposes a charge and fine, and the defendant has a fixed time frame to accept.

Most cases in Japan are resolved through discretionary prosecution, to encourage reconciliation and rehabilitation. Discretionary prosecution is the early exchange of evidence to narrow the scope of trial. If facts are not contested, the court examines the evidence and issues judgment without trial. Italian defendants can request a “short trial,” which is where preliminary evidence is examined at a hearing, and if the accused is found guilty, the prescribed penalty is reduced by one-third.

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Pretrial Disclosure of Evidence

The investigative file, or dossier, includes all the evidence collected during an investigation (e.g., witness statements, investigation notes, expert reports). Many countries accord the defense full access to the dossier, whereas others may limit access until a week before trial, or deny full access. Argentina provides the defense limited access after the pretrial investigation is complete. The contents of the dossier are often presumed admissible, and in Brazil, the entire file is given to the jury. On the other hand, Italy now deems the dossier inadmissible and requires all evidence to be deduced at trial or, if necessary, via pretrial depositions.

Timely disclosure of prosecution evidence is essential for the accused’s ability to prepare an effective defense and international norms make clear that it is necessary for a fair trial. In most inquisitorial systems, the defense has access to the evidence the investigator or the investigating magistrate has assembled.

Image of police evidence

Because the discovery process is not adversarial, exculpatory evidence is available to the defense as a matter of course. Article 6(1) of the European Convention on Human Rights states that prosecutors must disclose all material evidence, inculpatory and exculpatory, to the defense. Japan does not currently have a mandatory disclosure rule. But, after several wrongful convictions were linked to inadequate pretrial disclosure of evidence, Japan is now considering reforms.

Historically, adversarial systems provided for more limited pretrial disclosure, in keeping with the principle that one side in litigation is not obligated to assist the preparation of the opponent. However, modern due-process norms and the growth of nontrial dispositions have led to more pretrial disclosure. In the United States, rules regarding the timing and scope of what evidence must be provided to the defense vary by state. Some require “open file” discovery: all nonprivileged evidence is provided upon request. Other states provide police reports and other evidence at a set date before trial; witness statements may be shared after or just before testimony. U.S. Federal law mandates disclosure of exculpatory and impeachment evidence, and summaries of expert witness statements; if this evidence is requested, the defense has a reciprocal disclosure obligation. By contrast, Commonwealth jurisdictions, including Australia, Canada, England, and New Zealand, have far broader disclosure mandates that more closely resemble those in inquisitorial systems.

Inage of federal rules of evidence

Rules of Evidence

Most civil-law countries do not have distinct, codified rules of evidence; this is partly a function of the absence of juries. The prosecutor’s file is usually shared with the defense; all lawfully obtained evidence is admissible (including hearsay and prior bad acts); time is not consumed by evidentiary arguments and motions for bills of particulars.

Some countries, including Sweden, have no rules of evidence and develop evidentiary practices by judicial construction or scholarly commentary. Others, such as Germany and Japan, include general evidentiary provisions in their procedural codes. German judges have broad discretion to determine whether evidence is convincing.

Although Japan’s procedure codes have more specific evidentiary provisions than Germany’s, Japanese judges also have significant discretion as to admissibility, relevance, and probative value. In countries with mixed tribunals, professional judges deliberate with lay jurors and explain the potential unreliability of certain types of evidence, such as hearsay.

Adversarial systems typically have detailed evidentiary codes setting forth rules that govern admissibility. This approach is historically rooted in the jury trial system, but the rules apply to nonjury court proceedings as well. In Australia, the Law Reform Commission undertook an extensive study of national and regional evidentiary laws and court decisions, as well as psychological research and other data. This study gave rise to the Uniform Evidence Law; it has been adopted throughout the country. Australia’s rules of evidence are detailed and exclude evidence deemed unreliable or prejudicial. The United States Federal Rules of Evidence has sixty-eight rules divided among eleven articles. State judiciaries have their own evidentiary rules closely resembling the federal rules.

