Document Type

Article

Disciplines

International Law

Abstract

The most popular criminal justice system the world over is not the one found in the United States. The United States uses the "adversarial" or "accusatorial" system, in which defense and prosecution are pitted against each other under the supervision of a neutral judge, the fate of the case decided by a lay jury. This is the simple picture anyway. In the inquisitorial system, the judge (or judges, or a mixed panel of lay and professional judges) rule supreme over a neutral presentation of evidence by a detached prosecutor, with rebuttals from the defense. From this simple description, the differences may not seem great, and it may not be clear why one system would be better than the other at fighting complex crime, such as terrorism. And maybe, in reality, neither is better than the other. Yet, in states around the world that are confronting the threat of terrorism, the popular inquisitorial system is giving way to adversarial procedures. Why?

There are three main explanations to consider for the expansion of adversarial procedures in terrorism states: (1) because adversarial procedures work better in a good way (e.g., are better at fighting terrorism with no or minimal compromises in fairness to the defendant); (2) because adversarial procedures work better in a bad way (e.g., they make convictions or lengthy sentences easier to obtain but not more just-and perhaps even significantly less fair to the defendant); or (3) because counterterrorism states are influenced by other states who are successfully fighting terrorism using adversarial procedures-the United Kingdom or Israel perhapsbut most likely the United States. Which best explains this move?

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