Exclusionary Rule

Most national constitutions recognize rights to due process and freedom from unreasonable search and seizure. Evidence gathered in violation of constitutionally protected rights—and the fruits of this evidence —are excluded in some countries and subject to limitations in others. Exclusionary rules have developed to protect these rights and deter police misconduct. However, their application may undermine the countervailing interest in presenting relevant and probative evidence. Evidence obtained during torture is almost always deemed unreliable and hence inadmissible.

The scope of a country’s exclusionary rule often reflects its political history, with post-authoritarian states embracing more expansive protections.

Woman shredding a document

Many countries in South America, together with Greece, Spain, and many formerly communist countries, recognize broad exclusionary rules. Belgium at one time excluded illegally obtained evidence, but now does so only if the illegality compromises the right to a fair trial or the reliability of the evidence.

In Germany, illegally obtained evidence is inadmissible unless the seriousness of the crime outweighs the seriousness of the violation. Germany does not exclude derivative evidence unless the violation of the accused’s rights is egregious. In Taiwan, the exclusionary rule is at the judge’s discretion; judges are charged with weighing the rights of the defendant against the public’s interest in the contested evidence.

In the United States, the exclusionary rule was developed, and continues to evolve, through judicial decisions. The Supreme Court first recognized a broad exclusionary rule in the 1960s, an era when police misconduct generated widespread public concern. Beginning in the late 1980s, however, the Court began to narrow the scope of the rule, finding that the cost of excluding relevant evidence outweighed its value as a deterrent of misconduct. In 2009, the Court held that evidence obtained as a result of procedural irregularities is admissible in the absence of official malice or recklessness.

Other common law countries focus on the institutional implications of illegally obtained evidence. Section 24(2) of Canada’s Charter of Rights and Freedoms requires the exclusion of evidence that was obtained in such a way as to “bring the administration of justice into disrepute.” Similarly, the Israeli Supreme Court has held that the admission of evidence obtained illegally, compromises the fairness and integrity of the judicial process.

Expert witness on the stand


The presiding judge in inquisitorial systems appoints nonpartisan experts for court proceedings. The judge may do this independently or at the request of the prosecution and defense. Court experts are often selected from an official list. Many are employed by national forensic laboratories and are rarely challenged by the defense. The prosecution and defense may ask to retain their own experts to review the court expert’s findings. These experts may be permitted to file a report challenging the court expert’s assessment.

Some countries require that expert evaluations be submitted in writing. Others permit experts to testify, especially if the issue is novel or controversial.

Experts are permitted to report (or testify) expansively, in a narrative. They can also express observations and opinions.

Adversarial criminal justice systems take a different approach. The prosecution and defense retain separate experts who usually testify and prepare a report. Procedural rules govern the scope and admissibility of expert testimony. The trier of fact (jury or judge) will assess the competing narratives and determine which is more persuasive.

This “battle of the experts” is often criticized. Some judicial systems have created guidelines to mitigate potential party bias. England amended the Criminal Practice Directions in 2019 to reaffirm that the duty of all experts is to act “in the cause of justice” and to require disclosures by all experts in advance of testimony or the submission of a report. Experts must disclose information related to their credibility, qualifications, and expertise as well as any fees they receive and any conflicts of interest.

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The Process

Most inquisitorial justice systems have discontinuous trials. The "trial" is a series of hearings held over the course of many weeks or even months. During trial, the prosecutor can request, or the judge can order, additional evidence to be gathered, further delaying the conclusion of the proceeding. Because trial hearings proceed over time, evidence is not taken in any prescribed order. By contrast, trials in adversarial systems typically take place over the course of consecutive days. This reflects both the constraints of jury trial scheduling and the perception that the continuous trial model promotes efficiency.

While witness testimony is taken through live testimony in adversarial systems, elicited through questions posed by counsel, inquisitorial trials often have witness statements submitted in writing. If there is live testimony, witnesses and the defendant deliver an uninterrupted narrative before being questioned by the judge. The prosecutor and defense may submit questions to the judge and request additional witnesses.


Another distinction between inquisitorial and adversarial systems involves the number of judges hearing a trial: most inquisitorial systems use a panel (a presiding judge and two junior judges) for felonies and a single judge (or an administrative proceeding) for less serious offenses. By contrast, in most adversarial systems, a single first-instance judge presides (with a jury, see below).

In the United States and some (but not all) adversarial systems, a court reporter creates a verbatim transcript during all court proceedings. This is not customary in many inquisitorial law systems. Usually the judge (or a court secretary or clerk) takes notes during proceedings and may permit the prosecutor and defense attorney to review and comment upon the notes, or a summary, before they are made part of the record. This practice reflects the fact that in many inquisitorial systems, first appeals are de novo and evidence is reexamined by the appellate court.

Juries & Lay Assesors

The United States, Canada, and Great Britain continue the common-law tradition of jury trials. However, in many common-law countries, their use is limited to serious felonies. Other common-law countries, like India and Singapore, have abolished the jury trial. Trial by jury is incorporated into the national constitutions of some civil-law countries (Argentina, Armenia, Kazakhstan, Russia), though it may be implemented in only a few regions and is usually limited to serious offenses. Other countries, including Georgia and Spain, introduced jury trials during criminal procedure reforms.

Some civil-law countries use mixed tribunals of professional judges and lay judges/assessors for trials (usually felonies) and sometimes for appeals. The ratio of professional to lay judges varies by country and type of proceeding. During trial, lay assessors submit questions to the presiding judge and can request evidence.


But access to the dossier may be limited. Lay assessors often deliberate with the professional judge(s) on culpability and, in some countries, also on sentencing. A simple majority is usually required to convict. South Korea has an advisory system: nine citizens deliberate culpability and sentence and submit a nonbinding recommendation to the judge. Assessors serve for a certain number of days per year and are selected locally (Czech Republic), by government agency (Germany), by political parties (Sweden), from civic organizations (Brazil), or based on expertise (in Norway for economic crimes and Thailand for juvenile cases).

More information about jury trials and lay assessor systems can be found here.

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Most countries in inquisitorial systems do not have sentencing hearings. Evidence relevant for determining sentence (personal history, psychological profile, prior convictions) is admitted during trial. If there is a finding of guilt, the judge pronounces sentence directly after reading the verdict. In France, the prosecutor recommends a sentence, which is usually accepted by the trial judge. The juge d’application des peines executes the sentence, adapting its terms to the needs of the offender and sometimes deviating from the initial sentence. German courts also tailor the sentence to the offender, considering guilt, impact of the sentence on victim and offender, and the potential for reconciliation. By contrast, South Korea has introduced sentencing guidelines modeled on the U.S. system.

In the United States and most other adversarial systems, sentencing takes place during a separate hearing after trial. The judge considers written and oral statements made by the prosecution, defense counsel or the defendant, and any victims. In New Zealand, judges also consider presentence reports prepared by probation officers that contain a recommendation as to the type of sentence that should be imposed. Courts in South Africa and Australia consider victim impact statements when deciding on a sentence.

Sentencing of Mafia member Louis Buchalter (head of Murder, Inc.)

Many countries employ noncustodial sentences to reduce recidivism and promote rehabilitation. Sweden’s penal code states that “imprisonment should be avoided wherever possible.” Germany does not impose a prison sentence under six months; four out of five criminal sanctions are fines. Conditional sentences and penalties such as task orders (to seek a job or training) may be imposed for nonviolent offenses. Day fines—equivalent to one day’s salary—are used for the majority of serious, nonviolent offenses in Finland.

In Brazil, an offender sentenced to four to eight years may serve in a semi-open setting: incarcerated at night and released to work outside of the prison during the day. In some parts of the United States, including Florida, defendants can be eligible for work release and are required to return to prison at night after working a job during the day. In Canada, weekend-only prison sentences are reserved for low-level offenders. In Bosnia and Hungary, some prisoners can become eligible for weekend furloughs from prison after serving a set number of years of their sentence.

In many countries, including Croatia, Nicaragua, and Norway, life sentences may be prohibited. France, Italy, and Germany permit review of life sentences for potential early release. Mandatory minimum sentences are used in most countries, including Denmark, Canada, Ireland, New Zealand, Germany, South Africa, Japan, Argentina, Mexico, and the United States. Capital punishment has been abolished in most of Central and South America and all of Europe, except Belarus. However, this is not the case in Asia, the Middle East, and North Africa. Approximately fifty-five countries permit the death penalty as a punishment. The Philippines and Turkey are seeking to restore the death penalty.

Opened handcuffs

Parole is the early, conditional release of a convicted prisoner. A parole-eligible sentence usually includes a range, for example 3 – 6 years. After serving three years, the inmate appears before a review board for a determination parole eligibility. As with probation, a parolee is supervised by a government entity (a parole officer). Parole is discretionary in some countries and mandatory in others.

In the United States, the federal sentencing guidelines eliminated parole, but parole is still used by the criminal justice systems of many states. Other countries permit conditional early release once a prisoner has served a set amount of their original sentence. More information about early release/parole models can be found here.

More information about sentencing practices can be found here.

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In some countries, probation is called a “conditional sentence.” Successful completion is required to avoid incarceration. Historically, Western European countries enlisted volunteers and charitable organizations to provide probation services. Most now administer probation through the state. In the Netherlands and Austria, private organizations provide probation services under the supervision of the ministry of justice. In Georgia, the National Probation Agency oversees probation. The term of probation cannot exceed six years. In Trinidad and Tobago, probation services fall under the Ministry of National Security. Japan has a mixed system. Volunteer probation officers cooperate with professional officers and offer support to offenders reentering society.

In England and Wales, probation services are overseen by the National Offender Management Service, an executive agency within the Ministry of Justice. The National Offender Management Service then contracts with local “probation trusts”—private entities funded and held accountable by the government.

Image of a probation officer

In Hungary, probation or a conditional sentence is only available for minor offenses with a term of imprisonment of up to three years. The Central Office of Justice manages the probation service. In Spain, no independent probation organization exists. Instead, social workers, psychologists, lawyers, educators, and administrative staff employed by the penitentiary provide probation services. In Germany, a long history of private-sector support for offenders exists, with private organizations having administered support services to released prisoners well into the twentieth century. Now, probation officers work within the prison system and provide a variety of services from supervision of offenders serving suspended sentences to investigation of an offender’s personality to assisting with victim-offender mediation and community service.

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In inquisitorial systems, the defense, prosecution, victim, and civil party all have a right of appeal. The prosecution’s right to appeal an acquittal is considered an opportunity to correct factual errors. Most jurisdictions allow for multiple appeals. The initial review is de novo, which is essentially a new trial, and not considered double jeopardy. In some countries, the appellate panel makes factual findings based on the record and can also request new evidence and witness testimony. Mexico permits multiple interlocutory appeals, including on the issuance of warrants and, if the defendant is out on bail, any trial order. In Russia, even a jury verdict of not guilty can be reversed on appeal and the case retried; if the prosecution or defense discovers new evidence—at any stage of a proceeding and post conviction—it can petition the court for review.

In many civil-law countries, the court of cassation is the highest court of appeals and its role is to harmonize case law and legal texts. In France, the Cour de Cassation reviews criminal (and civil) cases that present legal issues in need of clarification. Egypt’s court of cassation can reverse judgments unsupported by the evidence.

Quebec Court of Appeal
If a case has been reversed twice, a final trial is conducted by a special panel of five cassation judges. Turkey’s court of cassation, the Yargitay, is the court of last resort and the court of first and last instance for a prescribed set of legal issues. For more information on high courts of appeal in different countries, please click here.


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